THEY MAY EXIST FROM TIME TO
TIME.
(G)
SURVIVAL OF PROVISIONS.
THE OBLIGATIONS
CONTAINED IN THIS SECTION 2 SHALL, TO THE EXTENT PROVIDED IN THIS SECTION 2,
SURVIVE THE TERMINATION OR EXPIRATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY
AND, AS APPLICABLE, SHALL BE FULLY ENFORCEABLE THEREAFTER IN
6
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IF IT IS DETERMINED BY A COURT OF
COMPETENT JURISDICTION THAT ANY RESTRICTION IN THIS SECTION 2 IS EXCESSIVE IN
DURATION OR SCOPE OR IS UNREASONABLE OR UNENFORCEABLE UNDER APPLICABLE LAW, IT
IS THE INTENTION OF THE PARTIES THAT SUCH RESTRICTION MAY BE MODIFIED OR AMENDED
BY THE COURT TO RENDER IT ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
3.
TERMINATION OF PRIOR AGREEMENTS.
EXCEPT FOR ANY AGREEMENTS BETWEEN EXECUTIVE AND THE COMPANY RELATING TO
CURRENTLY OUTSTANDING EQUITY AWARDS AS OF THE DATE OF THIS AGREEMENT (WHICH
REMAIN OUTSTANDING), THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE
PARTIES AND, AS OF THE EFFECTIVE DATE, TERMINATES AND SUPERSEDES ANY AND ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS (WHETHER WRITTEN OR ORAL) BETWEEN THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT NEITHER THE COMPANY NOR ANYONE ACTING ON ITS BEHALF
HAS MADE, AND IS NOT MAKING, AND IN EXECUTING THIS AGREEMENT, EXECUTIVE HAS NOT
RELIED UPON, ANY REPRESENTATIONS, PROMISES OR INDUCEMENTS EXCEPT TO THE EXTENT
THE SAME IS EXPRESSLY SET FORTH IN THIS AGREEMENT.
4.
ASSIGNMENT; SUCCESSORS.
THIS AGREEMENT
IS PERSONAL IN ITS NATURE AND NONE OF THE PARTIES HERETO SHALL, WITHOUT THE
CONSENT OF THE OTHERS, ASSIGN OR TRANSFER THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER; PROVIDED, THAT THE COMPANY MAY ASSIGN THIS AGREEMENT TO,
OR ALLOW ANY OF ITS OBLIGATIONS TO BE FULFILLED BY, OR TAKE ACTIONS THROUGH, ANY
AFFILIATE OF THE COMPANY (WHICH AFFILIATE CLEARLY HAS SUFFICIENT ASSETS TO
SATISFY THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT) AND, IN THE EVENT OF THE
MERGER, CONSOLIDATION, TRANSFER, OR SALE OF ALL OR SUBSTANTIALLY ALL OF THE
ASSETS OF THE COMPANY (A "TRANSACTION") WITH OR TO ANY OTHER INDIVIDUAL OR
ENTITY, THIS AGREEMENT SHALL, SUBJECT TO THE PROVISIONS HEREOF, BE BINDING UPON
AND INURE TO THE BENEFIT OF SUCH SUCCESSOR AND SUCH SUCCESSOR SHALL DISCHARGE
AND PERFORM ALL THE PROMISES, COVENANTS, DUTIES, AND OBLIGATIONS OF THE COMPANY
HEREUNDER, AND IN THE EVENT OF ANY SUCH ASSIGNMENT OR TRANSACTION, ALL
REFERENCES HEREIN TO THE "COMPANY" SHALL REFER TO THE COMPANY'S ASSIGNEE OR
SUCCESSOR HEREUNDER.
5.
WITHHOLDING.
THE COMPANY SHALL MAKE
SUCH DEDUCTIONS AND WITHHOLD SUCH AMOUNTS FROM EACH PAYMENT AND BENEFIT MADE OR
PROVIDED TO EXECUTIVE HEREUNDER, AS MAY BE REQUIRED FROM TIME TO TIME BY
APPLICABLE LAW, GOVERNMENTAL REGULATION OR ORDER.
6.
SECTION 409A.
(A)
FOR PURPOSES OF THIS AGREEMENT, A
"SEPARATION FROM SERVICE" OCCURS WHEN EXECUTIVE DIES, RETIRES OR OTHERWISE HAS A
TERMINATION OF EMPLOYMENT WITH THE COMPANY THAT CONSTITUTES A "SEPARATION FROM
SERVICE" WITHIN THE MEANING OF TREASURY REGULATION SECTION 1.409A-1(H)(1),
WITHOUT REGARD TO THE OPTIONAL ALTERNATIVE DEFINITIONS AVAILABLE THEREUNDER.
(B)
IF EXECUTIVE IS A