AN ELECTION OF REMEDIES FOR ACTUAL DAMAGES, TO THE
EXTENT THAT IT CAN PROVE RECOVERABLE ACTUAL DAMAGES IN EXCESS OF THE LIQUIDATED
DAMAGES STATED IN THIS SECTION OF THE AGREEMENT.
NOTWITHSTANDING ANY
REQUIREMENT THAT THE EMPLOYEE PAY DAMAGES AS PROVIDED IN THIS SECTION, THE
REMAINING PROVISIONS OF THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
10.
RESIGNATION; SECURITIES FILINGS:
AS OF THE
EFFECTIVE DATE, THE EMPLOYEE RESIGNS FROM HIS EMPLOYMENT WITH THE COMPANY AND
ALL COMPANY AFFILIATES AND SUBSIDIARIES, AS APPLICABLE, AND FROM ANY AND ALL
POSITIONS AS AN OFFICER OR DIRECTOR, OR BOTH, OF THE COMPANY AND ALL COMPANY
AFFILIATES AND SUBSIDIARIES.
THIS AGREEMENT WILL BE DISCLOSED IN AN 8-K FILING
AND/OR OTHER REQUIRED SECURITIES FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION, AS APPLICABLE.
11.
WAIVER OF RE-EMPLOYMENT:
THE EMPLOYEE
WAIVES AND RELEASES FOREVER ANY RIGHT OR RIGHTS HE MIGHT HAVE TO EMPLOYMENT,
REEMPLOYMENT, OR REINSTATEMENT WITH THE COMPANY FOR NOW AND ANY TIME IN THE
FUTURE, AND AGREES NOT TO SEEK OR MAKE APPLICATION FOR EMPLOYMENT WITH THE
COMPANY.
12.
SECTION 409A COMPLIANCE:
THIS AGREEMENT
SHALL BE CONSTRUED AND INTERPRETED TO THE MAXIMUM EXTENT POSSIBLE IN A MANNER TO
AVOID ANY ADVERSE TAX CONSEQUENCES TO EMPLOYEE UNDER SECTION 409A.
IF THE
COMPANY OR EMPLOYEE REASONABLY DETERMINES THAT ANY COMPENSATION OR BENEFITS
PAYABLE UNDER THIS AGREEMENT MAY BE SUBJECT TO SECTION 409A, THE COMPANY AND
EMPLOYEE SHALL WORK TOGETHER TO ADOPT SUCH AMENDMENTS TO THIS AGREEMENT OR ADOPT
OTHER POLICIES OR PROCEDURES (INCLUDING AMENDMENTS, POLICIES AND PROCEDURES WITH
RETROACTIVE EFFECT), OR TAKE ANY OTHER COMMERCIALLY REASONABLE ACTIONS NECESSARY
OR APPROPRIATE TO:
(A) EXEMPT THE COMPENSATION AND BENEFITS PAYABLE UNDER THIS
AGREEMENT FROM SECTION 409A AND/OR TO PRESERVE THE INTENDED TAX TREATMENT OF THE
COMPENSATION AND BENEFITS PROVIDED WITH RESPECT TO THIS AGREEMENT OR (B) COMPLY
WITH THE REQUIREMENTS OF SECTION 409A.
13.
ENTIRE AGREEMENT:
THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH REGARD TO THE SUBJECT
MATTER OF THIS AGREEMENT, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS
NEGOTIATIONS AND AGREEMENTS, ORAL OR WRITTEN, WITH REGARD TO THE SAME SUBJECT
MATTER, EXCEPT FOR THE RESTRICTIVE COVENANTS.
ALL PRIOR AND CONTEMPORANEOUS
NEGOTIATIONS AND AGREEMENTS REGARDING THE SUBJECT MATTER OF THIS AGREEMENT ARE
DEEMED INCORPORATED AND MERGED INTO THIS AGREEMENT AND ARE DEEMED TO HAVE BEEN
ABANDONED IF NOT SO INCORPORATED, SUBJECT TO THE EXCEPTIONS STATED IN THIS
SECTION.
IN THE EVENT OF AN IRRECONCILABLE CONFLICT BETWEEN THE SURVIVING
PROVISIONS OF EXHIBIT A AND THE PROVISIONS OF THIS AGREEMENT, THIS AGREEMENT
SHALL GOVERN.
NO REPRESENTATIONS, ORAL OR WRITTEN, ARE BEING RELIED UPON BY
EITHER PARTY IN EXECUTING THIS AGREEMENT OTHER THAN THE EXPRESS REPRESENTATIONS
SET FORTH IN THIS AGREEMENT.
THE PARTIES HAVE EACH ENTERED INTO THIS AGREEMENT
BASED ON THEIR OWN INDEPENDENT JUDGMENT.
THIS AGREEMENT CANNOT BE CHANGED OR
TERMINATED WITHOUT THE EXPRESS WRITTEN CONSENT OF THE PARTIES.
5
14.
NON-WAIVER:
ONE OR MORE WAIVERS OF A BREACH
OF ANY COVENANT, TERM, OR PROVISION OF THIS AGREEMENT BY ANY PARTY SHALL NOT BE
CONSTRUED AS A WAIVER OF A