EITHER PARTY SHOULD WAIVE ANY BREACH OF ANY PROVISIONS
OF THIS AGREEMENT, THAT PARTY SHALL NOT THEREBY BE DEEMED TO HAVE WAIVED ANY
PRECEDING OR SUCCEEDING BREACH OF THE SAME OR ANY OTHER PROVISION OF THIS
AGREEMENT.
8.4
COMPLETE AGREEMENT. THIS AGREEMENT, INCLUDING EXHIBIT A,
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN EMPLOYEE AND THE COMPANY AND IT IS THE
COMPLETE, FINAL, AND EXCLUSIVE EMBODIMENT OF THEIR AGREEMENT WITH REGARD TO THIS
SUBJECT MATTER AND SUPERSEDES AND REPLACES ANY PRIOR UNDERSTANDINGS, WHETHER
ORAL OR WRITTEN, ON THE SUBJECT MATTER SET FORTH HEREIN, INCLUDING BUT NOT
LIMITED TO ANY CHANGE OF CONTROL RETENTION AGREEMENT PREVIOUSLY ENTERED INTO
BETWEEN EMPLOYEE AND THE COMPANY. THIS AGREEMENT IS ENTERED INTO WITHOUT
RELIANCE ON ANY PROMISE OR REPRESENTATION OTHER THAN THOSE EXPRESSLY CONTAINED
HEREIN.
8.5
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN SEPARATE
COUNTERPARTS, ANY ONE OF WHICH NEED NOT CONTAIN SIGNATURES OF MORE THAN ONE
PARTY, BUT ALL OF WHICH TAKEN TOGETHER WILL CONSTITUTE ONE AND THE SAME
AGREEMENT.
8.6
HEADINGS. THE HEADINGS OF THE ARTICLES AND SECTIONS HEREOF ARE
INSERTED FOR CONVENIENCE ONLY AND SHALL NEITHER BE DEEMED TO CONSTITUTE A PART
HEREOF NOR TO AFFECT THE MEANING THEREOF.
11
8.7
SUCCESSORS AND ASSIGNS. THIS AGREEMENT IS INTENDED TO BIND AND
INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY EMPLOYEE AND THE COMPANY, AND
THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS, EXECUTORS AND ADMINISTRATORS,
EXCEPT THAT EMPLOYEE MAY NOT DELEGATE ANY OF EMPLOYEE'S DUTIES HEREUNDER AND MAY
NOT ASSIGN ANY OF EMPLOYEE'S RIGHTS HEREUNDER WITHOUT THE WRITTEN CONSENT OF THE
COMPANY, WHICH CONSENT SHALL NOT BE WITHHELD UNREASONABLY. ANY SUCCESSOR TO THE
COMPANY (WHETHER DIRECT OR INDIRECT AND WHETHER BY PURCHASE, MERGER,
CONSOLIDATION, LIQUIDATION OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE
COMPANY'S BUSINESS AND/OR ASSETS SHALL ASSUME THE COMPANY'S OBLIGATIONS UNDER
THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT AS THE COMPANY WOULD BE
REQUIRED TO PERFORM SUCH OBLIGATIONS IN THE ABSENCE OF A SUCCESSION. FOR ALL
PURPOSES UNDER THIS AGREEMENT, THE TERM "COMPANY" SHALL INCLUDE ANY SUCCESSOR TO
THE COMPANY'S BUSINESS AND/OR ASSETS, WHETHER OR NOT SUCH SUCCESSOR EXECUTES AND
DELIVERS AN ASSUMPTION AGREEMENT REFERRED TO IN THE PRECEDING SENTENCE OR
BECOMES BOUND BY THE TERMS OF THIS AGREEMENT BY OPERATION OF LAW OR OTHERWISE.
8.8
ATTORNEY FEES. IF EITHER PARTY HERETO BRINGS ANY ACTION TO ENFORCE
SUCH PARTY'S RIGHTS HEREUNDER, THE PREVAILING PARTY IN ANY SUCH ACTION SHALL BE
ENTITLED TO RECOVER SUCH PARTY'S REASONABLE ATTORNEYS' FEES AND COSTS INCURRED
IN CONNECTION WITH SUCH ACTION.
8.9
ARBITRATION. IN ORDER TO ENSURE RAPID AND ECONOMICAL RESOLUTION OF
ANY DISPUTE WHICH MAY ARISE UNDER THIS AGREEMENT, EMPLOYEE AND THE COMPANY AGREE
THAT ANY AND ALL DISPUTES OR CONTROVERSIES, ARISING FROM OR REGARDING THE
INTERPRETATION, PERFORMANCE, ENFORCEMENT OR TERMINATION OF THIS AGREEMENT SHALL
SUBMITTED TO JAMS FOR NON-BINDING MEDIATION. IF COMPLETE AGREEMENT CANNOT BE
REACHED WITHIN 60 DAYS AFTER THE DATE OF SUBMISSION TO MEDIATION, ANY REMAINING
ISSUES WILL BE SUBMITTED TO JAMS TO BE RESOLVED BY FINAL AND BINDING ARBITRATION