ANY PAYMENTS DELAYED IN ACCORDANCE WITH THIS PARAGRAPH WILL BE PAYABLE IN A
LUMP SUM AS SOON AS ADMINISTRATIVELY PRACTICABLE AFTER THE DATE OF EMPLOYEE'S
DEATH AND ALL OTHER DEFERRED COMPENSATION SEPARATION BENEFITS WILL BE PAYABLE IN
ACCORDANCE WITH THE PAYMENT SCHEDULE APPLICABLE TO EACH PAYMENT OR BENEFIT.
IT
IS THE INTENT OF THIS AGREEMENT TO COMPLY WITH THE REQUIREMENTS OF SECTION 409A
SO THAT NONE OF THE SEVERANCE PAYMENTS AND BENEFITS TO BE PROVIDED HEREUNDER
WILL BE SUBJECT TO THE ADDITIONAL TAX IMPOSED UNDER SECTION 409A, AND ANY
AMBIGUITIES HEREIN WILL BE INTERPRETED TO SO COMPLY.
(B)
NO DUTY TO MITIGATE.
EMPLOYEE WILL NOT BE REQUIRED TO MITIGATE
THE AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS AGREEMENT, NOR WILL ANY SUCH
PAYMENT BE REDUCED BY ANY EARNINGS THAT EMPLOYEE MAY RECEIVE FROM ANY OTHER
SOURCE.
(C)
WAIVER.
NO PROVISION OF THIS AGREEMENT WILL BE MODIFIED, WAIVED
OR DISCHARGED UNLESS THE MODIFICATION, WAIVER OR DISCHARGE IS AGREED TO IN
WRITING AND SIGNED BY EMPLOYEE AND BY AN AUTHORIZED OFFICER OF THE COMPANY
(OTHER THAN EMPLOYEE).
NO WAIVER BY EITHER PARTY OF ANY BREACH OF, OR OF
COMPLIANCE WITH, ANY CONDITION OR PROVISION OF THIS AGREEMENT BY THE OTHER PARTY
WILL BE CONSIDERED A WAIVER OF ANY OTHER CONDITION OR PROVISION OR OF THE SAME
CONDITION OR PROVISION AT ANOTHER TIME.
(D)
HEADINGS.
ALL CAPTIONS AND SECTION HEADINGS USED IN THIS
AGREEMENT ARE FOR CONVENIENT REFERENCE ONLY AND DO NOT FORM A PART OF THIS
AGREEMENT.
(E)
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
OF THE PARTIES HERETO AND SUPERSEDES IN THEIR ENTIRETY ALL PRIOR
REPRESENTATIONS, UNDERSTANDINGS, UNDERTAKINGS OR AGREEMENTS (WHETHER ORAL OR
WRITTEN AND WHETHER EXPRESSED OR IMPLIED) OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, INCLUDING (WITHOUT LIMITATION) THE EMPLOYMENT
AGREEMENT).
NO FUTURE AGREEMENTS BETWEEN THE COMPANY AND EMPLOYEE MAY SUPERSEDE
THIS AGREEMENT, UNLESS THEY ARE IN WRITING AND SPECIFICALLY MENTION THIS
AGREEMENT.
WITH RESPECT TO EQUITY AWARDS GRANTED ON OR AFTER THE DATE HEREOF,
THE ACCELERATION OF VESTING PROVIDED HEREIN WILL APPLY TO SUCH AWARDS EXCEPT TO
THE
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EXTENT OTHERWISE EXPLICITLY PROVIDED IN THE APPLICABLE EQUITY AWARD AGREEMENT,
WHICH PROVISION MUST INCLUDE A REFERENCE TO THIS AGREEMENT.
(F)
CHOICE OF LAW.
THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT
REFERENCE TO ITS CHOICE OF LAWS PROVISIONS) WILL GOVERN THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT.
(G)
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION
OR PROVISIONS OF THIS AGREEMENT WILL NOT AFFECT THE VALIDITY OR ENFORCEABILITY
OF ANY OTHER PROVISION HEREOF, WHICH WILL REMAIN IN FULL FORCE AND EFFECT.
(H)
WITHHOLDING.
ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT WILL BE
SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND EMPLOYMENT TAXES.
(I)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS,
EACH OF WHICH WILL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH TOGETHER WILL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
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IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of