WRITING SIGNED BY SUCH FIRST PARTY, AND NO SUCH WAIVER SHALL BE
DEEMED A WAIVER OF ANY SUBSEQUENT BREACH OR DEFAULT OF THE SAME OR ANY OTHER
NATURE.
6.6
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH
THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF, AND SUPERSEDES ANY AND ALL PRIOR AGREEMENTS BETWEEN THE COMPANY AND
EXECUTIVE, WHETHER WRITTEN OR ORAL, RELATING TO ANY OR ALL MATTERS COVERED BY
AND CONTAINED OR OTHERWISE DEALT WITH IN THIS AGREEMENT INCLUDING THAT CERTAIN
OFFER OF EMPLOYMENT DATED JANUARY 29, 2007.
THIS AGREEMENT DOES NOT CONSTITUTE
A COMMITMENT OF THE COMPANY WITH REGARD TO EXECUTIVE'S EMPLOYMENT, EXPRESS OR
IMPLIED, OTHER THAN TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN.
6.7
AMENDMENT.
NO MODIFICATION, CHANGE OR
AMENDMENT OF THIS AGREEMENT OR ANY OF ITS PROVISIONS SHALL BE VALID, UNLESS IN
WRITING AND SIGNED BY THE PARTY AGAINST WHOM SUCH CLAIMED MODIFICATION, CHANGE
OR AMENDMENT IS SOUGHT TO BE ENFORCED.
6.8
AUTHORITY.
THE PARTIES EACH REPRESENT AND
WARRANT THAT IT OR HE HAS THE POWER, AUTHORITY AND RIGHT TO ENTER INTO THIS
AGREEMENT AND TO CARRY OUT AND PERFORM THE TERMS, COVENANTS AND CONDITIONS
HEREOF.
6.9
ATTORNEYS' FEES.
IF EITHER PARTY HERETO
COMMENCES AN ARBITRATION OR OTHER ACTION AGAINST THE OTHER PARTY TO ENFORCE ANY
OF THE TERMS HEREOF OR BECAUSE OF THE BREACH BY SUCH OTHER PARTY OF ANY OF THE
TERMS HEREOF, THE PREVAILING PARTY SHALL BE ENTITLED, IN ADDITION TO ANY OTHER
RELIEF GRANTED, TO ALL ACTUAL OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY SUCH
PREVAILING PARTY IN CONNECTION WITH SUCH ACTION, INCLUDING, WITHOUT LIMITATION,
ALL REASONABLE ATTORNEYS' FEES, AND A RIGHT TO SUCH COSTS AND EXPENSES SHALL BE
DEEMED TO HAVE ACCRUED UPON THE COMMENCEMENT OF SUCH ACTION AND SHALL BE
ENFORCEABLE WHETHER OR NOT SUCH ACTION IS PROSECUTED TO JUDGMENT.
6.10
TITLES.
THE TITLES OF THE SECTIONS OF THIS
AGREEMENT ARE INSERTED MERELY FOR CONVENIENCE AND EASE OF REFERENCE AND SHALL
NOT AFFECT OR MODIFY THE MEANING OF ANY OF THE TERMS, COVENANTS OR CONDITIONS OF
THIS AGREEMENT.
6.11
APPLICABLE LAW; CHOICE OF FORUM.
THIS AGREEMENT,
AND ALL OF THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN CONNECTION WITH THE
EMPLOYMENT RELATIONSHIP ESTABLISHED HEREBY, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA WITHOUT
GIVING EFFECT TO PRINCIPLES RELATING TO CONFLICTS OF LAW.
5
6.12
ARBITRATION.
6.12.1
SCOPE.
TO THE FULLEST EXTENT PERMITTED BY LAW,
EXECUTIVE AND THE COMPANY AGREE TO THE BINDING ARBITRATION OF ANY AND ALL
CONTROVERSIES, CLAIMS OR DISPUTES BETWEEN THEM ARISING OUT OF OR IN ANY WAY
RELATED TO THIS AGREEMENT, THE EMPLOYMENT RELATIONSHIP BETWEEN THE COMPANY AND
EXECUTIVE AND ANY DISPUTES UPON TERMINATION OF EMPLOYMENT, INCLUDING BUT NOT
LIMITED TO BREACH OF CONTRACT, TORT, DISCRIMINATION, HARASSMENT, WRONGFUL
TERMINATION, DEMOTION, DISCIPLINE, FAILURE TO ACCOMMODATE, FAMILY AND MEDICAL
LEAVE, COMPENSATION OR BENEFITS CLAIMS, CONSTITUTIONAL CLAIMS; AND ANY CLAIMS
FOR VIOLATION OF ANY LOCAL, STATE OR FEDERAL LAW, STATUTE, REGULATION OR
ORDINANCE OR COMMON LAW.
FOR THE PURPOSE