A VOLUNTARY RESIGNATION OR AN INVOLUNTARY
TERMINATION SHALL BE COMMUNICATED BY A NOTICE OF TERMINATION TO THE OTHER PARTY
HERETO GIVEN IN ACCORDANCE WITH SECTION 10 (A) OF THIS AGREEMENT.
SUCH NOTICE
SHALL INDICATE THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON,
SHALL SET FORTH IN REASONABLE DETAIL THE FACTS AND CIRCUMSTANCES CLAIMED TO
PROVIDE A BASIS FOR TERMINATION UNDER THE PROVISION SO INDICATED, AND SHALL
SPECIFY THE TERMINATION DATE (WHICH SHALL BE NOT MORE THAN THIRTY (30) DAYS
AFTER THE GIVING OF SUCH NOTICE).
THE FAILURE BY THE EMPLOYEE TO INCLUDE IN THE
NOTICE ANY FACT OR CIRCUMSTANCE WHICH CONTRIBUTES TO A SHOWING OF
8
INVOLUNTARY TERMINATION SHALL NOT WAIVE ANY RIGHT OF THE EMPLOYEE HEREUNDER OR
PRECLUDE THE EMPLOYEE FROM ASSERTING SUCH FACT OR CIRCUMSTANCE IN ENFORCING HIS
RIGHTS HEREUNDER.
11.
MISCELLANEOUS PROVISIONS.
(A)
NO DUTY TO MITIGATE.
THE EMPLOYEE SHALL NOT BE REQUIRED TO
MITIGATE THE AMOUNT OF ANY PAYMENT CONTEMPLATED BY THIS AGREEMENT, NOR SHALL ANY
SUCH PAYMENT BE REDUCED BY ANY EARNINGS THAT THE EMPLOYEE MAY RECEIVE FROM ANY
OTHER SOURCE.
(B)
WAIVER.
NO PROVISION OF THIS AGREEMENT SHALL BE MODIFIED, WAIVED
OR DISCHARGED UNLESS THE MODIFICATION, WAIVER OR DISCHARGE IS AGREED TO IN
WRITING AND SIGNED BY THE EMPLOYEE AND BY AN AUTHORIZED OFFICER OF THE COMPANY
(OTHER THAN THE 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
SHALL BE CONSIDERED A WAIVER OF ANY OTHER CONDITION OR PROVISION OR OF THE SAME
CONDITION OR PROVISION AT ANOTHER TIME.
(C)
WHOLE AGREEMENT.
THIS AGREEMENT AND ANY OUTSTANDING STOCK OPTION
AGREEMENTS REPRESENT THE ENTIRE UNDERSTANDING OF THE PARTIES HERETO WITH RESPECT
TO THE SUBJECT MATTER HEREOF AND SUPERSEDES IN THEIR ENTIRETY ALL PRIOR
ARRANGEMENTS AND UNDERSTANDINGS REGARDING SAME, INCLUDING THE CHANGE OF CONTROL
SEVERANCE AGREEMENT PREVIOUSLY ENTERED INTO BY AND BETWEEN EMPLOYEE AND THE
COMPANY AND ANY OFFER LETTER, PROMOTION LETTER, EMPLOYMENT AGREEMENT OR OTHER
AGREEMENT REGARDING EMPLOYEE'S EMPLOYMENT TERMS WITH THE COMPANY.
OTHER THAN
THE AGREEMENTS DESCRIBED IN THE PRECEDING SENTENCE, NO AGREEMENTS,
REPRESENTATIONS OR UNDERSTANDINGS (WHETHER ORAL OR WRITTEN AND WHETHER EXPRESS
OR IMPLIED) WHICH ARE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT HAVE BEEN MADE
OR ENTERED INTO BY EITHER PARTY WITH RESPECT TO THE SUBJECT MATTER HEREOF.
(D)
CHOICE OF LAW.
THE VALIDITY, INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF ARIZONA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(E)
SEVERABILITY.
THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION
OR PROVISIONS OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY
OF ANY OTHER PROVISION HEREOF, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
(F)
WITHHOLDING.
ALL PAYMENTS MADE PURSUANT TO THIS AGREEMENT WILL
BE SUBJECT TO WITHHOLDING OF APPLICABLE INCOME AND EMPLOYMENT TAXES.
(G)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS,
EACH OF WHICH SHALL BE DEEMED