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c.
Entire Agreement
. Other than the COC Agreement, this Agreement is the entire agreement of the
parties with respect to its subject matter and no waiver, modification, or amendment of any of its provisions shall be
valid unless in writing and signed by both parties.
d.
Waiver of Breach
. The waiver of breach of any term or condition of this Agreement shall not be
deemed to constitute a waiver of any other term or condition of this Agreement.
e.
Severability
. Each substantive provision of this Agreement is a separate agreement, independently
supported by good and adequate consideration, and is severable from the other provisions of the Agreement. If any
provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision shall be reformed to resolve
the applicable issue while still achieving the intent of the provision to the maximum extent possible, and no other
provision of the agreement shall be affected or impaired in any way. With respect to any restrictive covenant, it is
understood and agreed that if a court of competent jurisdiction or a duly constituted arbitration panel refuses to enforce
any part of such restrictive covenant because it is unreasonable (whether as to geographic scope, duration, activity,
subject, or otherwise), the unenforceable provision shall not be void but rather shall be deemed reduced or limited to the
minimum extent necessary to permit enforcement of the covenant. For this purpose, the geographic scope, duration,
activity, and subject are divisible.
f.
Forfeiture of Certain Parachute Payments .
(i)
Notwithstanding any other provision of this Agreement, if paragraph (ii), below, applies,
Executive shall forfeit amounts payable to Executive under this Agreement to the extent that a certified
public accounting firm selected and paid by the Company (the “ Accounting Firm ”) determines
is
necessary to ensure that Executive is not reasonably likely to receive a “parachute payment”
within the
meaning of Section 280G(b)(2) of the Code. The Accounting Firm's determination shall be conclusive
and binding upon the Company and Executive.
(ii)
This paragraph (ii) shall apply if (and only if) (A) any payment to be made under this
Agreement is reasonably likely to result in Executive receiving a “parachute payment” (
as defined in
Section 280G(b)(2) of the Code), and (B) Executive's forfeiture of payments due under this Agreement
would result in the aggregate after-
tax amount that Executive would receive being greater than the
aggregate after-tax amount that Executive would receive if there were no such forfeiture.
(iii)
Neither the Company nor Executive shall have any discretion to determine which payments
are forfeited. The forfeiture shall apply in reverse chronological order- e.g.
, the last payment in any series
of payments shall be forfeited before any part of an earlier payment is forfeited.
g.
Survival
. The provisions of Sections 4 (Restrictive Covenants), 5 (Termination Rights and
Responsibilities), 6 (Specific Performance), 7 (Section 409A and Cash in Lieu of Benefits), 8 (Governing Law), and 9
(Miscellaneous Provisions) of this Agreement shall survive the termination of Executive's employment hereunder.
h.
Headings
. The headings of the sections and subsections are inserted for convenience only and shall not
be deemed to constitute a part hereof or to affect the meaning thereof.