KNOWN GENERALLY TO THE PUBLIC (OTHER THAN AS A
RESULT OF UNAUTHORIZED DISCLOSURE BY THE EMPLOYEE OR ANY PERSON WITH THE
ASSISTANCE, CONSENT OR DIRECTION OF THE EMPLOYEE) OR ANY INFORMATION OF A TYPE
NOT OTHERWISE CONSIDERED CONFIDENTIAL BY PERSONS ENGAGED IN THE SAME BUSINESS OF
A BUSINESS SIMILAR TO THAT CONDUCTED BY COMPANY OR E&B OR ANY INFORMATION THAT
MUST BE DISCLOSED AS REQUIRED BY LAW.
10.
NOTICES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ANY NOTICE
REQUIRED OR PERMITTED TO BE GIVEN UNDER THIS AGREEMENT SHALL BE DEEMED PROPERLY
GIVEN IF IN WRITING AND IF MAILED BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID WITH RETURN RECEIPT REQUESTED, TO
11
EMPLOYEE'S RESIDENCE, IN THE CASE OF NOTICES TO EMPLOYEE, AND TO THE PRINCIPAL
EXECUTIVE OFFICES OF COMPANY AND E&B, IN THE CASE OF NOTICES TO COMPANY AND E&B.
11.
WAIVER. NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED, WAIVED OR
DISCHARGED UNLESS SUCH WAIVER, MODIFICATION OR DISCHARGE IS AGREED TO IN WRITING
AND SIGNED BY EMPLOYEE AND AN EMPLOYEE OFFICER SPECIFICALLY DESIGNATED BY THE
BOARD OF DIRECTORS OF E&B. NO WAIVER BY EITHER PARTY HERETO AT ANY TIME OF ANY
BREACH BY THE OTHER PARTY HERETO OF, OR COMPLIANCE WITH, ANY CONDITION OR
PROVISION OF THIS AGREEMENT TO SIMILAR OR DISSIMILAR PROVISIONS OR CONDITIONS AT
THE SAME OR AT ANY PRIOR OR SUBSEQUENT TIME.
12.
ASSIGNMENT. THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY ANY PARTY,
EXCEPT BY COMPANY AND E&B TO ANY SUCCESSOR IN INTEREST TO THEIR RESPECTIVE
BUSINESSES.
13.
ENTIRE AGREEMENT. THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
14.
SUCCESSORS, BINDING AGREEMENT.
(A)
COMPANY AND E&B WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR
INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION, OR OTHERWISE) TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESSES AND/OR ASSETS OF COMPANY AND E&B TO
EXPRESSLY ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO
THE SAME EXTENT THAT COMPANY AND E&B WOULD BE REQUIRED TO PERFORM IT IF NO SUCH
SUCCESSION HAD TAKEN PLACE. FAILURE BY COMPANY AND E&B TO OBTAIN SUCH ASSUMPTION
AND AGREEMENT PRIOR TO THE EFFECTIVENESS OF ANY SUCH SUCCESSION SHALL CONSTITUTE
A BREACH OF THIS AGREEMENT AND THE PROVISIONS OF SECTION 6 OF THIS AGREEMENT
SHALL APPLY. AS USED IN THIS AGREEMENT, "COMPANY" AND "E&B" SHALL MEAN COMPANY
AND E&B AS DEFINED PREVIOUSLY AND ANY SUCCESSOR TO THEIR RESPECTIVE BUSINESSES
AND/OR ASSETS AS AFORESAID WHICH ASSUMES AND AGREES TO PERFORM THIS AGREEMENT BY
OPERATION OF LAW OR OTHERWISE.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY
EMPLOYEE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS, HEIRS,
DISTRIBUTEES, DEVISEES AND LEGATEES. IF EMPLOYEE SHOULD DIE AFTER A NOTICE OF
TERMINATION IS DELIVERED BY EMPLOYEE, OR FOLLOWING TERMINATION OF EMPLOYEE'S
EMPLOYMENT WITHOUT CAUSE, AND ANY AMOUNTS WOULD BE PAYABLE TO EMPLOYEE UNDER
THIS AGREEMENT IF EMPLOYEE HAD CONTINUED TO LIVE, ALL SUCH AMOUNTS SHALL BE PAID
IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT TO EMPLOYEE'S DEVISEE,