7(E), EXECUTIVE AGREES THAT
ANY BREACH BY HIM OF SECTIONS 9, 10, 11, AND 12 PERTAINING TO NO
HIRE/NON-SOLICITATION, NON-COMPETITION, CONFIDENTIALITY AND NONDISCLOSURE AND
NON-DISPARAGEMENT WILL ENTITLE THE COMPANY TO DISCONTINUE ANY PAYMENTS SPECIFIED
IN SECTIONS 3, 5 OR 6 ABOVE, FOR WHICH EXECUTIVE MIGHT BE ELIGIBLE BASED ON THE
TERMS OF THOSE SECTIONS AND TO ANY OTHER REMEDY AVAILABLE AT LAW OR IN EQUITY.
NOTWITHSTANDING THE SUSPENSION OR DISCONTINUATION OF ANY SUCH PAYMENTS,
EXECUTIVE AGREES THAT THE COMPANY IS ENTITLED TO INSIST ON FULL COMPLIANCE BY
21
EXECUTIVE WITH THE FULL TERMS, INCLUDING TIME PERIODS, DESCRIBED IN HIS PROMISES
NOT TO HIRE/SOLICIT, COMPETE, DISCLOSE CONFIDENTIAL INFORMATION OR TRADE SECRETS
OR DISPARAGE.
ANY DELAY BY THE COMPANY IN DISCONTINUING PAYMENT SHALL NOT BE
CONSTRUED AS A WAIVER OF ANY RIGHTS TO DISCONTINUE PAYMENT.
14.
RECOUPMENT.
IN THE EVENT THE BOARD DETERMINES THAT EXECUTIVE HAS ENGAGED
IN NEGLIGENCE OR FRAUDULENT OR INTENTIONAL MISCONDUCT THAT HAS RESULTED IN A
SIGNIFICANT RESTATEMENT OF THE COMPANY'S FINANCIAL RESULTS AND, HAD THE RESULTS
BEEN PROPERLY CALCULATED, EXECUTIVE WOULD HAVE RECEIVED LESS COMPENSATION, THE
EXECUTIVE ACKNOWLEDGES THAT, UPON THE BOARD'S WRITTEN NOTICE TO EXECUTIVE,
EXECUTIVE SHALL REIMBURSE TO THE COMPANY ANY PORTION OF ANY PERFORMANCE-BASED OR
INCENTIVE COMPENSATION PAID OR AWARDED TO EXECUTIVE, WHETHER CASH OR
EQUITY-BASED, IN ALL YEARS THAT IS GREATER THAN WOULD HAVE BEEN PAID OR AWARDED
CALCULATED BASED UPON THE RESTATED FINANCIAL RESULTS.
WITHOUT LIMITING THE
FOREGOING, THE BOARD SHALL SEEK RECOUPMENT IN ALL INSTANCES WHERE SECTION 304 OF
THE SARBANES-OXLEY ACT OF 2002 REQUIRES THE COMPANY TO SEEK RECOUPMENT.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPANY'S REMEDIES AT LAW FOR A
BREACH OR THREATENED BREACH OF ANY OF SECTION 9, 10, 11, 12 OR 13 OF THIS
AGREEMENT WOULD BE INADEQUATE AND, IN RECOGNITION OF THIS FACT, EXECUTIVE AGREES
THAT, IN THE EVENT OF SUCH A BREACH OR THREATENED BREACH, IN ADDITION TO ANY
REMEDIES AT LAW, EXECUTIVE SHALL FORFEIT ALL PAYMENTS OTHERWISE DUE UNDER
SECTIONS 5, 6 AND 7 OF THIS AGREEMENT AND SHALL RETURN TO THE COMPANY ANY
SEVERANCE PAY MADE TO EXECUTIVE PRIOR TO SUCH FORFEITURE.
THIS SECTION 14 SHALL
NOT LIMIT THE COMPANY'S ENTITLEMENT TO TAKE OTHER APPROPRIATE ACTIONS WITH
RESPECT TO EXECUTIVE UP TO AND INCLUDING THE TERMINATION OF EXECUTIVE'S
EMPLOYMENT.
15.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE ILLEGAL,
INVALID OR UNENFORCEABLE UNDER PRESENT OR FUTURE LAWS EFFECTIVE DURING THE TERM
OF THIS AGREEMENT, SUCH PROVISION SHALL BE FULLY SEVERABLE AND THIS AGREEMENT
SHALL BE CONSTRUED AND ENFORCED AS IF SUCH ILLEGAL, INVALID OR UNENFORCEABLE
PROVISION NEVER CONSTITUTED A PART OF THIS AGREEMENT; AND THE REMAINING
PROVISIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL NOT
BE AFFECTED BY THE ILLEGAL, INVALID OR UNENFORCEABLE PROVISION OR BY ITS
SEVERANCE HEREFROM.
FURTHERMORE, IN LIEU OF SUCH ILLEGAL, INVALID OR
UNENFORCEABLE PROVISION, THERE SHALL BE ADDED AS PART OF THIS AGREEMENT, A
PROVISION AS SIMILAR IN ITS TERMS TO SUCH ILLEGAL, INVALID OR ENFORCEABLE
PROVISION AS MAY BE