in addition to all other remedies Company
may seek a temporary and permanent restraining order for the enforcement of this
paragraph.
11.
SURVIVAL CLAUSE AND REMEDIES
All terms and conditions of this Agreement shall survive the Separation
Date.
If Executive should die while any payment, benefit or entitlement is due
to him pursuant to this Agreement, such payment, benefit or entitlement shall be
paid or provided to his designated beneficiary (or, if there is no designated
beneficiary, his estate).
Executive shall have no duty of mitigation with
respect to amounts payable to him under this Agreement or other benefits to
which he is entitled pursuant hereto.
In addition, Company's obligation to pay
Executive the amounts provided and to make the arrangements provided hereunder
shall not be subject to set-off, counterclaim or recoupment of amounts owed by
Executive to Company or its affiliates.
12.
MISCELLANEOUS
a.
Sections 22 and 23 of the Employment Agreement are incorporated in
full into this Agreement, provided that any reference to "the Agreement" or
"this Agreement" in such paragraphs shall be deemed to be a reference to this
Agreement.
In addition, Company and Executive agree to cooperate in rebutting
any presumption that Executive's termination was in connection with a change in
control.
b.
In the event there is a conflict between any provision of this
Agreement and any other agreement, plan, policy or program of Company, the
provisions of this Agreement shall control.
c.
This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto, any successors or assigns of Company and Executive's heirs
and the personal representative of Executive's estate.
d.
Company will pay Executive's legal fees incurred in connection with
executing this Agreement, not to exceed $5,000 in the aggregate.
13.
WAIVER AND ACKNOWLEDGMENT BY EXECUTIVE
I HAVE READ AND UNDERSTAND THIS AGREEMENT AND BY SIGNING BELOW, HEREBY AGREE TO
THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
I CERTIFY BY MY SIGNATURE
THAT I COMPLETELY UNDERSTAND AND AGREE TO THE FOREGOING TERMS AND CONDITIONS IN
THEIR ENTIRETY AS SET FORTH HERETO.
I FURTHER CERTIFY BY MY SIGNATURE BELOW THAT I HAVE BEEN AFFORDED A REASONABLE
TIME TO READ AND UNDERSTAND EVERYTHING CONTAINED IN THIS AGREEMENT AND THAT I
UNEQUIVOCALLY AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT AS SET
FORTH HERETO AFTER BEING GIVEN A REASONABLE TIME TO READ AND UNDERSTAND THIS
AGREEMENT.
I HEREBY CERTIFY BY MY SIGNATURE THAT I WAS GIVEN A FULL AND FAIR OPPORTUNITY
AND A REASONABLE TIME TO CONSULT MY OWN ATTORNEY WITH RESPECT TO THIS AGREEMENT
BEFORE SIGNING IT.
I HEREBY ACKNOWLEDGE THAT I AM SIGNING THIS AGREEMENT KNOWINGLY AND VOLUNTARILY
AND HAVE NOT BEEN PRESSURED OR COERCED IN ANY WAY INTO SIGNING IT.
I FURTHER ACKNOWLEDGE THAT:
(A)
I HAVE BEEN ADVISED TO CONSULT AN ATTORNEY BEFORE SIGNING THIS
AGREEMENT, AND HAD THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY OF MY CHOOSING;
(B)
I HAVE RELIED SOLELY ON MY OWN JUDGMENT AND/OR THAT OF MY ATTORNEY
REGARDING