ASSETS OF THE COMPANY IN WHICH THE COMPANY HAS INVESTED AND WILL CONTINUE TO
INVEST SUBSTANTIAL TIME, EFFORT AND EXPENSE.
ACCORDINGLY, EXECUTIVE
ACKNOWLEDGES AND AGREES THAT THE COMPANY'S REMEDIES AT LAW FOR A BREACH OR
THREATENED BREACH OF ANY OF THE PROVISIONS OF SECTION 3 OR SECTION 4 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, THE
COMPANY, WITHOUT POSTING ANY BOND, SHALL BE ENTITLED TO CEASE MAKING ANY
PAYMENTS OR PROVIDING ANY BENEFIT OTHERWISE REQUIRED TO BE PAID OR PROVIDED BY
THE COMPANY (OTHER THAN ANY VESTED BENEFITS UNDER ANY RETIREMENT PLAN OR AS MAY
OTHERWISE BE REQUIRED BY APPLICABLE LAW TO BE PROVIDED) AND SEEK EQUITABLE
RELIEF IN THE FORM OF SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
TEMPORARY OR PERMANENT INJUNCTION OR ANY OTHER EQUITABLE REMEDY WHICH MAY THEN
BE AVAILABLE; PROVIDED, HOWEVER, THAT IF IT IS SUBSEQUENTLY DETERMINED IN A
FINAL AND BINDING ARBITRATION OR LITIGATION THAT EXECUTIVE DID NOT BREACH ANY
SUCH PROVISION, THE COMPANY WILL PROMPTLY PAY ANY PAYMENTS OR PROVIDE ANY
BENEFITS, WHICH THE
9
COMPANY MAY HAVE CEASED TO PAY WHEN ORIGINALLY DUE AND PAYABLE, PLUS AN
ADDITIONAL AMOUNT EQUAL TO INTEREST (CALCULATED BASED ON THE APPLICABLE FEDERAL
RATE FOR THE MONTH IN WHICH SUCH FINAL DETERMINATION IS MADE) ACCRUED ON THE
APPLICABLE PAYMENT OR THE AMOUNT OF THE BENEFIT, AS APPLICABLE, BEGINNING FROM
THE DATE SUCH PAYMENT OR BENEFIT WAS ORIGINALLY DUE AND PAYABLE THROUGH THE DAY
PRECEDING THE DATE ON WHICH SUCH PAYMENT OR BENEFIT IS ULTIMATELY PAID
HEREUNDER.
6.
TAX PROVISIONS.
All payments due to Executive hereunder shall be subject to all applicable taxes
required to be withheld by the Company pursuant to federal, state or local law.
Executive shall be solely responsible for income and earnings taxes imposed on
Executive by reason of any cash or non-cash compensation and benefits provided
hereunder.
No person connected with this Agreement, including but not limited
to the Company, or its officers, directors, agents or employees, makes any
representation, commitment or guarantee with respect to the Federal, state or
local income, estate and/or gift tax treatment of any benefit paid hereunder
including, without limitation, under Section 409A of the Code.
7.
SUCCESSORS, BINDING AGREEMENT ENTIRE
AGREEMENT.
A.
THIS AGREEMENT SHALL NOT BE ASSIGNABLE
BY THE EXECUTIVE.
THIS AGREEMENT MAY BE ASSIGNED BY THE COMPANY TO ANY
AFFILIATE OR TO ANY OTHER PERSON THAT IS A SUCCESSOR IN INTEREST TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OPERATIONS OF THE COMPANY.
B.
THIS AGREEMENT SHALL BE BINDING UPON,
AND INURE TO THE BENEFIT OF, THE PARTIES HERETO AND RESPECTIVE SUCCESSORS, HEIRS
AND PERMITTED ASSIGNS.
C.
THIS AGREEMENT SETS FORTH THE ENTIRE
AGREEMENT AND SUPERSEDES ALL PRIOR AGREEMENTS, WRITTEN OR ORAL, BETWEEN THE
PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
8.
NOTICES.
FOR THE PURPOSE OF THIS
AGREEMENT, NOTICES AND ALL OTHER COMMUNICATIONS PROVIDED FOR IN THIS AGREEMENT
SHALL BE IN WRITING AND