SENT BY BOTH FAX AND FIRST CLASS MAIL TO THE COMPANY IN CARE OF ITS ATTORNEY,
ROBERT SARFATIS, GARDERE WYNNE SEWELL LLP, 1601 ELM STREET, SUITE 3000, DALLAS,
TEXAS
75201-4761, FAX NUMBER (214) 999-3626.
IF EMPLOYEE REVOKES THIS
AGREEMENT, THE EMPLOYEE SHALL HAVE NO RIGHT OR ENTITLEMENT TO RECEIVE (AS
APPLICABLE) ANY OF THE SEVERANCE PROCEEDS OR REIMBURSEMENT FOR COBRA
CONTINUATION COVERAGE DESCRIBED IN SECTION 1 OF THIS AGREEMENT.
EMPLOYEE
UNDERSTANDS THAT IF THE COMPANY DOES NOT RECEIVE NOTICE OF REVOCATION PRIOR TO
THE EXPIRATION OF THE REVOCATION PERIOD, EMPLOYEE SHALL HAVE FOREVER WAIVED THE
RIGHT TO REVOKE THIS AGREEMENT, AND THIS AGREEMENT AND ALL OF ITS TERMS SHALL
HAVE FULL FORCE AND EFFECT.
7.
RETURN OF PROPERTY: THE EMPLOYEE SHALL
RETURN ALL COMPANY PROPERTY WITHIN EMPLOYEE'S POSSESSION, CUSTODY, OR CONTROL,
INCLUDING WITHOUT LIMITATION, ALL ORIGINALS AND COPIES OF ALL MATERIALS AND
DOCUMENTS, ALL EQUIPMENT, AND ALL HARDCOPY AND/OR COMPUTER-BASED DOCUMENTS,
BOOKS, RECORDS, VIDEOS, DISKS, DATA FILES, AUDIO AND VIDEO RECORDINGS, AND OTHER
THINGS PERTAINING TO THE COMPANY OR CONTAINING ITS INFORMATION, WHETHER OBTAINED
DIRECTLY OR INDIRECTLY FROM THE COMPANY AND WITH OR WITHOUT ITS KNOWLEDGE OR
CONSENT (COLLECTIVELY, "THE COMPANY INFORMATION"). THE EMPLOYEE WARRANTS AND
REPRESENTS THAT HE WILL NOT DIRECTLY OR INDIRECTLY DUPLICATE, REPLICATE, OR
OTHERWISE RETAIN ANY COPIES OF ANY COMPANY INFORMATION IN ANY FORM OR FASHION.
WITHIN THREE (3) BUSINESS DAYS OF EXECUTING THIS AGREEMENT, THE EMPLOYEE WILL
RETURN THE COMPANY INFORMATION BY HAND DELIVERY TO ROBERT SARFATIS, GARDERE
WYNNE SEWELL LLP, 1601 ELM STREET, SUITE 3000, DALLAS, TEXAS
75201-4761.
NOTWITHSTANDING THE FOREGOING PROVISIONS IN THIS SECTION 7, EMPLOYEE'S
ATTORNEY(S) MAY RETAIN INFORMATION AND DOCUMENTS PROVIDED TO THEM BY EMPLOYEE IN
CONNECTION WITH SEEKING LEGAL ADVICE RELATING TO THIS AGREEMENT AND HIS
EMPLOYMENT WITH THE COMPANY.
8.
SURVIVAL OF EMPLOYMENT TERMS;
RESTRICTIVE COVENANTS: THE CONTRACTUAL TERMS STATED IN EXHIBIT A THAT APPLY
POST-EMPLOYMENT, INCLUDING WITHOUT LIMITATION SUCH TERMS STATED IN SECTIONS 8
AND 9 OF EXHIBIT A (INCLUDING SUBPARTS) PERTAINING TO CONFIDENTIAL COMPANY
INFORMATION, NON-COMPETITION, NON-SOLICITATION, MEDIA STATEMENTS AND
NON-DISPARAGEMENT ("RESTRICTIVE COVENANTS"), SHALL SURVIVE THE EXECUTION OF THIS
AGREEMENT AND CONTINUE IN FULL FORCE AND EFFECT, SUBJECT TO ANY MODIFICATIONS
STATED IN THIS AGREEMENT.
9.
PAYMENT TERMINATION; LIQUIDATED
DAMAGES:
IN THE EVENT THAT EMPLOYEE COMMITS A MATERIAL BREACH OF THE
RESTRICTIVE COVENANTS, THE COMPANY MAY FOREVER TERMINATE PAYMENT OF ALL
REMAINING SEVERANCE PROCEEDS PAYMENTS, AND THE EMPLOYEE SHALL BECOME IMMEDIATELY
LIABLE TO THE COMPANY FOR LIQUIDATED DAMAGES IN THE AMOUNT OF NINETY PERCENT
(90%) OF ALL SEVERANCE PROCEEDS PAID TO EMPLOYEE BY THE COMPANY.
THE PARTIES
STIPULATE THAT SUCH LIQUIDATED DAMAGES ARE REASONABLE CONSIDERING THAT THIS
AGREEMENT HAS
4
INTRINSIC VALUE FOR THE COMPANY BECAUSE OF ITS COMPLETE CONFIDENTIALITY AND
OTHER PROTECTIONS, AND FURTHER CONSIDERING THAT IN THE EVENT OF SUCH A BREACH,
THE COMPANY'S ACTUAL DAMAGES WILL BE DIFFICULT AND IMPRACTICAL TO ASCERTAIN, SO
THAT THE STATED LIQUIDATED DAMAGES WILL BE JUST AND PROPER COMPENSATION FOR ANY
DAMAGES CAUSED BY ANY BREACH FOR WHICH THIS SECTION APPLIES; PROVIDED, HOWEVER,
THAT THE COMPANY MAY MAKE