PROVISION OF TESTIMONY OR ASSISTANCE.
(E)
THE EXECUTIVE AGREES THAT ANY BREACH OF THE TERMS OF THIS SECTION
10 WOULD RESULT IN IRREPARABLE INJURY AND DAMAGE TO THE COMPANY FOR WHICH THE
COMPANY WOULD HAVE NO ADEQUATE REMEDY AT LAW; THE EXECUTIVE THEREFORE ALSO
AGREES THAT IN THE EVENT OF SAID BREACH OR ANY REASONABLE THREAT OF BREACH, THE
COMPANY SHALL BE ENTITLED TO AN IMMEDIATE INJUNCTION AND RESTRAINING ORDER FROM
ANY COURT OF COMPETENT JURISDICTION TO PREVENT SUCH BREACH AND/OR THREATENED
BREACH AND/OR CONTINUED BREACH BY THE EXECUTIVE AND/OR ANY AND ALL PERSONS
AND/OR ENTITIES ACTING FOR AND/OR WITH THE EXECUTIVE.
THE TERMS OF THIS
PARAGRAPH SHALL NOT PREVENT THE COMPANY FROM PURSUING ANY OTHER AVAILABLE
REMEDIES FOR ANY BREACH OR THREATENED BREACH HEREOF, INCLUDING, BUT NOT LIMITED
TO, REMEDIES AVAILABLE UNDER THIS AGREEMENT AND THE RECOVERY OF DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE COMPANY'S
OBLIGATION TO MAKE ANY PAYMENTS UNDER THIS AGREEMENT SHALL CEASE AND THE
EXECUTIVE AGREES TO PAY TO THE COMPANY, UPON WRITTEN DEMAND OF THE COMPANY, IN A
SINGLE CASH, LUMP SUM, THE NET AFTER-TAX AMOUNTS RECEIVED AS SEVERANCE BENEFITS
UNDER THIS AGREEMENT, IF EITHER OF THE FOLLOWING OCCUR: (I) THE EXECUTIVE
BREACHES ANY RESTRICTIVE COVENANT THAT HE/SHE IS BOUND TO PURSUANT TO ANY
AGREEMENT WITH THE COMPANY OR AN AFFILIATE, OR AN EMPLOYEE BENEFIT PLAN OF THE
COMPANY OR AN AFFILIATE, INCLUDING, WITHOUT LIMITATION,
7
THIS SECTION 10, OR (II) THE EXECUTIVE DISCLOSES THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND/OR HIS/HER RIGHT TO RECEIVE ANY BENEFITS UNDER THIS
AGREEMENT, UNLESS LEGALLY REQUIRED TO DISCLOSE SUCH INFORMATION, TO ANY PERSON
OTHER THAN HIS/HER SPOUSE AND/OR ATTORNEY, PROVIDED SUCH SPOUSE AND ATTORNEY
SHALL ALSO BE BOUND BY THIS CONFIDENTIALITY REQUIREMENT.
(F)
THE PROVISIONS OF THIS SECTION 10 SHALL SURVIVE ANY TERMINATION
OF THIS AGREEMENT AND THE TERM, AND THE EXISTENCE OF ANY CLAIM OR CAUSE OF
ACTION BY THE EXECUTIVE AGAINST THE COMPANY, WHETHER PREDICATED ON THIS
AGREEMENT OR OTHERWISE, SHALL NOT CONSTITUTE A DEFENSE TO THE ENFORCEMENT BY THE
COMPANY OF THE COVENANTS AND AGREEMENTS OF THIS SECTION.
11.
ASSIGNABILITY; BINDING NATURE.
THIS AGREEMENT SHALL BE BINDING
UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS,
HEIRS (IN THE CASE OF THE EXECUTIVE) AND ASSIGNS. NO RIGHTS OR OBLIGATIONS OF
THE COMPANY UNDER THIS AGREEMENT MAY BE ASSIGNED OR TRANSFERRED BY THE COMPANY
EXCEPT THAT SUCH RIGHTS OR OBLIGATIONS MAY BE ASSIGNED OR TRANSFERRED PURSUANT
TO A MERGER OR CONSOLIDATION IN WHICH THE COMPANY IS NOT THE CONTINUING ENTITY,
OR THE SALE OR LIQUIDATION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OF THE
COMPANY, PROVIDED THAT THE ASSIGNEE OR TRANSFEREE IS THE SUCCESSOR TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS AND ASSETS OF THE COMPANY AND SUCH ASSIGNEE OR
TRANSFEREE ASSUMES THE LIABILITIES, OBLIGATIONS AND DUTIES OF THE COMPANY, AS
CONTAINED IN THIS AGREEMENT, EITHER CONTRACTUALLY OR AS A MATTER OF LAW.
THE
COMPANY FURTHER AGREES THAT, IN THE EVENT OF A SALE OR