OTHER SENIOR EXECUTIVE OR MANAGERIAL CAPACITY; PROVIDED,
THAT NOTHING CONTAINED IN THIS SECTION 5 SHALL BE DEEMED TO PROHIBIT YOU FROM
ACQUIRING, SOLELY AS A PASSIVE INVESTMENT, NO MORE THAN 5% OF THE TOTAL
OUTSTANDING SECURITIES OF ANY PUBLICLY HELD CORPORATION.
4
6.
ENFORCEMENT
(A)
THE PARTIES HERETO HEREBY DECLARE THAT IT IS IMPOSSIBLE TO MEASURE
IN MONEY THE DAMAGES THAT WILL ACCRUE TO THE COMPANY BY REASON OF YOUR FAILURE
TO PERFORM ANY OF YOUR OBLIGATIONS UNDER SECTIONS 3, 4 AND 5. ACCORDINGLY, IF
THE COMPANY INSTITUTES ANY ACTION OR PROCEEDING TO ENFORCE THE PROVISIONS
HEREOF, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE THE CLAIM OR
DEFENSE THAT THE COMPANY HAS AN ADEQUATE REMEDY AT LAW, AND YOU SHALL NOT URGE
IN ANY SUCH ACTION OR PROCEEDING THE DEFENSE THAT ANY SUCH REMEDY EXISTS AT LAW.
THE FOREGOING RIGHTS SHALL BE IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES
AVAILABLE TO THE COMPANY UNDER LAW OR IN EQUITY.
(B)
IF ANY OF THE COVENANTS CONTAINED IN SECTIONS 4 AND 5 OR ANY PART
THEREOF, IS CONSTRUED TO BE INVALID OR UNENFORCEABLE, THE SAME SHALL NOT AFFECT
THE REMAINDER OF THE COVENANT OR COVENANTS, WHICH SHALL BE GIVEN FULL EFFECT,
WITHOUT REGARD TO THE INVALID PORTION(S). IN ADDITION, IF ANY OF THE COVENANTS
CONTAINED IN SECTIONS 4 AND 5 HEREOF, OR ANY PART THEREOF, IS HELD BY ANY PERSON
OR ENTITY WITH JURISDICTION OVER THE MATTER TO BE INVALID OR UNENFORCEABLE
BECAUSE OF DURATION OF SUCH PROVISION OR THE GEOGRAPHICAL AREA COVERED THEREBY,
THE PARTIES AGREE THAT SUCH PERSON OR ENTITY SHALL HAVE THE POWER TO REDUCE THE
DURATION AND/OR GEOGRAPHICAL AREA OF SUCH PROVISION AND, IN ITS REDUCED FORM,
SAID PROVISIONS SHALL THEN BE ENFORCEABLE.
(C)
IT IS UNDERSTOOD AND AGREED THAT NO FAILURE OR DELAY BY THE
COMPANY IN EXERCISING ANY RIGHT, POWER OR PRIVILEGE CONTAINED IN SECTIONS 4 AND
5 SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE
THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY
RIGHT, POWER OR PRIVILEGE CONTAINED IN SECTIONS 4 AND 5.
7.
MISCELLANEOUS
(A)
ANY NOTICE OR OTHER COMMUNICATION REQUIRED OR PERMITTED UNDER THIS
AGREEMENT SHALL BE EFFECTIVE ONLY IF IT IS IN WRITING AND SHALL BE DEEMED TO BE
GIVEN WHEN DELIVERED PERSONALLY OR THREE DAYS AFTER IT IS MAILED BY REGISTERED
OR CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED OR ONE DAY AFTER IT
IS SENT BY A REPUTABLE OVERNIGHT COURIER SERVICE AND, IN EACH CASE, ADDRESSED TO
THE RELEVANT PARTY AT THE ADDRESS PROVIDED FOR SUCH PARTY ON THE FIRST PAGE
HEREOF, OR TO SUCH OTHER ADDRESS AS ANY PARTY HERETO MAY DESIGNATE BY NOTICE TO
THE OTHER IN ACCORDANCE WITH THE FOREGOING.
(B)
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AMONG YOU AND THE
COMPANY WITH RESPECT TO YOUR ENGAGEMENT HEREUNDER BY THE COMPANY, AND SUPERSEDES
AND IS IN FULL SUBSTITUTION FOR ANY AND ALL PRIOR UNDERSTANDINGS OR AGREEMENTS
WITH RESPECT TO YOUR EMPLOYMENT OR