AS SO MODIFIED, TO ENFORCE THIS
AGREEMENT IN ACCORDANCE WITH ITS TERMS.
IF ANY PROVISION IN THIS SECTION 9
SHALL BE HELD TO BE EXCESSIVELY BROAD, IT SHALL BE LIMITED TO THE EXTENT
NECESSARY TO COMPLY WITH APPLICABLE LAW.
IF ANY PROVISION IN THIS SECTION 9
SHALL, NOTWITHSTANDING THE PRECEDING SENTENCE, TO HELD TO BE UNENFORCEABLE, SUCH
UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER PROVISION OF THIS AGREEMENT.
(G)
IF MR. ERVIN
BREACHES IN ANY RESPECT ANY PROVISION OF THIS SECTION 9 AND FAILS TO CURE SUCH
BREACH (IF CURABLE) WITHIN TEN (10) DAYS AFTER HIS RECEIPT OF WRITTEN NOTICE
THEREOF, THEN, IN ADDITION TO ANY OTHER RIGHT OR REMEDY AVAILABLE TO THE COMPANY
AT LAW OR EQUITY, THE COMPANY MAY BY WRITTEN NOTICE TO MR. ERVIN TERMINATE THE
CONSULTING TERM, TERMINATE ITS PAYMENTS TO MR. ERVIN UNDER SECTION 4, AND
TERMINATE THE HEALTH INSURANCE BENEFITS PROVIDED UNDER SECTION 5.
(H)
MR. ERVIN AGREES
THAT A REMEDY AT LAW WOULD BE INSUFFICIENT, BY ITSELF, TO REMEDY ANY BREACH BY
MR. ERVIN OF THE PROVISIONS OF THIS SECTION 9 AND THAT THE COMPANY WILL BE
ENTITLED TO INJUNCTIVE RELIEF TO ENFORCE THE PROVISIONS OF THIS SECTION 9.
(I)
THE RIGHTS OF THE
COMPANY AND THE OBLIGATIONS OF MR. ERVIN SET FORTH IN THIS SECTION 9 ARE IN
ADDITION TO ALL RIGHTS AND OBLIGATIONS PROVIDED BY LAW.
10.
RELEASE.
In consideration for the
Company's performance of its obligations under this Agreement, which include
payments and other valuable consideration that the Company is not otherwise
obligated to provide to Mr. Ervin, Mr. Ervin agrees to execute and deliver to
the Company the release attached hereto as Exhibit A (the "Release") on the
Separation Date.
The Company's obligations under this Agreement will terminate
in all respects if Mr. Ervin fails to deliver the Release on the Separation Date
or revokes the Release in accordance with the terms thereof.
8
11.
NON-DISPARAGMENT.
THE COMPANY AND
MR. ERVIN AGREE NOT TO PUBLISH (IN WRITING OR ORALLY) ANY DISPARAGING STATEMENT
ABOUT THE OTHER PARTY.
FOR ALL PURPOSES, THE COMPANY AND MR. ERVIN WILL
CHARACTERIZE THE TERMINATION OF MR. ERVIN'S EMPLOYMENT WITH THE COMPANY AS "A
MUTUALLY AGREED UPON SEPARATION".
12.
MISCELLANEOUS.
(A)
THIS AGREEMENT IS
THE SOLE AND ENTIRE AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR NEGOTIATIONS AND WRITTEN, ORAL OR
IMPLIED REPRESENTATIONS, WARRANTIES, COMMITMENTS, OFFERS, CONTRACTS, AGREEMENTS,
AWARDS, AND UNDERSTANDINGS BETWEEN THE PARTIES REGARDING MR. ERVIN'S EMPLOYMENT
WITH THE COMPANY, THE TERMINATION THEREOF, AND THE MATTERS ADDRESSED IN THIS
AGREEMENT.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THIS AGREEMENT
TERMINATES AND SUPERSEDES IN ALL RESPECTS THE EMPLOYMENT AGREEMENT DATED
MARCH 11, 1997 BETWEEN MR. ERVIN AND THE COMPANY AND NEITHER PARTY WILL HAVE ANY
FURTHER RIGHT OR OBLIGATION UNDER SUCH EMPLOYMENT AGREEMENT, PROVIDED, HOWEVER,
THAT MR. ERVIN SHALL REMAIN LIABLE FOR ANY BREACH BY HIM OF THE COVENANTS UNDER
SECTION 8 OF SUCH EMPLOYMENT AGREEMENT ON OR BEFORE THE SEPARATION DATE.
ANY
ADDITION, CHANGE OR MODIFICATION OF