BE AFFECTED THEREBY, AND EACH PORTION AND
PROVISION SHALL BE VALID AND ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
3
9.
ENTIRE AGREEMENT.
THIS RELEASE AGREEMENT ALONG WITH THE
RESTRICTIVE COVENANTS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN EXECUTIVE AND THE
COMPANY CONCERNING EXECUTIVE'S RELATIONSHIP WITH THE COMPANY, AND SUPERSEDES AND
REPLACES ANY AND ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES
CONCERNING THE EXECUTIVE'S RELATIONSHIP WITH THE COMPANY INCLUDING, WITHOUT
LIMITATION, THE EMPLOYMENT AGREEMENT; PROVIDED, HOWEVER, THAT SECTION 5 OF THE
EMPLOYMENT AGREEMENT "TAX GROSS UP FOR EXCISE TAXES" SHALL CONTINUE TO BE IN
FULL FORCE AND EFFECTIVE AND IS UNAFFECTED BY THIS RELEASE AGREEMENT.
10.
ENFORCEMENT.
EXECUTIVE AGREES THAT IT WOULD BE DIFFICULT TO
MEASURE ANY HARM CAUSED TO THE COMPANY THAT MIGHT RESULT FROM ANY BREACH BY
EXECUTIVE OF ANY OF THE RESTRICTIVE COVENANTS, AND THAT IN ANY EVENT MONEY
DAMAGES WOULD BE AN INADEQUATE REMEDY FOR ANY SUCH BREACH.
ACCORDINGLY,
EXECUTIVE AGREES THAT IF HE BREACHES, OR PROPOSES TO BREACH, ANY PORTION OF THE
RESTRICTIVE COVENANTS, THE COMPANY SHALL BE ENTITLED, IN ADDITION TO ALL OTHER
REMEDIES IT MAY HAVE, TO AN INJUNCTION OR OTHER APPROPRIATE EQUITABLE RELIEF TO
RESTRAIN ANY SUCH BREACH, WITHOUT SHOWING OR PROVING ANY ACTUAL DAMAGE TO THE
COMPANY AND WITHOUT THE NECESSITY OF POSTING A BOND.
11.
WAIVER.
NO WAIVER OF ANY PROVISION OF THIS RELEASE AGREEMENT
SHALL BE EFFECTIVE UNLESS MADE IN WRITING AND SIGNED BY THE WAIVING PARTY.
THE
FAILURE OF EITHER PARTY TO REQUIRE THE PERFORMANCE OF ANY TERM OR OBLIGATION OF
THIS RELEASE AGREEMENT, OR THE WAIVER BY EITHER PARTY OF ANY BREACH OF THIS
RELEASE AGREEMENT, SHALL NOT PREVENT ANY SUBSEQUENT ENFORCEMENT OF SUCH TERM OR
OBLIGATION OR BE DEEMED A WAIVER OF ANY SUBSEQUENT BREACH.
12.
GOVERNING LAW; INTERPRETATION.
THIS RELEASE AGREEMENT SHALL BE
INTERPRETED AND ENFORCED UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
IN THE EVENT OF ANY DISPUTE, THIS
RELEASE AGREEMENT IS INTENDED BY THE PARTIES TO BE CONSTRUED AS A WHOLE, TO BE
INTERPRETED IN ACCORDANCE WITH ITS FAIR MEANING, AND NOT TO BE CONSTRUED
STRICTLY FOR OR AGAINST EITHER PARTY OR THE "DRAFTER" OF ALL OR ANY PORTION OF
THIS RELEASE AGREEMENT.
13.
TAXES.
ALL FORMS OF PAYMENTS AND BENEFITS REFERRED TO IN THIS
RELEASE AGREEMENT ARE SUBJECT TO REDUCTION TO REFLECT APPLICABLE WITHHOLDING,
PAYROLL TAXES AND OTHER DEDUCTIONS REQUIRED BY LAW.
ASIDE FROM RIGHTS ARISING
UNDER SECTION 5 OF THE EMPLOYMENT AGREEMENT, THE EXECUTIVE WILL NOT MAKE ANY
CLAIM AGAINST THE COMPANY OR ITS BOARD OF DIRECTORS RELATED TO TAX LIABILITIES
ARISING FROM PAYMENTS AND BENEFITS RECEIVED PURSUANT TO THE RELEASE AGREEMENT.
14.
COUNTERPARTS.
THIS RELEASE AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE
TAKEN TO BE AN ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE
SAME DOCUMENT.
[Remainder of Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, the Parties, intending to be legally bound, have executed