to Employer all Employer property, including all materials
furnished to Executive during the Term of Employment (including but not limited
to keys, computers, automobiles, electronic communication devices, files,
electronic storage devices and identification cards); provided, however, that
Executive may retain copies of materials relating to his compensation or
benefits. In addition, upon termination, Executive will provide Employer with
all passwords and similar information which are reasonably necessary for
Employer to access materials on which Executive worked or to otherwise continue
in its business.
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5.6
INJUNCTIVE RELIEF.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE
PROTECTIONS OF EMPLOYER SET FORTH IN THIS SECTION 5 ARE FAIR AND REASONABLE AND
ARE NECESSARY FOR EMPLOYER TO PROTECT ITS LEGITIMATE BUSINESS INTERESTS,
INCLUDING ITS CONFIDENTIAL INFORMATION AND BUSINESS RELATIONSHIPS, AND THAT
EMPLOYER WILL HAVE NO ADEQUATE REMEDY AT LAW, AND WOULD BE IRREPARABLY HARMED,
IF EXECUTIVE BREACHES OR THREATENS TO BREACH ANY OF THE PROVISIONS OF THIS
SECTION 5.
EXECUTIVE AGREES THAT EMPLOYER SHALL BE ENTITLED TO SEEK EQUITABLE
AND/OR INJUNCTIVE RELIEF TO PREVENT ANY BREACH OF THREATENED BREACH OF THIS
SECTION 5, AND TO SPECIFIC PERFORMANCE OF EACH OF THE TERMS OF THIS SECTION 5 IN
ADDITION TO ANY OTHER LEGAL OR EQUITABLE REMEDIES THAT EMPLOYER MAY HAVE,
WITHOUT POSTING A BOND.
EXECUTIVE FURTHER AGREES THAT HE SHALL NOT, IN ANY
EQUITY PROCEEDING RELATING TO THE ENFORCEMENT OF THE TERMS OF THIS SECTION 5,
RAISE THE DEFENSE THAT EMPLOYER HAS AN ADEQUATE REMEDY AT LAW.
5.7
CLAW-BACK.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN THE EVENT
THAT EXECUTIVE BREACHES ANY OF THE PROVISIONS OF SECTIONS 5.1, 5.2, OR 5.3:
(A)
EMPLOYER SHALL BE ENTITLED TO RECOUP PAYMENTS MADE TO EXECUTIVE
PURSUANT TO SECTION 4 HEREOF, PROVIDED, HOWEVER, THAT, IN THE EVENT OF A BREACH
OF SECTION 5.1, SUCH RECOUPMENT SHALL BE LIMITED TO THE REASONABLE DAMAGES
INCURRED BY EMPLOYER AS A RESULT OF SUCH BREACH AND, IN THE EVENT OF A BREACH OF
SECTION 5.2 OR SECTION 5.3, SUCH RECOUPMENT SHALL BE EQUAL TO THE TOTAL PAYMENTS
MADE TO EXECUTIVE PURSUANT TO SECTION 4 MULTIPLIED BY A FRACTION, THE NUMERATOR
OF WHICH IS THE NUMBER OF MONTHS REMAINING FROM THE DATE OF SUCH BREACH TO THE
SECOND ANNIVERSARY OF THE TERM OF EMPLOYMENT OR EXPIRATION OF THE TERM OF
EMPLOYMENT FOR NON-RENEWAL, AS THE CASE MAY BE, AND THE DENOMINATOR OF WHICH IS
TWENTY-FOUR (24) MONTHS; AND
(B)
TO THE EXTENT THAT ANY OTHER BENEFITS ARE BEING PROVIDED TO
EXECUTIVE PURSUANT TO SECTION 4, SUCH WILL CEASE IMMEDIATELY, AND EXECUTIVE WILL
NOT BE ENTITLED TO ANY FURTHER COMPENSATION AND BENEFITS FROM EMPLOYER PURSUANT
TO SECTION 4.
5.8
SPECIAL SEVERABILITY.
THE TERMS AND PROVISIONS OF THIS SECTION 5
ARE INTENDED TO BE SEPARATE AND DIVISIBLE PROVISIONS AND IF, FOR ANY REASON, ANY
ONE OR MORE OF THEM IS HELD TO BE INVALID OR UNENFORCEABLE, NEITHER THE VALIDITY
NOR THE ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT SHALL THEREBY BE
AFFECTED.
6.
INDEMNIFICATION.
EXECUTIVE (AND HIS HEIRS, EXECUTORS AND
ADMINISTRATORS) SHALL BE INDEMNIFIED