ILLEGAL OR
UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN THE REMAINDER OTHER
THAN THOSE AS TO WHICH IT IS SO DECLARED ILLEGAL OR UNENFORCEABLE, SHALL NOT 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