SPIRIT OF THE PARTIES THAT THE
RESTRICTIVE COVENANTS AND AGREEMENTS
12
CONTAINED IN THIS AGREEMENT SHALL BE VALID AND ENFORCEABLE IN ALL RESPECTS, AND,
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, EXECUTIVE'S COMPLIANCE
WITH THE COVENANTS CONTAINED IN SECTION 8(A) IS MUTUALLY DEPENDENT UPON AND A
CONDITION SUBSEQUENT TO THE COMPANY'S OBLIGATION TO MAKE THE PAYMENTS DESCRIBED
IN SECTION 3 OF THIS AGREEMENT AND SUCH PAYMENTS SHALL IMMEDIATELY CEASE UPON
ANY BREACH OF SECTION 8(A).
LIKEWISE, IF EXECUTIVE COMMENCES ANY ACTION IN
COURT OR IN ARBITRATION CHALLENGING THE VALIDITY OF, SEEKING TO INVALIDATE OR
OTHERWISE SEEKING SOME SORT OF DECLARATION THAT THE COVENANTS AND AGREEMENTS IN
SECTION 8(A) ARE VOID, VOIDABLE OR INVALID, THE COMPANY'S OBLIGATIONS TO MAKE
THE PAYMENTS DESCRIBED IN SECTION 3 OF THIS AGREEMENT SHALL IMMEDIATELY CEASE AS
OF THE TIME OF THE COMMENCEMENT OF SUCH ACTION OR PROCEEDING.
IF THE COMPANY
DOES NOT DISCOVER EXECUTIVE'S BREACH OF SECTION 8(A) OR THE COMMENCEMENT OF ANY
SUCH ACTION OR ARBITRATION PROCEEDINGS UNTIL AFTER ONE OR MORE PAYMENTS UNDER
SECTION 3 HAVE BEEN MADE TO EXECUTIVE, EXECUTIVE SHALL BE OBLIGATED TO
IMMEDIATELY RETURN ALL SUCH PAYMENTS TO THE COMPANY THAT WERE PAID AND RECEIVED
AFTER THE BREACH OF SECTION 8(A).
(E)
REMEDIES UPON BREACH.
IF EXECUTIVE
BREACHES THE PROVISIONS OF SECTIONS 8 (A), (B) OR (C), THE COMPANY SHALL HAVE
THE RIGHT TO HAVE SUCH RESTRICTIVE COVENANTS SPECIFICALLY ENFORCED BY ANY COURT
OF COMPETENT JURISDICTION, IT BEING AGREED THAT ANY BREACH OF SUCH RESTRICTIVE
COVENANTS WOULD CAUSE IRREPARABLE INJURY TO THE COMPANY AND THAT MONEY DAMAGES
WOULD NOT PROVIDE AN ADEQUATE REMEDY FOR SUCH INJURY.
ACCORDINGLY, THE COMPANY
SHALL BE ENTITLED TO INJUNCTIVE RELIEF TO ENFORCE THE TERMS OF SUCH RESTRICTIVE
COVENANTS AND TO RESTRAIN EXECUTIVE FROM ANY VIOLATION THEREOF.
THE RIGHTS AND
REMEDIES SET FORTH IN THIS SECTION 8(E) SHALL BE INDEPENDENT OF ALL OTHER OTHERS
RIGHTS AND REMEDIES AVAILABLE TO THE COMPANY FOR A BREACH OF SUCH RESTRICTIVE
COVENANTS, AND SHALL BE SEVERALLY ENFORCEABLE FROM, IN ADDITION TO, AND NOT IN
LIEU OF, ANY OTHER RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY.
9.
SURVIVAL.
THE RESPECTIVE OBLIGATIONS
AND BENEFITS AFFORDED TO THE COMPANY AND EXECUTIVE AS PROVIDED IN SECTIONS 3 (TO
THE EXTENT THAT PAYMENTS OR BENEFITS ARE OWED AS A RESULT OF A TERMINATION OF
EMPLOYMENT THAT OCCURS DURING THE TERM OF THIS AGREEMENT), 4 (TO THE EXTENT THAT
PAYMENTS ARE MADE TO EXECUTIVE AS A RESULT OF A CHANGE IN CONTROL THAT OCCURS
DURING THE TERM OF THIS AGREEMENT), 5, 6, 12(C) AND 10 SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
10.
FULL SETTLEMENT; RESOLUTION OF DISPUTES.
THE COMPANY'S OBLIGATION TO MAKE ANY PAYMENTS AND PROVIDE ANY BENEFITS PURSUANT
TO THIS AGREEMENT AND OTHERWISE TO PERFORM ITS OBLIGATIONS HEREUNDER SHALL BE IN
LIEU AND IN FULL SETTLEMENT OF ALL OTHER SEVERANCE PAYMENTS TO EXECUTIVE UNDER
ANY OTHER SEVERANCE OR EMPLOYMENT AGREEMENT BETWEEN EXECUTIVE AND THE COMPANY,
AND ANY SEVERANCE PLAN OF THE COMPANY; PROVIDED, HOWEVER, THAT IF ANY SUCH OTHER