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
12
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
AGREEMENT OR PLAN WOULD PROVIDE EXECUTIVE WITH A GREATER PAYMENT OR MORE OR
LONGER BENEFITS IN RESPECT OF ANY PARTICULAR ITEM DESCRIBED HEREUNDER (E.G.,
SEVERANCE, WELFARE BENEFITS), THEN EXECUTIVE SHALL RECEIVE SUCH