IS CONDITIONED UPON
YOUR COMPLIANCE WITH THE PROVISIONS OF THIS SECTION 9 AND SECTIONS 7 AND 8.
ACCORDINGLY, IN THE EVENT THAT YOU SHALL MATERIALLY BREACH THE PROVISIONS OF
THIS SECTION 9 AND/OR SECTIONS 7 AND/OR 8 AND NOT CURE OR CEASE (AS APPROPRIATE)
SUCH MATERIAL BREACH WITHIN TEN (10) DAYS OF RECEIPT OF NOTICE THEREOF FROM THE
COMPANY (THE "DEFAULT DATE"), THE COMPANY'S OBLIGATIONS UNDER SECTIONS 6(B),
6(C) AND 9(D) SHALL TERMINATE AND YOU SHALL PROMPTLY (WITHIN THIRTY (30) DAYS
AFTER THE DEFAULT DATE) REFUND TO THE COMPANY A PRORATA PORTION OF THE AMOUNTS
PREVIOUSLY PAID TO YOU PURSUANT TO SECTIONS 6(B), 6(C) AND 9(D) EQUAL TO A
FRACTION, THE NUMERATOR OF WHICH IS THE NUMBER OF FULL MONTHS FROM THE DEFAULT
DATE TO THE EIGHTEEN-MONTH (18-MONTH) ANNIVERSARY OF YOUR TERMINATION OF
EMPLOYMENT, AND THE DENOMINATOR OF WHICH IS EIGHTEEN (18).
TERMINATION OF THE
COMPANY'S OBLIGATIONS UNDER SECTIONS 6(B), 6(C) OR 9(D) SHALL NOT BE THE
COMPANY'S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THIS SECTION 9 AND/OR
SECTIONS 7 AND/OR 8.
IN ADDITION TO THE REMEDY PROVIDED IN THIS SECTION 9(C),
THE COMPANY SHALL BE ENTITLED TO SEEK DAMAGES AND INJUNCTIVE RELIEF TO ENFORCE
THIS SECTION 9 AND SECTIONS 7 AND 8, IN THE EVENT OF A BREACH BY YOU OF THIS
SECTION 9 AND/OR SECTIONS 7 AND/OR 8.
(D)
COMPENSATION FOR RESTRICTIVE
COVENANTS.
IN CONSIDERATION OF YOUR OBLIGATIONS UNDER THIS SECTION 9, UPON YOUR
TERMINATION OF EMPLOYMENT OTHER THAN ON ACCOUNT OF YOUR DEATH OR TOTAL
DISABILITY OR BY THE COMPANY FOR "CAUSE" OR BY YOU FOR REASONS OTHER THAN "GOOD
REASON," YOU SHALL BE PAID AN AMOUNT EQUAL TO ONE MILLION FIVE HUNDRED THOUSAND
DOLLARS ($1,500,000) (THE "NON-COMPETE PAYMENT").
SUBJECT TO SECTION 19 BELOW,
SUCH AMOUNT SHALL BE PAID IN A LUMP SUM AS SOON AS ADMINISTRATIVELY PRACTICABLE
(AND WITHIN THIRTY (30) DAYS) AFTER YOUR TERMINATION OF EMPLOYMENT.
10.
REMEDIES.
(A)
THE PARTIES HERETO AGREE
THAT THE SERVICES TO BE RENDERED BY YOU PURSUANT TO THIS AGREEMENT, AND THE
RIGHTS AND PRIVILEGES GRANTED TO THE COMPANY PURSUANT TO THIS AGREEMENT, ARE OF
A SPECIAL, UNIQUE, EXTRAORDINARY AND INTELLECTUAL CHARACTER, WHICH GIVES THEM A
PECULIAR VALUE; THE LOSS OF WHICH CANNOT BE REASONABLY
11
OR ADEQUATELY COMPENSATED IN DAMAGES IN ANY ACTION AT LAW, AND THAT A BREACH BY
YOU OF ANY OF THE TERMS OF THIS AGREEMENT WILL CAUSE THE COMPANY GREAT AND
IRREPARABLE INJURY AND DAMAGE.
YOU HEREBY AGREE THAT THE DEFINITION OF THE
BUSINESS OF THE COMPANY SET FORTH IN SECTION 1 IS CORRECT, THAT THE COMPANY AND
ITS AFFILIATES CONDUCT BUSINESS THROUGHOUT THE 50 STATES OF THE UNITED STATES OF
AMERICA AND BEYOND, AND THAT THESE RESTRICTIONS ARE REASONABLY NECESSARY TO
PROTECT THE LEGITIMATE BUSINESS INTERESTS OF THE COMPANY.
YOU HEREBY EXPRESSLY
AGREE THAT THE COMPANY SHALL BE ENTITLED TO THE REMEDIES OF INJUNCTION, SPECIFIC
PERFORMANCE AND OTHER EQUITABLE RELIEF TO PREVENT A BREACH OF THIS AGREEMENT BY
YOU.
THIS SECTION 10 SHALL NOT BE CONSTRUED AS A WAIVER OF ANY