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.
19
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 AND HELD HARMLESS BY
EMPLOYER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REGULATION,
REGULATORY POLICY OR OTHER REGULATORY REQUIREMENT, AGAINST ALL EXPENSES,