9. Covenants. Before and after the Retirement Date, you will remain subject to and continue to comply with all the restrictive and other covenants contained in your Employment Agreement including in respect of confidentiality, noncompetition and nonsolicitation.
10. Confidentiality. You acknowledge that the Companys Confidential Information (as defined in your Employment Agreement) is proprietary and that you may never disclose any such information to any person or entity at any time, including after the Retirement Date. You agree this paragraph is a material provision of this Agreement and that in the event of breach, you will be liable for the return of the value of all consideration received as well as any other damages sustained by the Company.
11. Forfeiture. In the event that you breach any of your obligations to the Company under this Agreement, your Employment Agreement or as otherwise imposed by law, the Company shall be entitled to stop payment of any benefit due under this Agreement and shall be entitled to recover any benefit paid after the Retirement Date under this Agreement and to obtain all other relief provided by law or equity, including, but not limited to, injunctive relief.
12. Governing Law and Venue. To the extent not preempted by federal law, the provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this provision to the substantive law of another jurisdiction. Each party hereby agrees that the State of Delaware is the proper venue for any litigation seeking to enforce any provision of this Agreement, and each party hereby waives any right it otherwise might have to defend, oppose, or object to, on the basis of jurisdiction, venue, or forum nonconveniens, a suit filed by the other party in any federal or state court in Delaware, to enforce any provision of this Agreement.
13. Severability. If any portion, provision or part of this Agreement is held, determined or adjudicated to be invalid, unenforceable or void for any reason whatsoever, each such portion, provision or part shall be severed from the remaining portions, provisions or parts of this Agreement and shall not affect the validity or enforceability of such remaining portions, provisions or parts.
14. Entire Agreement. This Agreement between you and the Company is in consideration of the mutual promises described above. This Agreement constitutes the entire agreement between you and the Company with respect to your retirement and related separation from employment. There are no other agreements, written or oral, expressed or implied, between the parties hereto, concerning the subject matter hereof, except the agreements set forth in this Agreement.
15. Section 409A Compliance. To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Internal Revenue Code, and this Agreement shall be construed and applied in a manner consistent with this intent. Notwithstanding any other provision herein to the contrary, to the extent that the reimbursement of any expenses or the provision of any in-kind benefits under this Agreement is subject to Code Section 409A, (i) the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, during any one calendar year shall not affect the amount of such expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year, (ii) reimbursement of any such expense shall be made by no later than December 31 of the year following the calendar year in which such expense is incurred, and (iii) your right to receive such reimbursements or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
- 4 -