covenants and agrees to cooperate with the Company
and its affiliates to deliver the minimum amount of information necessary to
comply with such order.
This Section 6 shall survive any termination of this Agreement.
SECTION 7.
COVENANT NOT TO COMPETE.
(A)
SCOPE.
IN ORDER TO FULLY PROTECT THE
COMPANY'S CONFIDENTIAL INFORMATION, DURING THE EMPLOYMENT TERM AND FOR A PERIOD
OF ONE YEAR THEREAFTER (THE "NON-COMPETITION PERIOD"), THE EXECUTIVE SHALL NOT,
EXCEPT AS AUTHORIZED IN WRITING BY THE BOARD, DIRECTLY OR INDIRECTLY, RENDER
SERVICES TO, ASSIST, PARTICIPATE IN THE AFFAIRS OF, OR OTHERWISE PROVIDE
ASSISTANCE TO ANY PERSON OR ENTERPRISE (OTHER THAN THE COMPANY AND ITS
SUBSIDIARIES, IF ANY), WHICH PERSON OR ENTERPRISE IS ENGAGED IN, OR IS PLANNING
TO ENGAGE IN, AND SHALL NOT PERSONALLY ENGAGE IN ANY BUSINESS IN ANY
JURISDICTION WHERE THE COMPANY HAS TRANSACTED BUSINESS AT ANY TIME PRIOR TO THE
TERMINATION DATE THAT IS COMPETITIVE WITH THE BUSINESS OF THE COMPANY OR ANY OF
ITS SUBSIDIARIES, IF ANY, WITH RESPECT TO ANY PRODUCTS OR
4
services of the Company or any of its subsidiaries, if any, in any capacity
which would utilize the Executive's services with respect to any products or
services of the Company or any of its subsidiaries, if any, that were within the
Executive's management responsibility at any time within the twelve (12) month
period immediately prior to the Termination Date.
(B)
REMEDIES.
THE PARTIES RECOGNIZE,
ACKNOWLEDGE AND AGREE THAT (I) ANY BREACH OR THREATENED BREACH OF THE PROVISIONS
OF THIS SECTION 7 SHALL CAUSE IRREPARABLE HARM AND INJURY TO THE COMPANY AND
THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY FOR SUCH BREACH OR
THREATENED BREACH AND (II) THE DURATION, SCOPE AND GEOGRAPHICAL APPLICATION OF
THIS AGREEMENT ARE FAIR AND REASONABLE UNDER THE CIRCUMSTANCES, AND ARE
REASONABLY REQUIRED TO PROTECT THE LEGITIMATE BUSINESS INTERESTS OF THE COMPANY.
ACCORDINGLY, EXECUTIVE AGREES THAT THE COMPANY SHALL BE ENTITLED TO HAVE THE
PROVISIONS OF THIS AGREEMENT SPECIFICALLY ENFORCED BY ANY COURT HAVING
JURISDICTION, AND THAT SUCH A COURT MAY ISSUE A TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION OR OTHER APPROPRIATE EQUITABLE RELIEF, WITHOUT HAVING TO
PROVE THE INADEQUACY OF AVAILABLE REMEDIES AT LAW. IN ADDITION, THE COMPANY
SHALL BE ENTITLED TO AVAIL ITSELF OF ALL SUCH OTHER ACTIONS AND REMEDIES
AVAILABLE TO IT OR ANY OF ITS AFFILIATES UNDER LAW OR IN EQUITY AND SHALL BE
ENTITLED TO SUCH DAMAGES AS IT SUSTAINS BY REASON OF SUCH BREACH OR THREATENED
BREACH. IT IS THE EXPRESS DESIRE AND INTENT OF THE PARTIES THAT THE PROVISIONS
OF THIS AGREEMENT BE ENFORCED TO THE FULL EXTENT POSSIBLE.
(C)
SEVERABILITY.
IF ANY PROVISION OF
SECTION 7(A) IS HELD TO BE UNENFORCEABLE BECAUSE OF THE DURATION OF SUCH
PROVISION, THE AREA COVERED THEREBY OR THE SCOPE OF THE ACTIVITY RESTRAINED, THE
PARTIES HEREBY EXPRESSLY AGREE THAT THE COURT MAKING SUCH DETERMINATION SHALL
HAVE THE POWER TO REDUCE THE DURATION AND/OR AREAS OF SUCH PROVISION AND/OR THE
SCOPE OF THE ACTIVITY TO BE RESTRAINED CONTAINED IN SUCH PROVISION AND, IN