of a qualified
physician selected by mutual agreement of Executive and the Company, Executive
is determined to be unable to perform any of the essential functions of his
regular employment by the Company by reason of any physical or mental sickness,
injury, or incapacity.
In the event Executive and the Company cannot agree upon
the selection of a qualified physician, each party shall appoint a qualified
physician of his or its choice and the two physicians so appointed shall
mutually select a qualified physician to render the subject opinion as to
whether or not Executive is suffering from a disability as defined above.
A
"qualified physician" shall mean a person who is licensed to practice medicine
and prescribe and administer prescription drugs and/or to perform surgery in the
state of Executive's residence at the time of the commencement of the believed
disability (or is so licensed in such other state as the parties shall
reasonably agree is a convenient place in which to examine Executive and/or
review his medical records) and who is acting within the scope of his/her
medical license and qualified by his/her licensure, certification, training or
experience to render the subject opinion.
(F)
IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT IN CONNECTION
WITH WHICH EXECUTIVE IS ENTITLED BY LAW OR IS ALLOWED BY THE COMPANY TO CONTINUE
HIS COVERAGE UNDER THE COMPANY'S HEALTH, DENTAL, EYE AND OTHER MEDICAL INSURANCE
POLICIES, EXECUTIVE SHALL BE RESPONSIBLE FOR PAYING THE COST OF ALL INSURANCE
PREMIUMS AND CHARGES NECESSARY TO KEEP SUCH COVERAGE IN FORCE DURING ANY PERIOD
OF TIME THAT SUCH COVERAGE IS SO CONTINUED FOLLOWING TERMINATION.
6.
PROPRIETARY INFORMATION AND NON-COMPETITION AGREEMENTS.
EXECUTIVE SHALL BE BOUND BY THE TERMS OF THE COMPANY'S STANDARD FORM OF THE KEY
EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT, ATTACHED HERETO AS
EXHIBIT A, AND THE NON-COMPETITION AND NON-SOLICITATION AGREEMENT, ATTACHED
HERETO AS EXHIBIT B, FROM AND AFTER THE DATE HEREOF.
7.
MISCELLANEOUS.
(A)
JUDICIAL LIMITATION.
IN THE EVENT THAT ANY PROVISION OF THIS
AGREEMENT IS MORE RESTRICTIVE THAN PERMITTED BY THE LAW OF THE JURISDICTION IN
WHICH THE COMPANY SEEKS ENFORCEMENT THEREOF, THE PROVISIONS OF THIS AGREEMENT
SHALL BE LIMITED ONLY TO THAT EXTENT THAT A JUDICIAL DETERMINATION FINDS THE
SAME TO BE UNREASONABLE OR OTHERWISE ENFORCEABLE. SUCH INVALIDITY OR
UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER TERMS HEREIN, BUT SUCH TERM SHALL BE
DEEMED DELETED, AND SUCH DELETION SHALL NOT AFFECT THE VALIDITY OF THE OTHER
TERMS THEREOF. IN ADDITION, IF ANY ONE OR MORE OF THE TERMS CONTAINED IN THIS
AGREEMENT SHALL FOR ANY REASON BE HELD TO BE EXCESSIVELY BROAD OR OF AN OVERLY
LONG DURATION, THAT TERM SHALL BE CONSTRUED IN A MANNER TO ENABLE IT TO BE
ENFORCED TO THE EXTENT COMPATIBLE WITH APPLICABLE LAW. MOREOVER, NOTWITHSTANDING
ANY JUDICIAL DETERMINATION THAT ANY PROVISION OF THIS AGREEMENT IS NOT
SPECIFICALLY ENFORCEABLE THE PARTIES INTEND THAT THE COMPANY SHALL NONETHELESS
BE ENTITLED TO RECOVER MONETARY DAMAGES AS A RESULT OF ANY BREACH HEREOF.
5
(B)
INJUNCTIVE RELIEF.
IN VIEW