TO EACH GEOGRAPHIC AREA, TIME PERIOD, AND ACTIVITY
COVERED THEREBY, AND EACH SHALL BE ENFORCEABLE BY THE COMPANY INDEPENDENTLY.
EMPLOYEE HEREBY AGREES THAT IF, IN ANY JUDICIAL PROCEEDING, A COURT SHALL REFUSE
TO ENFORCE ANY SUCH SEPARATE RESTRICTION, THEN SUCH UNENFORCEABLE RESTRICTION
SHALL HE DEEMED ELIMINATED FROM THIS AMENDED AGREEMENT FOR THE PURPOSE OF SUCH
PROCEEDING ONLY TO THE EXTENT NECESSARY TO PERMIT THE REMAINING RESTRICTIONS
CONTAINED IN THIS SECTION TO BE ENFORCED.
(D)
THE PARTIES HEREBY DECLARE THAT IT IS IMPOSSIBLE TO MEASURE IN
MONEY THE DAMAGES THAT WILL ACCRUE TO THE COMPANY BY REASON OF A FAILURE BY
EMPLOYEE TO PERFORM ANY OF HIS OBLIGATIONS UNDER THIS SECTION OR UNDER
SECTION 12 (CONFIDENTIALITY; INTELLECTUAL PROPERTY AND OWNERSHIP OF WORK
PRODUCT). IF THE COMPANY OR ANY OF ITS AFFILIATES INSTITUTES ANY ACTION OR
PROCEEDING TO ENFORCE THE PROVISIONS HEREOF, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EMPLOYEE HEREBY WAIVES THE CLAIM OR DEFENCE THAT THE COMPANY OR
ITS AFFILIATES HAS AN ADEQUATE REMEDY AT LAW, AND EMPLOYEE SHALL NOT URGE IN ANY
SUCH ACTION OR PROCEEDING THE CLAIM OR DEFENCE THAT ANY SUCH REMEDY AT LAW
EXISTS. IN THE EVENT THIS PARAGRAPH IS NOT ENFORCED, IN WHOLE OR IN PART, THE
COMPANY RESERVES THE RIGHT TO SEEK COSTS AND DAMAGES FOR ANY BREACH OF THIS
SECTION. IN ADDITION TO WHAT IS STIPULATED IN ARTICLE 7:650, SECTION 3, DUTCH
CIVIL CODE, THE PENALTY WILL BE TO THE ADVANTAGE OF THE COMPANY.
(E)
THE RESTRICTIONS IN THIS SECTION SHALL BE IN ADDITION TO ANY
RESTRICTIONS IMPOSED ON THE EMPLOYEE BY STATUTE OR AT COMMON LAW AND SHALL
SURVIVE ANY TERMINATION OF THIS AMENDED
7
AGREEMENT.
11.
DAMAGES.
Contrary to the proviso of articles 6:170 paragraph 3 and 7:661 paragraph 1
Civil Code of The Netherlands, if an Employee is insured and is covered by such
insurance for damages caused to the Company in the performance of his duties,
the Employee will pay the Company (or a third party to whom the Company is
liable) for such damages up to the amount of the insurance coverage. This
provision shall apply even if the damages are not the result of malice
aforethought or conscious recklessness of the Employee.
12.
CONFIDENTIALITY; INTELLECTUAL PROPERTY AND OWNERSHIP OF WORK
PRODUCT,
(A)
THE EMPLOYEE SHALL NOT APPROPRIATE FOR HIS OWN USE, DISCLOSE,
DIVULGE, FURNISH, OR MAKE AVAILABLE TO ANY PERSON, UNLESS IN THE NORMAL COURSE
OR BUSINESS OR WITH THE COMPANY'S PRIOR WRITTEN CONSENT, ANY CONFIDENTIAL OR
PROPRIETARY INFORMATION CONCERNING THE COMPANY AND ITS AFFILIATES, INCLUDING
WITHOUT LIMITATION ANY CONFIDENTIAL OR PROPRIETARY INFORMATION CONCERNING THE
OPERATIONS, PLANS OR METHODS OF DOING BUSINESS OF THE COMPANY OR ITS AFFILIATES
(THE "INFORMATION"); PROVIDED THAT THE TERM "INFORMATION" SHALL NOT INCLUDE SUCH
INFORMATION WHICH IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS
A RESULT OF A DISCLOSURE BY EMPLOYEE IN VIOLATION OF THIS AMENDED AGREEMENT.
NOTWITHSTANDING THE FOREGOING, THE EMPLOYEE MAY DISCLOSE INFORMATION TO THE
EXTENT HE IS COMPELLED TO DO SO BY LAW OR