APPOINTMENT, THE ARBITRATOR SHALL THEN PROCEED TO DECIDE
THE ARBITRATION SUBJECTS IN ACCORDANCE WITH THE RULES.
ANY ARBITRATION HELD IN
ACCORDANCE WITH THIS PARAGRAPH SHALL BE PRIVATE AND CONFIDENTIAL AND NO PERSON
SHALL BE ENTITLED TO ATTEND THE HEARINGS EXCEPT THE ARBITRATOR, EXECUTIVE,
EXECUTIVE'S ATTORNEYS, AND AN DESIGNATED REPRESENTATIVES OF THE COMPANY AND
THEIR RESPECTIVE ATTORNEYS.
THE MATTERS SUBMITTED FOR ARBITRATION, THE HEARINGS
AND PROCEEDINGS AND THE ARBITRATION AWARD SHALL BE KEPT AND MAINTAINED IN
STRICTEST CONFIDENCE BY EXECUTIVE AND THE COMPANY AND SHALL NOT BE DISCUSSED,
DISCLOSED OR COMMUNICATED TO ANY PERSONS.
ON REQUEST OF ANY PARTY, THE RECORD
OF THE PROCEEDING SHALL BE SEALED AND MAY NOT BE DISCLOSED EXCEPT INSOFAR, AND
ONLY INSOFAR, AS MAY BE NECESSARY TO ENFORCE THE AWARD OF THE ARBITRATOR AND ANY
JUDGEMENT ENFORCING AN AWARD.
THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER
REASONABLE AND NECESSARY ATTORNEYS' FEES AND COSTS FROM THE NON-PREVAILING
PARTY.
8.
COVENANTS NOT TO COMPETE.
(A)
EXECUTIVE'S ACKNOWLEDGEMENT.
EXECUTIVE
AGREES AND ACKNOWLEDGES THAT IN ORDER TO ASSURE THE COMPANY THAT IT WILL RETAIN
ITS VALUE AS A GOING CONCERN, IT IS NECESSARY THAT EXECUTIVE UNDERTAKE NOT TO
UTILIZE HIS SPECIAL KNOWLEDGE OF THE BUSINESS AND HIS RELATIONSHIPS WITH
CUSTOMERS AND SUPPLIERS TO COMPETE WITH THE COMPANY.
EXECUTIVE FURTHER
ACKNOWLEDGES THAT:
(I)
THE COMPANY IS AND WILL BE ENGAGED IN
THE BUSINESS;
(II)
EXECUTIVE WILL OCCUPY A POSITION OF TRUST
AND CONFIDENCE WITH THE COMPANY PRIOR TO THE DATE OF THIS AGREEMENT AND, DURING
SUCH PERIOD AND EXECUTIVE'S EMPLOYMENT UNDER THIS AGREEMENT, EXECUTIVE HAS, AND
WILL BECOME FAMILIAR WITH THE COMPANY'S TRADE SECRETS AND WITH OTHER PROPRIETARY
AND CONFIDENTIAL INFORMATION CONCERNING THE COMPANY;
(III)
THE AGREEMENTS AND COVENANTS CONTAINED IN
THIS SECTION 8 ARE ESSENTIAL TO PROTECT THE COMPANY AND THE GOODWILL OF THE
BUSINESS; AND
(IV)
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY HAS
SPECIAL, UNIQUE AND EXTRAORDINARY VALUE TO THE COMPANY AND THE COMPANY WOULD BE
IRREPARABLY DAMAGED IF EXECUTIVE WERE TO PROVIDE SERVICES TO ANY PERSON OR
ENTITY IN VIOLATION OF THE PROVISIONS OF THIS AGREEMENT.
(B)
COMPETITIVE ACTIVITIES.
EXECUTIVE HEREBY
AGREES THAT FOR A PERIOD COMMENCING ON THE DATE HEREOF AND ENDING ONE YEAR
FOLLOWING THE LATER OF (I) TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY FOR WHATEVER REASON, AND (II) THE CONCLUSION OF THE PERIOD,
4
IF ANY, DURING WHICH THE COMPANY IS MAKING PAYMENTS TO EXECUTIVE, HE WILL NOT,
DIRECTLY OR INDIRECTLY, AS EMPLOYEE, AGENT, CONSULTANT, STOCKHOLDER, DIRECTOR,
CO-PARTNER OR IN ANY OTHER INDIVIDUAL OR REPRESENTATIVE CAPACITY, OWN, OPERATE,
MANAGE, CONTROL, ENGAGE IN, INVEST IN OR PARTICIPATE IN ANY MANNER IN, ACT AS A
CONSULTANT OR ADVISOR TO, RENDER SERVICES FOR (ALONE OR IN ASSOCIATION WITH ANY
PERSON, FIRM, CORPORATION OR ENTITY), OR OTHERWISE ASSIST ANY PERSON OR ENTITY
(OTHER THAN THE COMPANY) THAT ENGAGES IN OR OWNS, INVESTS IN, OPERATES, MANAGES
OR CONTROLS ANY VENTURE OR ENTERPRISE THAT DIRECTLY OR INDIRECTLY ENGAGES OR
PROPOSES IN ENGAGE IN THE BUSINESS OF THE DISTRIBUTION OR SALE OF (I) PRODUCTS
DISTRIBUTED, SOLD OR LICENSED BY THE