party.
6.
NON-DISPARAGEMENT.
CONSULTANT EXPRESSLY
ACKNOWLEDGES, AGREES, AND COVENANTS THAT SHE WILL NOT MAKE ANY PUBLIC OR PRIVATE
STATEMENTS, COMMENTS, OR COMMUNICATIONS IN ANY FORM, ORAL, WRITTEN, OR
ELECTRONIC (ALL OF THE FOREGOING, FOR PURPOSES OF THIS PARAGRAPH,
"COMMUNICATIONS"), WHICH IN ANY WAY COULD CONSTITUTE LIBEL, SLANDER, OR
DISPARAGEMENT OF THE COMPANY, ITS SUBSIDIARIES, AFFILIATES OR PARENT, ITS AND/OR
THEIR CURRENT OR FORMER EMPLOYEES, OFFICERS, AND/OR DIRECTORS, OR WHICH MAY BE
CONSIDERED TO BE DEROGATORY OR DETRIMENTAL TO ITS OR THEIR GOOD NAME OR
BUSINESS; PROVIDED, HOWEVER, THAT THE TERMS OF THIS PARAGRAPH SHALL NOT
(A) APPLY TO COMMUNICATIONS BETWEEN CONSULTANT AND HER SPOUSE, CLERGY, OR
ATTORNEYS, WHICH ARE SUBJECT TO A CLAIM OF PRIVILEGE EXISTING UNDER COMMON LAW,
STATUTE, OR RULE OF PROCEDURE; (B) APPLY TO COMMUNICATIONS REQUIRED BY LAW OR
MADE IN RESPONSE TO A VALID SUBPOENA OR OTHER LAWFUL ORDER COMPELLING CONSULTANT
TO PROVIDE TESTIMONY OR INFORMATION; (C) BE CONSTRUED TO INHIBIT OR LIMIT
CONSULTANT'S ABILITY TO INITIATE OR COOPERATE WITH ANY INVESTIGATION BY A
GOVERNMENTAL OR REGULATORY AGENCY OR OFFICIAL; PROVIDED, FURTHER, THAT WITH
RESPECT TO SECTIONS 6 (B) AND (C), CONSULTANT AGREES TO PROVIDE THE COMPANY WITH
ADVANCE NOTICE AND AN OPPORTUNITY TO SEEK A PROTECTIVE ORDER OR OTHER SAFEGUARD
FOR ITS CONFIDENTIAL INFORMATION.
CONSULTANT SPECIFICALLY AGREES NOT TO ISSUE
ANY PUBLIC STATEMENT CONCERNING HER ENGAGEMENT WITH THE COMPANY AND/OR THE
TERMINATION OF SUCH ENGAGEMENT.
7.
NON-COMPETITION.
IN ACKNOWLEDGMENT OF
HER CONTINUING OBLIGATIONS UNDER THAT CERTAIN EMPLOYMENT AGREEMENT DATED
OCTOBER 12, 2006, BY AND BETWEEN THE COMPANY AND CONSULTANT AND AS A MATERIAL
INDUCEMENT FOR THE COMPANY'S PROMISE TO PROVIDE THE TRADE SECRETS AND
CONFIDENTIAL AND PROPRIETARY INFORMATION DESCRIBED IN SECTION 9 BELOW,
CONSULTANT AGREES THAT DURING THE TERM AND FOR A PERIOD OF EIGHTEEN (18) MONTHS
FROM THE DATE OF EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON
WHATSOEVER, SHE WILL NOT, DIRECTLY OR INDIRECTLY, COMPETE WITH THE COMPANY BY
PROVIDING SERVICES RELATING TO RETAIL SALES OF JEWELRY TO ANY OTHER PERSON,
PARTNERSHIP, ASSOCIATION, CORPORATION, OR OTHER ENTITY THAT IS IN A "COMPETING
BUSINESS." AS USED HEREIN, A "COMPETING BUSINESS" IS ANY BUSINESS THAT ENGAGES
IN WHOLE OR IN MATERIAL PART IN THE RETAIL SALE OF JEWELRY IN THE UNITED STATES,
CANADA AND/OR PUERTO RICO, INCLUDING, BUT NOT LIMITED TO, SPECIALTY JEWELRY
RETAILERS AND OTHER RETAILERS HAVING JEWELRY DIVISIONS OR DEPARTMENTS.
THE
RESTRICTIONS CONTAINED IN THIS SECTION 7 SHALL BE TOLLED ON A DAY-FOR-DAY BASIS
FOR EACH DAY DURING WHICH CONSULTANT PARTICIPATES IN ANY ACTIVITY IN VIOLATION
OF SUCH RESTRICTIONS.
THE PARTIES AGREE THAT THE ABOVE RESTRICTIONS ON
COMPETITION ARE COMPLETELY SEVERABLE AND INDEPENDENT AGREEMENTS SUPPORTED BY
GOOD AND VALUABLE CONSIDERATION AND, AS SUCH, SHALL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT FOR WHATEVER REASON.
THE PARTIES FURTHER AGREE
THAT ANY INVALIDITY OR UNENFORCEABILITY OF ANY ONE OR MORE OF SUCH RESTRICTIONS
ON COMPETITION SHALL
2
NOT RENDER INVALID OR UNENFORCEABLE ANY REMAINING RESTRICTIONS ON COMPETITION.
ADDITIONALLY, SHOULD A COURT OF COMPETENT JURISDICTION DETERMINE THAT THE SCOPE
OF ANY PROVISION OF