TIME DURING THE TWENTY-FOUR (24) MONTHS PRECEDING THE DATE OF TERMINATION OF THE
EXECUTIVE, OR (III) INDUCE OR ATTEMPT TO INDUCE ANY CUSTOMER, DEVELOPER, CLIENT,
MEMBER, SUPPLIER, LICENSEE, LICENSOR, FRANCHISEE OR OTHER BUSINESS RELATION OF
THE COMPANY OR ANY SUBSIDIARY TO CEASE DOING BUSINESS WITH THE COMPANY OR SUCH
SUBSIDIARY, OR IN ANY WAY INTERFERE WITH THE RELATIONSHIP BETWEEN ANY SUCH
CUSTOMER, DEVELOPER, CLIENT, MEMBER, SUPPLIER, LICENSEE OR BUSINESS RELATION AND
THE COMPANY OR ANY SUBSIDIARY (INCLUDING, WITHOUT LIMITATION, MAKING ANY
NEGATIVE STATEMENTS OR COMMUNICATIONS ABOUT THE COMPANY OR ANY SUBSIDIARY).
15.
ENFORCEMENT.
IF, AT THE TIME OF ENFORCEMENT OF ANY OF SECTIONS 11
THROUGH 14 A COURT SHALL HOLD THAT THE DURATION, SCOPE OR AREA RESTRICTIONS
STATED HEREIN ARE UNREASONABLE UNDER CIRCUMSTANCES THEN EXISTING, THE PARTIES
AGREE THAT THE MAXIMUM DURATION, SCOPE OR AREA REASONABLE UNDER SUCH
CIRCUMSTANCES SHALL BE SUBSTITUTED FOR THE STATED DURATION, SCOPE OR AREA AND
THAT THE COURT SHALL BE ALLOWED TO REVISE THE RESTRICTIONS CONTAINED HEREIN TO
COVER THE MAXIMUM PERIOD, SCOPE AND AREA PERMITTED BY LAW.
BECAUSE THE
EXECUTIVE'S SERVICES ARE UNIQUE AND BECAUSE HE HAS ACCESS TO CONFIDENTIAL
INFORMATION AND WORK PRODUCT, THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT
MONEY DAMAGES WOULD NOT BE AN ADEQUATE REMEDY FOR ANY BREACH OF THIS AGREEMENT.
THEREFORE, IN THE EVENT OF A BREACH OR THREATENED BREACH OF THIS AGREEMENT, THE
COMPANY OR ITS SUCCESSORS OR ASSIGNS MAY, IN ADDITION TO OTHER RIGHTS AND
REMEDIES EXISTING IN THEIR FAVOR, APPLY TO ANY COURT OF COMPETENT JURISDICTION
FOR SPECIFIC PERFORMANCE AND/OR INJUNCTIVE OR OTHER RELIEF IN ORDER TO ENFORCE
OR PREVENT ANY VIOLATIONS OF THE PROVISIONS HEREOF (WITHOUT POSTING A BOND OR
OTHER SECURITY).
IN ADDITION, IN THE EVENT OF AN ALLEGED BREACH OR VIOLATION BY
THE EXECUTIVE OF ANY OF SECTIONS 11 THROUGH 14, THE NONCOMPETE PERIOD AND THE
8
NONSOLICIT PERIOD SHALL BE TOLLED UNTIL SUCH BREACH OR VIOLATION HAS BEEN DULY
CURED.
THE EXECUTIVE AGREES THAT THE RESTRICTIONS CONTAINED IN SECTIONS 11
THROUGH 14 ARE REASONABLE.
16.
LIMITATION ON ACCELERATION OF BENEFITS.
(A)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE
EVENT IT SHALL BE DETERMINED THAT ANY PAYMENT OR DISTRIBUTION BY THE COMPANY TO
OR FOR THE EXECUTIVE'S BENEFIT (WHETHER PURSUANT TO THIS AGREEMENT OR OTHERWISE,
AND INCLUDING INSURANCE BENEFITS, ACCELERATED VESTING, PRO-RATED BONUS OR OTHER
BENEFITS PAYABLE TO THE EXECUTIVE HEREUNDER) (A "PAYMENT") WOULD BE, BUT FOR
THIS SECTION 16, SUBJECT TO THE EXCISE TAX (THE "EXCISE TAX") IMPOSED BY SECTION
4999 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") AS AN "EXCESS
PARACHUTE PAYMENT" WITHIN THE MEANING OF SECTION 280G OF THE CODE, OR THE
REGULATIONS THEREUNDER, THEN THE AGGREGATE PRESENT VALUE OF AMOUNTS PAYABLE OR
DISTRIBUTABLE TO OR FOR THE EXECUTIVE'S BENEFIT PURSUANT TO THIS AGREEMENT (SUCH
PAYMENTS OR DISTRIBUTIONS THE "AGREEMENT PAYMENTS") SHALL BE REDUCED TO AN
AMOUNT WHICH MAXIMIZES THE AGGREGATE AGREEMENT PAYMENTS WITHOUT CAUSING ANY
PAYMENT TO BE NONDEDUCTIBLE BY THE COMPANY BECAUSE OF SECTION 280G OF THE CODE.
(B)
ALL