FURTHER
EXPRESSLY AGREED THAT THE COMPANY WILL OR WOULD SUFFER IRREPARABLE INJURY IF THE
EXECUTIVE WERE TO COMPETE WITH THE COMPANY, FTDI OR ANY OF ITS OR THEIR
SUBSIDIARIES OR AFFILIATED COMPANIES IN VIOLATION OF THIS AGREEMENT AND THAT THE
COMPANY WOULD BY REASON OF SUCH COMPETITION BE ENTITLED TO INJUNCTIVE RELIEF IN
A COURT OF APPROPRIATE JURISDICTION, AND THE EXECUTIVE FURTHER CONSENTS AND
STIPULATES TO THE ENTRY OF SUCH INJUNCTIVE RELIEF IN SUCH A COURT PROHIBITING
THE EXECUTIVE FROM COMPETING WITH THE COMPANY OR
FTDI ITS SUCCESSORS OR ANY OF
ITS OR THEIR SUBSIDIARIES OR AFFILIATED COMPANIES IN VIOLATION OF THIS
AGREEMENT.
EXECUTIVE FURTHER AGREES TO PAY FTDI'S ATTORNEYS' FEES FOR OBTAINING
ANY AND ALL RELIEF INCLUDING AN INJUNCTION IF HE IS FOUND BY THE COURT TO BE IN
VIOLATION OF THIS AGREEMENT.
SECTION 4.
REPRESENTATION AND WARRANTIES OF THE
EXECUTIVE.
THE EXECUTIVE REPRESENTS AND WARRANTS THAT THE EXECUTION OF THIS
AGREEMENT AND SUBSEQUENT EMPLOYMENT WITH THE COMPANY DOES NOT AND WILL NOT
CONFLICT WITH ANY OBLIGATIONS THAT THE EXECUTIVE HAS TO ANY FORMER EMPLOYERS OR
ANY OTHER ENTITY.
THE EXECUTIVE FURTHER REPRESENTS AND WARRANTS THAT HE HAS NOT
BROUGHT TO THE COMPANY, AND WILL NOT AT ANY TIME BRING TO THE COMPANY, ANY
MATERIALS, DOCUMENTS OR OTHER PROPERTY OF ANY NATURE OF A FORMER EMPLOYER.
SECTION 5.
MISCELLANEOUS.
(A)
JURISDICTION, CHOICE OF LAW AND
VENUE.
THE VALIDITY AND CONSTRUCTION OF THIS AGREEMENT SHALL BE GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS, EXCLUDING THE CONFLICTS-OF-LAWS
PRINCIPLES THEREOF.
EACH PARTY HERETO CONSENTS TO THE JURISDICTION OF, AND
VENUE IN, ANY FEDERAL OR STATE COURT OF COMPETENT JURISDICTION LOCATED IN THE
COUNTY OF DUPAGE IN THE STATE OF ILLINOIS.
3
(B)
ENTIRE AGREEMENT.
THIS AGREEMENT
AND ANY OTHER AGREEMENT OR DOCUMENT DELIVERED IN CONNECTION WITH THIS AGREEMENT,
INCLUDING THE LETTER AGREEMENT DATED AS OF THE DATE HEREOF, BETWEEN THE COMPANY
AND THE EXECUTIVE, STATE THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES
ON THE SUBJECT MATTER OF THIS AGREEMENT, AND SUPERSEDE ALL PREVIOUS AGREEMENTS,
ARRANGEMENTS, COMMUNICATIONS AND UNDERSTANDINGS RELATING TO THAT SUBJECT MATTER.
(C)
COUNTERPARTS.
THIS AGREEMENT MAY
BE SIGNED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL, WITH THE SAME EFFECT AS IF ALL SIGNATURES WERE ON THE SAME DOCUMENT.
(D)
AMENDMENT; WAIVER; ETC.
THIS
AGREEMENT, AND EACH OTHER AGREEMENT OR DOCUMENT DELIVERED IN CONNECTION WITH
THIS AGREEMENT, MAY BE AMENDED, MODIFIED, SUPERSEDED OR CANCELED, AND ANY OF THE
TERMS THEREOF MAY BE WAIVED, ONLY BY A WRITTEN DOCUMENT SIGNED BY EACH PARTY TO
THIS AGREEMENT OR, IN THE CASE OF WAIVER, BY THE PARTY OR PARTIES WAIVING
COMPLIANCE.
THE DELAY OR FAILURE OF ANY PARTY AT ANY TIME OR TIMES TO EXERCISE
ANY RIGHT OR REQUIRE THE PERFORMANCE OF ANY DUTY UNDER THIS AGREEMENT OR ANY
OTHER AGREEMENT OR DOCUMENT DELIVERED IN CONNECTION WITH THIS AGREEMENT SHALL IN
NO WAY AFFECT THE RIGHT OF THAT PARTY AT A LATER TIME TO EXERCISE THAT RIGHT OR
ENFORCE THAT DUTY OR ANY