IN A BUSINESS SIMILAR TO THE BUSINESS OF THE COMPANY BUT NEVERTHELESS
AGREES AND HEREBY ACKNOWLEDGES THAT (I) SUCH PROVISIONS DO NOT IMPOSE A GREATER
RESTRAINT THAN IS NECESSARY TO PROTECT THE GOODWILL OR OTHER BUSINESS INTERESTS
OF THE COMPANY, (II) SUCH PROVISIONS CONTAIN REASONABLE LIMITATIONS AS TO TIME
AND SCOPE OF ACTIVITY TO BE RESTRAINED, (III) SUCH PROVISIONS ARE NOT HARMFUL TO
THE GENERAL PUBLIC, (IV) SUCH PROVISIONS ARE NOT UNDULY BURDENSOME TO EXECUTIVE,
AND (V) THE CONSIDERATION PROVIDED HEREUNDER IS SUFFICIENT TO COMPENSATE
EXECUTIVE FOR THE RESTRICTIONS CONTAINED IN SUCH PROVISIONS.
IN CONSIDERATION
THEREOF AND IN LIGHT OF EXECUTIVE'S EDUCATION, SKILLS AND LIABILITIES, EXECUTIVE
AGREES THAT EXECUTIVE WILL NOT ASSERT IN ANY FORUM THAT SUCH PROVISIONS PREVENT
EXECUTIVE FROM EARNING A LIVING OR OTHERWISE ARE VOID OR UNENFORCEABLE OR SHOULD
BE HELD OR UNENFORCEABLE.
ACCORDINGLY, EXECUTIVE AGREES THAT DURING THE
EMPLOYMENT TERM AND FOR A PERIOD OF TWELVE (12) MONTHS FOLLOWING TERMINATION OF
EMPLOYMENT (THE "RESTRICTIVE PERIOD"), EXECUTIVE WILL NOT (I) DIRECTLY OR
INDIRECTLY SOLICIT OR ENCOURAGE ANY EMPLOYEE OF THE COMPANY TO LEAVE THE
EMPLOYMENT OF THE COMPANY, AND (II) DIRECTLY OR INDIRECTLY, SOLICIT OR ENCOURAGE
TO CEASE TO WORK WITH THE COMPANY ANY CONSULTANT THEN UNDER CONTRACT WITH THE
COMPANY.
(B)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT
ALTHOUGH EXECUTIVE AND THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN THIS
SECTION 6 TO BE REASONABLE, IF A FINAL JUDICIAL DETERMINATION IS MADE BY A COURT
OF COMPETENT JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER RESTRICTION
CONTAINED IN THE AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST EXECUTIVE,
THE PROVISIONS OF THE AGREEMENT SHALL NOT BE RENDERED VOID BUT SHALL BE DEEMED
AMENDED TO APPLY AS TO SUCH MAXIMUM TIME AND TERRITORY AND TO SUCH MAXIMUM
EXTENT AS SUCH COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE ENFORCEABLE.
ALTERNATIVELY, IF ANY COURT OF COMPETENT JURISDICTION FINDS THAT ANY RESTRICTION
CONTAINED IN THE AGREEMENT IS UNENFORCEABLE, AND SUCH RESTRICTION CANNOT BE
AMENDED SO AS TO MAKE IT ENFORCEABLE, SUCH FINDING SHALL NOT AFFECT THE
ENFORCEABILITY OF ANY OF THE OTHER RESTRICTIONS CONTAINED HEREIN.
7.
SPECIFIC PERFORMANCE.
(A)
THE EXECUTIVE ACKNOWLEDGES THAT THE
SERVICES TO BE RENDERED BY HIM HEREUNDER ARE OF A SPECIAL, UNIQUE, EXTRAORDINARY
AND PERSONAL CHARACTER AND THAT THE COMPANY WOULD SUSTAIN IRREPARABLE HARM IN
THE EVENT OF A VIOLATION BY THE EXECUTIVE OF SECTION 5 OR 6 OF THIS AGREEMENT.
THEREFORE, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE, THE COMPANY SHALL BE
ENTITLED TO SPECIFIC ENFORCEMENT AND/OR INJUNCTION FROM ANY COURT OF COMPETENT
JURISDICTION RESTRAINING THE EXECUTIVE FROM COMMITTING OR CONTINUING ANY SUCH
VIOLATION OF THIS AGREEMENT WITHOUT PROVING ACTUAL DAMAGES OR POSTING A BOND OR
OTHER SECURITY.
NOTHING HEREIN SHALL BE CONSTRUED AS PROHIBITING THE COMPANY
FROM PURSUING ANY OTHER REMEDIES AVAILABLE TO IT FOR SUCH BREACH OR THREATENED
BREACH, INCLUDING THE RECOVERY OF DAMAGES.
8
(B)
IF ANY OF THE RESTRICTIONS ON ACTIVITIES OF
THE EXECUTIVE CONTAINED IN SECTION 6 HEREOF SHALL FOR ANY REASON BE HELD BY A
COURT OF COMPETENT JURISDICTION