ANY
DEROGATORY OR NEGATIVE STATEMENT OR COMMUNICATION ABOUT ANY MEMBER OF THE
COMPANY GROUP OR ANY OF THEIR RESPECTIVE BUSINESSES, PRODUCTS, SERVICES OR
ACTIVITIES; PROVIDED, HOWEVER, THAT SUCH RESTRICTION SHALL NOT PROHIBIT OR
CONSTRAIN TESTIMONY COMPELLED BY VALID LEGAL PROCESS OR VALID DISPUTE RESOLUTION
PROCESS.
(B)
EXECUTIVE HEREBY ACKNOWLEDGES AND AGREES THAT THE ENFORCEMENT OF
THE PROVISIONS OF SECTION 10 AND THIS SECTION 11 MAY POTENTIALLY INTERFERE WITH
EXECUTIVE'S ABILITY TO PURSUE A SIMILAR LIVELIHOOD DURING THE PERIODS SET FORTH
THEREIN.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPANY ENTERED INTO THIS
AGREEMENT IN RELIANCE ON THE PROVISIONS OF SECTION 10 AND THIS SECTION 11 AND
THE ENFORCEMENT OF THIS AGREEMENT IS NECESSARY TO ENSURE THE PRESERVATION,
PROTECTION AND CONTINUITY OF THE BUSINESS, TRADE SECRETS AND OTHER CONFIDENTIAL
9
INFORMATION AND GOODWILL OF THE COMPANY AND ITS AFFILIATES TO THE EXTENT AND FOR
THE PERIODS OF TIME EXPRESSLY AGREED TO HEREIN.
EXECUTIVE AGREES THAT, DUE TO
THE NATURE OF THE BUSINESS OF THE COMPANY AND ITS AFFILIATES, THE RESTRICTIONS
SET FORTH IN THIS AGREEMENT (INCLUDING IN SECTION 10 AND IN THIS SECTION 11) ARE
REASONABLE AS TO TIME AND SCOPE.
(C)
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, (I) EACH
MEMBER OF THE COMPANY GROUP MAY PURSUE, AT ITS DISCRETION, ENFORCEMENT OF
SECTION 10 AND THIS SECTION 11 IN ANY COURT OF COMPETENT JURISDICTION (EACH A
"COURT"), AND (II) IN NO EVENT SHALL ANY MEMBER OF THE COMPANY GROUP BE HELD
LIABLE FOR EXECUTIVE'S LEGAL FEES OR COSTS IN PURSUIT OF SUCH CLAIM, UNLESS
THERE IS A FINAL DETERMINATION BY SUCH COURT THAT THE APPLICABLE MEMBER OF THE
COMPANY GROUP ACTED IN BAD FAITH.
(D)
THE PARTIES HERETO AGREE THAT MONEY DAMAGES WOULD NOT BE AN
ADEQUATE REMEDY FOR ANY BREACH OF SECTION 10 OR THIS SECTION 11, AND ANY BREACH
OF THE TERMS OF SECTION 10 OR IN THIS SECTION 11 WOULD RESULT IN IRREPARABLE
INJURY AND DAMAGE TO THE COMPANY GROUP FOR WHICH NO MEMBER OF THE COMPANY GROUP
WOULD HAVE AN ADEQUATE REMEDY AT LAW.
THEREFORE, IN THE EVENT OF A BREACH OR A
THREATENED BREACH OF SECTION 10 OR IN THIS SECTION 11, THE COMPANY GROUP, EACH
OF THEIR AFFILIATES AND THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, IN ADDITION TO
ANY OTHER RIGHTS AND REMEDIES EXISTING IN THEIR FAVOR AT LAW OR IN EQUITY, SHALL
BE ENTITLED TO SPECIFIC PERFORMANCE OR IMMEDIATE INJUNCTIVE OR OTHER EQUITABLE
RELIEF FROM A COURT IN ORDER TO ENFORCE, OR PREVENT ANY VIOLATIONS OF, THE
PROVISIONS OF SECTION 10 OR THIS SECTION 11 (WITHOUT POSTING A BOND OR OTHER
SECURITY), WITHOUT HAVING TO PROVE DAMAGES.
THE TERMS OF THIS SECTION 11(D)
SHALL NOT PREVENT ANY MEMBER OF THE COMPANY GROUP FROM PURSUING ANY OTHER
AVAILABLE REMEDIES FOR ANY BREACH OR THREATENED BREACH OF THIS AGREEMENT.
(E)
FOR PURPOSES HEREOF, "COMPETITION" MEANS TO DIRECTLY OR INDIRECTLY
OWN ANY INTEREST IN, MANAGE, OPERATE, CONTROL, INVEST OR ACQUIRE AN INTEREST IN,
PARTICIPATE IN, CONSULT WITH, RENDER SERVICES FOR, OPERATE OR IN ANY MANNER
ENGAGE IN