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 this 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.
4
7.
Nondisparagement and Cooperation.
A.
THE EXECUTIVE HEREBY AGREES NOT TO DEFAME,
DISPARAGE OR CRITICIZE ANY MEMBER OF THE COMPANY GROUP OR ANY OF THEIR PRODUCTS,
SERVICES, FINANCES, FINANCIAL CONDITION, CAPABILITIES OR OTHER ASPECT OF OR ANY
OF THEIR BUSINESS, OR ANY FORMER OR EXISTING EMPLOYEES, MANAGERS, DIRECTORS,
OFFICERS OR AGENTS OF, OR CONTRACTING PARTIES WITH, ANY MEMBER OF THE COMPANY
GROUP IN ANY MEDIUM TO ANY PERSON OR ENTITY WITHOUT LIMITATION IN TIME.
NOTWITHSTANDING THIS PROVISION, THE EXECUTIVE MAY CONFER IN CONFIDENCE WITH HIS
LEGAL REPRESENTATIVE AND MAKE TRUTHFUL STATEMENTS AS REQUIRED BY LAW.
THE
COMPANY AGREES TO INSTRUCT THE MEMBERS OF THE BOARD AND ITS SENIOR EXECUTIVE
OFFICERS NOT TO DEFAME, DISPARAGE OR CRITICIZE THE EXECUTIVE IN ANY MEDIUM TO
ANY PERSON OR ENTITY WITHOUT LIMITATION IN TIME.
B.
THE EXECUTIVE SHALL CONTINUE TO MAKE
HIMSELF AVAILABLE AT REASONABLE TIMES, SO AS NOT TO UNREASONABLY INTERFERE WITH
HIS ONGOING BUSINESS ACTIVITIES, TO THE COMPANY GROUP AND TO ADVISE THE COMPANY
GROUP, AT THEIR REQUEST, ABOUT DISPUTES WITH THIRD PARTIES AS TO WHICH THE
EXECUTIVE HAS KNOWLEDGE, AND, THE EXECUTIVE AGREES TO COOPERATE FULLY WITH THE
COMPANY GROUP IN CONNECTION WITH LITIGATION, ARBITRATION AND SIMILAR PROCEEDINGS
(COLLECTIVELY "DISPUTE PROCEEDINGS") AND TO PROVIDE TESTIMONY WITH RESPECT TO
THE EXECUTIVE'S KNOWLEDGE IN ANY SUCH DISPUTE PROCEEDINGS INVOLVING THE COMPANY
AND OR ANY MEMBER OF THE COMPANY GROUP.
IN THE EVENT THAT THE EXECUTIVE IS
REQUESTED BY THE COMPANY OR THE COMPANY GROUP TO COOPERATE AS REQUIRED IN THIS
SECTION 7B, THE COMPANY SHALL (I) COMPENSATE THE EXECUTIVE AT A RATE OF $1,000
PER DAY AND (II) REIMBURSE THE EXECUTIVE FOR HIS REASONABLE OUT-OF-POCKET TRAVEL
AND LODGING EXPENSES.
8.
Acknowledgment and Release.
A.
IN CONSIDERATION OF THE COMPANY'S EXECUTION
OF THE AGREEMENT, AND EXCEPT WITH RESPECT TO THE COMPANY'S OBLIGATIONS ARISING
UNDER OR PRESERVED IN THE AGREEMENT AND THE OPTION AGREEMENTS, THE EXECUTIVE,
FOR AND ON BEHALF OF HIMSELF AND HIS HEIRS AND ASSIGNS, HEREBY WAIVES AND
RELEASES ANY COMMON LAW, STATUTORY OR OTHER COMPLAINTS, CLAIMS, CHARGES OR
CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE EXECUTIVE'S EMPLOYMENT OR
TERMINATION OF EMPLOYMENT WITH, OR HIS SERVING IN ANY CAPACITY IN RESPECT OF,
ANY MEMBER OF THE COMPANY GROUP, BOTH KNOWN AND UNKNOWN, IN LAW OR IN EQUITY,
WHICH THE EXECUTIVE MAY NOW HAVE OR EVER HAD AGAINST ANY MEMBER OF THE COMPANY
GROUP OR ANY SHAREHOLDER, EMPLOYEE, DIRECTOR OR OFFICER OF ANY MEMBER OF THE
COMPANY GROUP (COLLECTIVELY, THE "RELEASEES"), INCLUDING, WITHOUT LIMITATION,
ANY CLAIM FOR ANY SEVERANCE BENEFIT WHICH BUT FOR THE