IN ANY LEGAL
PROCEEDING OR PURSUANT TO ANY GOVERNMENTAL OR REGULATORY INVESTIGATION.
(C)
NON-SOLICITATION.
THE EMPLOYEE AGREES THAT, DURING THE EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY AND FOR A PERIOD OF ONE YEAR AFTER THE TERMINATION
OF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY FOR ANY REASON, THE EMPLOYEE WILL
NOT DIRECTLY OR
2
INDIRECTLY SOLICIT, ATTEMPT TO HIRE, OR HIRE ANY EMPLOYEE OF THE COMPANY (OR ANY
PERSON WHO MAY HAVE BEEN EMPLOYED BY THE COMPANY DURING THE LAST YEAR OF THE
TERM OF THE EMPLOYEE'S EMPLOYMENT WITH THE COMPANY), OR ASSIST IN SUCH HIRING BY
ANY OTHER PERSON OR BUSINESS ENTITY OR ENCOURAGE, INDUCE OR ATTEMPT TO INDUCE
ANY SUCH EMPLOYEE TO TERMINATE HIS OR HER EMPLOYMENT WITH THE COMPANY.
5.
REMEDIES.
THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE EMPLOYEE'S OBLIGATIONS ARISING
UNDER SECTION 4 ABOVE ARE OF THE ESSENCE TO THIS AGREEMENT AND THAT THE
EMPLOYEE'S BREACH OF ANY OF THESE OBLIGATIONS WILL TERMINATE THE COMPANY'S
OBLIGATIONS TO THE EMPLOYEE UNDER SECTION 1 OF THIS AGREEMENT.
SHOULD THE
EMPLOYEE BREACH ANY SUCH OBLIGATIONS THE EMPLOYEE SHALL FURTHER BE REQUIRED TO
PAY BACK TO THE COMPANY THE FULL VALUE OF ANY BENEFIT THAT THE EMPLOYEE HAS
DERIVED UNDER SECTION 1 ABOVE.
THE EMPLOYEE FURTHER ACKNOWLEDGES AND AFFIRMS
THAT MONEY DAMAGES CANNOT ADEQUATELY COMPENSATE THE COMPANY FOR ANY BREACH BY
THE EMPLOYEE OF SECTION 4 OF THIS AGREEMENT AND THAT THE COMPANY IS ENTITLED TO
EQUITABLE RELIEF IN ANY MASSACHUSETTS OR OTHER COURT OF COMPETENT JURISDICTION
TO PREVENT OR OTHERWISE RESTRAIN ANY ACTUAL OR THREATENED BREACH OF THE
PROVISIONS OF SAID SECTIONS AND/OR COMPEL SPECIFIC PERFORMANCE OF, OR OTHER
COMPLIANCE WITH, THE TERMS THEREOF.
6.
MISCELLANEOUS.
(A)
AT-WILL EMPLOYMENT.
THIS AGREEMENT IS NOT A CONTRACT TO EMPLOY
THE EMPLOYEE FOR A DEFINITE TIME PERIOD, AND IS NOT INTENDED TO BE AND DOES NOT
CONSTITUTE A CONTRACT OR PART OF A CONTRACTUAL AGREEMENT FOR CONTINUED
EMPLOYMENT, EITHER EXPRESS OR IMPLIED, BETWEEN THE COMPANY AND THE EMPLOYEE, IT
BEING ACKNOWLEDGED THAT THE EMPLOYEE'S EMPLOYMENT IS "AT WILL" AND THAT EITHER
THE EMPLOYEE OR THE COMPANY MAY TERMINATE THE EMPLOYMENT RELATIONSHIP AT ANY
TIME, FOR ANY OR NO REASON, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT PRIOR
NOTICE.
(B)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE RESPECTIVE LEGAL REPRESENTATIVES, HEIRS, SUCCESSORS,
ASSIGNS, AND PRESENT AND FORMER EMPLOYEES AND AGENTS OF THE PARTIES HERETO TO
THE EXTENT PERMITTED BY LAW.
(C)
ATTORNEYS FEES.
EACH PARTY SHALL BEAR HIS OR ITS OWN ATTORNEY'S
FEES AND EXPENSES.
(D)
GOVERNING LAW.
THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND WITHOUT
REGARD TO ANY CONFLICT OF LAWS PROVISIONS.
(E)
EFFECT ON OTHER AGREEMENTS; MODIFICATION.
THIS AGREEMENT
SUPERSEDES ANY PRIOR ORAL OR WRITTEN UNDERSTANDING OR AGREEMENT RELATING TO
SEVERANCE PAYMENTS TO BE MADE TO THE EMPLOYEE FOLLOWING TERMINATION OF
EMPLOYMENT WITH THE COMPANY (INCLUDING WITHOUT LIMITATION THE LETTER AGREEMENT
BETWEEN THE EMPLOYEE AND THE COMPANY DATED OCTOBER 17, 2005, EXCEPT