WILL NOT
DEFAME OR PUBLICLY CRITICIZE EXECUTIVE
13
WITH THE INTENT TO DAMAGE THE SERVICES, BUSINESS, INTEGRITY, VERACITY OR
PERSONAL OR PROFESSIONAL REPUTATION OF EXECUTIVE IN EITHER A PROFESSIONAL OR
PERSONAL MANNER.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS
SECTION 11(F) SHALL PREVENT ANY PERSON FROM MAKING ANY TRUTHFUL STATEMENT TO THE
EXTENT (I) NECESSARY TO REBUT ANY UNTRUE PUBLIC STATEMENTS MADE BY ANOTHER
PARTY; (II) NECESSARY WITH RESPECT TO ANY LITIGATION, ARBITRATION OR MEDIATION
INVOLVING THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE ENFORCEMENT OF THIS
AGREEMENT OR (III) REQUIRED BY LAW OR BY ANY COURT, ARBITRATOR, MEDIATOR OR
ADMINISTRATIVE OR LEGISLATIVE BODY (INCLUDING ANY COMMITTEE THEREOF) WITH
JURISDICTION OVER SUCH PERSON.
(G)
ENFORCEMENT.
IF EXECUTIVE COMMITS A BREACH OF ANY OF THE
PROVISIONS OF THIS SECTION 11 OR THE COMPANY COMMITS A BREACH OF SECTION 11(G),
THE COMPANY OR EXECUTIVE, AS APPLICABLE, SHALL HAVE THE RIGHT AND REMEDY TO HAVE
THE PROVISION SPECIFICALLY ENFORCED BY ANY COURT HAVING JURISDICTION.
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT THE SERVICES BEING RENDERED HEREUNDER TO THE
COMPANY ARE OF A SPECIAL, UNIQUE AND EXTRAORDINARY CHARACTER AND THAT ANY SUCH
BREACH WILL CAUSE IRREPARABLE INJURY TO THE COMPANY AND THAT MONEY DAMAGES WILL
NOT PROVIDE AN ADEQUATE REMEDY TO THE COMPANY AND THE COMPANY ACKNOWLEDGES AND
AGREES THAT ANY SUCH BREACH WILL CAUSE IRREPARABLE INJURY TO EXECUTIVE AND THAT
MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY TO EXECUTIVE.
SUCH RIGHT AND
REMEDY SHALL BE IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER RIGHTS AND
REMEDIES AVAILABLE TO THE COMPANY OR EXECUTIVE AT LAW OR IN EQUITY.
(H)
BLUE PENCIL.
IF, AT ANY TIME, THE PROVISIONS OF THIS SECTION 11
SHALL BE DETERMINED TO BE INVALID OR UNENFORCEABLE UNDER ANY APPLICABLE LAW, BY
REASON OF BEING VAGUE OR UNREASONABLE AS TO AREA, DURATION OR SCOPE OF ACTIVITY,
THIS AGREEMENT SHALL BE CONSIDERED DIVISIBLE AND SHALL BECOME AND BE IMMEDIATELY
AMENDED TO ONLY SUCH AREA, DURATION AND SCOPE OF ACTIVITY AS SHALL BE DETERMINED
TO BE REASONABLE AND ENFORCEABLE BY THE COURT OR OTHER BODY HAVING JURISDICTION
OVER THE MATTER AND EXECUTIVE AND THE COMPANY AGREE THAT THIS AGREEMENT AS SO
AMENDED SHALL BE VALID AND BINDING AS THOUGH ANY INVALID OR UNENFORCEABLE
PROVISION HAD NOT BEEN INCLUDED HEREIN.
(I)
EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS SECTION 11
AND HAS HAD THE OPPORTUNITY TO REVIEW ITS PROVISIONS WITH ANY ADVISORS AS HE
CONSIDERED NECESSARY AND THAT EXECUTIVE UNDERSTANDS THIS AGREEMENT'S CONTENTS
AND SIGNIFIES SUCH UNDERSTANDING AND AGREEMENT BY SIGNING BELOW.
12.
ASSIGNABILITY.
THIS AGREEMENT MAY ONLY BE ASSIGNED TO AN ACQUIROR
OF ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S BUSINESS THAT AGREES IN WRITING TO
ASSUME THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT.
13.
REPRESENTATION. EXECUTIVE REPRESENTS AND WARRANTS TO THE COMPANY,
AND EXECUTIVE ACKNOWLEDGES THAT THE COMPANY HAS RELIED ON SUCH REPRESENTATIONS
AND WARRANTIES IN EMPLOYING EXECUTIVE, THAT NEITHER EXECUTIVE'S DUTIES AS AN
EMPLOYEE OF THE COMPANY NOR HIS PERFORMANCE OF THIS AGREEMENT WILL BREACH ANY
OTHER AGREEMENT TO WHICH EXECUTIVE