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 10
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 10
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.
11.
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.
12.
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 IS A PARTY AND THAT HE HAS NOT ENTERED INTO,
AND WILL NOT ENTER INTO, ANY AGREEMENT, EITHER ORAL OR WRITTEN, IN CONFLICT
HEREWITH.
THE COMPANY REPRESENTS AND WARRANTS TO EXECUTIVE THAT ALL NECESSARY
CORPORATE ACTIONS FOR THE APPROVAL OF THIS AGREEMENT HAVE BEEN TAKEN SUCH THAT,
UPON THE COMPANY'S EXECUTION OF THIS AGREEMENT, THIS AGREEMENT WILL CONSTITUTE A
LEGAL, VALID AND BINDING OBLIGATION OF THE COMPANY.
13.
RESOLUTION OF DISPUTES.
ANY DISPUTE CONCERNING THE VALIDITY,
INTERPRETATION, ENFORCEMENT, OR BREACH OF THIS AGREEMENT, OR OTHERWISE ARISING
BETWEEN THE PARTIES, SHALL (EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN
SECTION 10(G) WITH RESPECT TO CERTAIN REQUESTS FOR INJUNCTIVE RELIEF) BE
SUBMITTED TO BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION
("AAA") FOR RESOLUTION.
SUCH ARBITRATION SHALL BE CONDUCTED IN DALLAS, TEXAS,
AND THE ARBITRATOR WILL APPLY NEW YORK LAW, INCLUDING FEDERAL LAW AS APPLIED IN
NEW YORK COURTS.
THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE
AAA'S COMMERCIAL ARBITRATION RULES, AS MODIFIED BY THE TERMS SET FORTH IN THIS
AGREEMENT.
THE ARBITRATION WILL BE CONDUCTED BY A SINGLE ARBITRATOR, WHO SHALL
BE AN ATTORNEY WHO SPECIALIZES IN THE FIELD OF EMPLOYMENT LAW AND SHALL HAVE
PRIOR EXPERIENCE ARBITRATING EMPLOYMENT DISPUTES.
THE AWARD OF THE ARBITRATOR
SHALL BE FINAL AND BINDING ON THE PARTIES, AND JUDGMENT ON THE AWARD MAY BE
CONFIRMED AND ENTERED IN ANY COURT
14
HAVING JURISDICTION.
THE ARBITRATION SHALL