the Executive becomes
entitled to the Termination Benefits (as defined in Section 7.2) in connection
with a termination of his employment during a Change in Control Period or a
Termination in Anticipation of a Change in Control, or the Executive's
employment with the Company is terminated for any reason after December 31,
2008, then, in any such case, these noncompetition obligations shall immediately
cease to apply.
5.3
NONSOLICITATION.
THE EXECUTIVE SHALL NOT, DIRECTLY OR INDIRECTLY
FOR THE EXECUTIVE OR FOR OTHERS, IN ANY GEOGRAPHIC AREA OR MARKET WHERE THE
COMPANY OR ANY OF ITS AFFILIATES ARE CONDUCTING ANY BUSINESS OR HAVE DURING THE
PREVIOUS 12 MONTHS CONDUCTED SUCH BUSINESS, INDUCE ANY EMPLOYEE OF THE COMPANY
OR ANY OF ITS AFFILIATES TO TERMINATE HIS OR HER EMPLOYMENT WITH THE
7
COMPANY OR SUCH AFFILIATES, OR HIRE OR ASSIST IN THE HIRING OF ANY SUCH EMPLOYEE
BY ANY PERSON, ASSOCIATION, OR ENTITY NOT AFFILIATED WITH THE COMPANY, UNLESS
SUCH EMPLOYEE HAS TERMINATED EMPLOYMENT WITH THE COMPANY AND ITS AFFILIATES
BEFORE SUCH SOLICITATION.
THESE NONSOLICITATION OBLIGATIONS SHALL APPLY DURING
THE PERIOD THAT THE EXECUTIVE IS EMPLOYED BY THE COMPANY AND DURING THE ONE-YEAR
PERIOD COMMENCING ON THE DATE OF THE EXECUTIVE'S TERMINATION OF EMPLOYMENT FOR
ANY REASON.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 5.3
SHALL NOT RESTRICT THE ABILITY OF THE COMPANY TO TAKE ACTIONS WITH RESPECT TO
THE EMPLOYMENT OR THE TERMINATION OF EMPLOYMENT OF ANY OF ITS EMPLOYEES, OR FOR
THE EXECUTIVE TO PARTICIPATE IN ANY SUCH ACTIONS IN HIS CAPACITY AS AN OFFICER
OF THE COMPANY.
5.4
ENFORCEMENT AND REMEDIES.
THE EXECUTIVE ACKNOWLEDGES THAT MONEY
DAMAGES WOULD NOT BE SUFFICIENT REMEDY FOR ANY BREACH OF THIS ARTICLE BY THE
EXECUTIVE, AND THE COMPANY SHALL BE ENTITLED TO SPECIFIC PERFORMANCE AND
INJUNCTIVE RELIEF AS REMEDIES FOR SUCH BREACH OR ANY THREATENED BREACH.
SUCH
REMEDIES SHALL NOT BE DEEMED THE EXCLUSIVE REMEDIES FOR A BREACH OF THIS
ARTICLE, BUT SHALL BE IN ADDITION TO ALL REMEDIES AVAILABLE AT LAW OR IN EQUITY
TO THE COMPANY, INCLUDING WITHOUT LIMITATION, THE RECOVERY OF DAMAGES FROM THE
EXECUTIVE AND THE EXECUTIVE'S AGENTS INVOLVED IN SUCH BREACH AND REMEDIES
AVAILABLE TO THE COMPANY PURSUANT TO THIS AND OTHER AGREEMENTS WITH THE
EXECUTIVE.
5.5
REFORMATION.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE
COMPANY AND THE EXECUTIVE CONSIDER THE RESTRICTIONS CONTAINED IN THIS ARTICLE TO
BE REASONABLE AND NECESSARY TO PROTECT THE PROPRIETARY INFORMATION OF THE
COMPANY.
NEVERTHELESS, IF ANY OF THE AFORESAID RESTRICTIONS ARE FOUND BY A
COURT HAVING JURISDICTION TO BE UNREASONABLE, OR OVERLY BROAD AS TO GEOGRAPHIC
AREA OR TIME, OR OTHERWISE UNENFORCEABLE, THE PARTIES INTEND FOR THE
RESTRICTIONS THEREIN SET FORTH TO BE MODIFIED BY SUCH COURT SO AS TO BE
REASONABLE AND ENFORCEABLE AND, AS SO MODIFIED BY THE COURT, TO BE FULLY
ENFORCED.
ARTICLE 6
STATEMENTS CONCERNING COMPANY OR EXECUTIVE
6.1
IN GENERAL.
THE EXECUTIVE AND THE COMPANY AND ITS AFFILIATES
SHALL REFRAIN FROM ANY CRITICISMS OR DISPARAGING COMMENTS ABOUT EACH OTHER OR IN
ANY WAY RELATING TO