NOT ENGAGE IN ANY ACTIVITY WITH SUCH PERSON
THAT OTHERWISE WOULD CONSTITUTE COMPETITION;
(II)
DURING THE NON-COMPETITION PERIOD, EXECUTIVE SHALL NOT, DIRECTLY
OR INDIRECTLY, AND SHALL CAUSE ANY PERSON CONTROLLED BY EXECUTIVE NOT, TO:
(A) INDUCE OR ATTEMPT TO INDUCE ANY EMPLOYEE OF THE COMPANY OR ANY OF ITS
AFFILIATES OR ANY DISTRIBUTOR OF ANY MEMBER OF THE COMPANY GROUP TO LEAVE THE
EMPLOY OF SUCH INDIVIDUAL'S EMPLOYER; (B) HIRE OR OFFER TO HIRE ANY PERSON WHO
IS, OR WITHIN THE PRECEDING SIX-MONTH PERIOD WAS, AN EMPLOYEE OF OR CONSULTANT
TO ANY MEMBER OF THE COMPANY GROUP OR ANY DISTRIBUTOR OF ANY MEMBER OF THE
COMPANY GROUP; OR (C) INDUCE OR ATTEMPT TO INDUCE ANY SUPPLIER, VENDOR,
LICENSEE, DISTRIBUTOR, EMPLOYEE OF ANY DISTRIBUTOR, CONTRACTOR OR OTHER BUSINESS
RELATION OF ANY MEMBER OF THE COMPANY GROUP TO CEASE DOING BUSINESS WITH, OR
MATERIALLY ALTER ITS BUSINESS RELATIONSHIP WITH, SUCH PERSON; AND
(III)
AT ALL TIMES FOLLOWING THE SEPARATION DATE, EXECUTIVE SHALL NOT
DISPARAGE, OR MAKE OR SOLICIT, OR ENCOURAGE OTHERS TO MAKE OR SOLICIT, ANY
DEROGATORY OR NEGATIVE STATEMENT OR COMMUNICATION ABOUT ANY MEMBER OF THE
COMPANY GROUP OR ANY OF THEIR RESPECTIVE BUSINESSES, PRODUCTS, SERVICES OR
ACTIVITIES; PROVIDED, HOWEVER, THAT SUCH RESTRICTION SHALL NOT PROHIBIT OR
CONSTRAIN TESTIMONY COMPELLED BY VALID LEGAL PROCESS OR VALID DISPUTE RESOLUTION
PROCESS.
(B)
EXECUTIVE HEREBY ACKNOWLEDGES AND AGREES THAT THE ENFORCEMENT OF
THE PROVISIONS OF SECTION 10 AND THIS SECTION 11 MAY POTENTIALLY INTERFERE WITH
EXECUTIVE'S ABILITY TO PURSUE A SIMILAR LIVELIHOOD DURING THE PERIODS SET FORTH
THEREIN.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPANY ENTERED INTO THIS
AGREEMENT IN RELIANCE ON THE PROVISIONS OF SECTION 10 AND THIS SECTION 11 AND
THE ENFORCEMENT OF THIS AGREEMENT IS NECESSARY TO ENSURE THE PRESERVATION,
PROTECTION AND CONTINUITY OF THE BUSINESS, TRADE SECRETS AND OTHER CONFIDENTIAL
INFORMATION AND GOODWILL OF THE COMPANY AND ITS AFFILIATES TO THE EXTENT AND FOR
THE PERIODS OF TIME EXPRESSLY AGREED TO HEREIN.
EXECUTIVE AGREES THAT, DUE TO
THE NATURE OF THE BUSINESS OF THE COMPANY AND ITS AFFILIATES, THE RESTRICTIONS
SET FORTH IN THIS AGREEMENT (INCLUDING IN SECTION 10 AND IN THIS SECTION 11) ARE
REASONABLE AS TO TIME AND SCOPE.
8
(C)
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, (I) EACH
MEMBER OF THE COMPANY GROUP MAY PURSUE, AT ITS DISCRETION, ENFORCEMENT OF
SECTION 10 AND THIS SECTION 11 IN ANY COURT OF COMPETENT JURISDICTION (EACH A
"COURT"), AND (II) IN NO EVENT SHALL ANY MEMBER OF THE COMPANY GROUP BE HELD
LIABLE FOR EXECUTIVE'S LEGAL FEES OR COSTS IN PURSUIT OF SUCH CLAIM, UNLESS
THERE IS A FINAL DETERMINATION BY SUCH COURT THAT THE APPLICABLE MEMBER OF THE
COMPANY GROUP ACTED IN BAD FAITH.
(D)
THE PARTIES HERETO AGREE THAT MONEY DAMAGES WOULD NOT BE AN
ADEQUATE REMEDY FOR ANY BREACH OF SECTION 10 OR THIS SECTION 11, AND ANY BREACH
OF THE TERMS OF SECTION 10 OR IN THIS SECTION 11 WOULD RESULT IN IRREPARABLE
INJURY AND DAMAGE TO THE COMPANY GROUP FOR WHICH NO MEMBER