TIME WITHIN THE IMMEDIATELY PRECEDING ONE YEAR PERIOD OR WHOSE BUSINESS
HAS BEEN SOLICITED ON BEHALF OF THE COMPANY OR ANY OF ITS AFFILIATES BY ANY OF
THEIR OFFICERS, EMPLOYEES OR AGENTS WITHIN SAID ONE YEAR PERIOD, OTHER THAN BY
FORM LETTER, BLANKET MAILING OR PUBLISHED ADVERTISEMENT, AND (B) ONLY IF THE
EXECUTIVE HAD A BUSINESS RELATIONSHIP WITH SUCH PERSON AS A RESULT OF THE
EXECUTIVE'S EMPLOYMENT OR OTHER ASSOCIATIONS WITH THE COMPANY OR ONE OF ITS
AFFILIATES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
SECTION 9, AFTER TERMINATION OF EXECUTIVE'S EMPLOYMENT, THIS RESTRICTION SHALL
APPLY ONLY TO CUSTOMERS OR PROSPECTIVE CUSTOMERS LOCATED IN THOSE STATES WITHIN
THE UNITED STATES IN WHICH THE COMPANY WAS DOING BUSINESS DURING THE YEAR
PRECEDING EXECUTIVE'S TERMINATION.
(D)
THE EXECUTIVE FURTHER AGREES THAT WHILE THE EXECUTIVE IS EMPLOYED
BY THE COMPANY AND DURING THE NON-COMPETITION PERIOD THE EXECUTIVE SHALL NOT
WILLFULLY MAKE FALSE, MISLEADING OR DISPARAGING STATEMENTS ABOUT THE COMPANY
INCLUDING, WITHOUT LIMITATION, ITS PRODUCTS, SERVICES, MANAGEMENT, DIRECT OR
INDIRECT EQUITY HOLDERS, EMPLOYEES AND CUSTOMERS.
10.
ENFORCEMENT OF COVENANTS. THE EXECUTIVE ACKNOWLEDGES THAT THE
EXECUTIVE HAS CAREFULLY READ AND CONSIDERED ALL THE TERMS AND CONDITIONS OF THIS
AGREEMENT, INCLUDING THE RESTRAINTS IMPOSED UPON THE EXECUTIVE'S PURSUANT TO
SECTIONS 7, 8 AND 9 HEREOF. THE EXECUTIVE AGREES WITHOUT RESERVATION THAT EACH
OF THE RESTRAINTS CONTAINED HEREIN IS NECESSARY FOR THE REASONABLE AND PROPER
PROTECTION OF THE GOODWILL, CONFIDENTIAL INFORMATION AND OTHER LEGITIMATE
INTERESTS OF THE COMPANY AND ITS AFFILIATES; THAT EACH AND EVERY ONE OF THOSE
RESTRAINTS IS REASONABLE IN RESPECT TO SUBJECT MATTER, LENGTH OF TIME AND
GEOGRAPHIC AREA; AND THAT THESE RESTRAINTS, INDIVIDUALLY OR IN THE AGGREGATE,
WILL NOT PREVENT THE EXECUTIVE FROM OBTAINING OTHER
14
SUITABLE EMPLOYMENT DURING THE PERIOD IN WHICH THE EXECUTIVE IS BOUND BY THESE
RESTRAINTS. THE EXECUTIVE FURTHER AGREES THAT THE EXECUTIVE WILL NEVER ASSERT,
OR PERMIT TO BE ASSERTED ON THE EXECUTIVE'S BEHALF, IN ANY FORUM, ANY POSITION
CONTRARY TO THE FOREGOING.
THE EXECUTIVE FURTHER ACKNOWLEDGES THAT, WERE THE
EXECUTIVE TO BREACH ANY OF THE COVENANTS CONTAINED IN SECTIONS 7, 8 OR 9 HEREOF,
THE DAMAGE TO THE COMPANY WOULD BE IRREPARABLE. THE EXECUTIVE THEREFORE AGREES
THAT THE COMPANY, IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO IT, SHALL BE
ENTITLED TO PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AGAINST ANY BREACH OR
THREATENED BREACH BY THE EXECUTIVE OF ANY OF SAID COVENANTS, WITHOUT HAVING TO
POST BOND. THE PARTIES FURTHER AGREE THAT, IN THE EVENT THAT ANY PROVISION OF
SECTION 7, 8 OR 9 HEREOF SHALL BE DETERMINED BY ANY COURT OF COMPETENT
JURISDICTION TO BE UNENFORCEABLE BY REASON OF ITS BEING EXTENDED OVER TOO GREAT
A TIME, TOO LARGE A GEOGRAPHIC AREA OR TOO GREAT A RANGE OF ACTIVITIES, SUCH
PROVISION SHALL BE DEEMED TO BE MODIFIED TO PERMIT ITS ENFORCEMENT TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
11.
CONFLICTING AGREEMENTS. THE EXECUTIVE HEREBY REPRESENTS AND
WARRANTS THAT THE EXECUTION OF THIS AGREEMENT AND THE PERFORMANCE OF THE
EXECUTIVE'S OBLIGATIONS HEREUNDER WILL NOT BREACH OR