COVENANTS TO BE UNENFORCEABLE WITH RESPECT TO THE TERM THEREOF OR
THE SCOPE OF THE SUBJECT MATTER OR GEOGRAPHY COVERED THEREBY, SUCH REMAINING
COVENANTS SHALL NONETHELESS BE ENFORCEABLE BY SUCH COURT OR TRIBUNAL AGAINST
SUCH OTHER PARTY OR PARTIES OR UPON SUCH SHORTER TERM OR WITHIN SUCH LESSER
SCOPE AS MAY BE DETERMINED BY THE COURT OR TRIBUNAL TO BE ENFORCEABLE.
(D)
BECAUSE EXECUTIVE'S SERVICES ARE UNIQUE AND BECAUSE EXECUTIVE HAS ACCESS
TO CONFIDENTIAL INFORMATION AND STRATEGIC PLANS OF THE COMPANY OF THE MOST
VALUABLE NATURE AND WILL HELP THE COMPANY DEVELOP GOODWILL, THE PARTIES AGREE
THAT THE COVENANTS CONTAINED IN THIS SECTION 11 ARE NECESSARY TO PROTECT THE
VALUE OF THE BUSINESS OF THE COMPANY AND THAT A BREACH OF ANY SUCH COVENANT
WOULD RESULT IN IRREPARABLE AND CONTINUING DAMAGE FOR WHICH THERE WOULD BE NO
ADEQUATE REMEDY AT LAW.
THE PARTIES AGREE THEREFORE THAT IN THE EVENT OF A
BREACH OR THREATENED BREACH OF THIS AGREEMENT, THE COMPANY OR ITS SUCCESSORS OR
ASSIGNS MAY, IN ADDITION TO OTHER RIGHTS AND REMEDIES EXISTING IN THEIR FAVOR,
APPLY TO ANY COURT OF COMPETENT JURISDICTION FOR SPECIFIC PERFORMANCE AND/OR
INJUNCTIVE OR OTHER RELIEF IN ORDER TO ENFORCE, OR PREVENT ANY VIOLATIONS OF,
THE PROVISIONS HEREOF.
THE
14
PARTIES FURTHER AGREE THAT IN THE EVENT THE COMPANY IS GRANTED ANY SUCH
INJUNCTIVE OR OTHER RELIEF, THE COMPANY SHALL NOT BE REQUIRED TO POST ANY BOND
OR SECURITY THAT MAY OTHERWISE NORMALLY BE ASSOCIATED WITH SUCH RELIEF.
12.
MISCELLANEOUS PROVISIONS.
(A)
NOTICE.
NOTICES AND ALL OTHER COMMUNICATIONS CONTEMPLATED BY THIS
AGREEMENT SHALL BE IN WRITING, SHALL BE EFFECTIVE WHEN GIVEN, AND IN ANY EVENT
SHALL BE DEEMED TO HAVE BEEN DULY GIVEN (I) WHEN DELIVERED, IF PERSONALLY
DELIVERED, (II) THREE (3) BUSINESS DAYS AFTER DEPOSIT IN THE U.S. MAIL, IF
MAILED BY U.S. REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR
(III) ONE (1) BUSINESS DAY AFTER THE BUSINESS DAY OF DEPOSIT WITH FEDERAL
EXPRESS OR SIMILAR OVERNIGHT COURIER, IF SO DELIVERED, FREIGHT PREPAID.
IN THE
CASE OF EXECUTIVE, NOTICES SHALL BE ADDRESSED TO HIM AT THE HOME ADDRESS WHICH
HE MOST RECENTLY COMMUNICATED TO THE COMPANY IN WRITING.
IN THE CASE OF THE
COMPANY, NOTICES SHALL BE ADDRESSED TO ITS CORPORATE HEADQUARTERS, AND ALL
NOTICES SHALL BE DIRECTED TO THE ATTENTION OF ITS CORPORATE SECRETARY.
(B)
NOTICE OF TERMINATION.
ANY TERMINATION BY THE COMPANY OR EXECUTIVE SHALL
BE COMMUNICATED BY A NOTICE OF TERMINATION TO THE OTHER PARTY HERETO GIVEN IN
ACCORDANCE WITH PARAGRAPH (A) HEREOF.
SUCH NOTICE SHALL INDICATE THE SPECIFIC
TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON.
(C)
SUCCESSORS.
(I)
COMPANY'S SUCCESSORS.
ANY SUCCESSOR TO THE COMPANY (WHETHER DIRECT OR
INDIRECT AND WHETHER BY PURCHASE, LEASE, MERGER, CONSOLIDATION, LIQUIDATION OR
OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S BUSINESS AND/OR ASSETS
SHALL BE ENTITLED TO ASSUME THE RIGHTS AND SHALL BE OBLIGATED TO ASSUME THE
OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT AND SHALL AGREE TO PERFORM THE
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT IN THE SAME MANNER AND