BUSINESS THAT
REPRESENTS 20% OR MORE OF THE COMPANY'S CONSOLIDATED REVENUES OR ADJUSTED EBITDA
FOR THE FOUR FISCAL QUARTERS IMMEDIATELY PRECEDING YOUR TERMINATION OF
EMPLOYMENT.
(B)
NON-RECRUITMENT.
YOU AGREE THAT DURING YOUR EMPLOYMENT AND FOR A
PERIOD OF TWELVE (12) CALENDAR MONTHS FOLLOWING TERMINATION OF EMPLOYMENT, YOU
WILL NOT, DIRECTLY OR INDIRECTLY:
(1) SOLICIT, INDUCE, RECRUIT, OR CAUSE A
RESTRICTED EMPLOYEE TO RESIGN EMPLOYMENT WITH THE COMPANY OR ITS AFFILIATES, OR
(2) PARTICIPATE IN MAKING HIRING DECISIONS, ENCOURAGE THE HIRING OF, OR AID IN
THE HIRING PROCESS OF A RESTRICTED EMPLOYEE ON BEHALF OF ANY EMPLOYER OTHER THAN
THE COMPANY AND ITS AFFILIATES.
AS USED HEREIN, "RESTRICTED EMPLOYEE" MEANS ANY
EMPLOYEE OF THE COMPANY OR ITS AFFILIATES WITH WHOM YOU HAD MATERIAL
BUSINESS-RELATED CONTACT WHILE PERFORMING SERVICES UNDER THIS AGREEMENT, AND WHO
IS:
(1) A MEMBER OF EXECUTIVE MANAGEMENT; (2) A CORPORATE OFFICER OF THE
COMPANY OR ANY OF ITS AFFILIATES; OR (3) ANY EMPLOYEE OF THE COMPANY OR ANY OF
ITS AFFILIATES ENGAGED IN PRODUCT OR SERVICE DEVELOPMENT OR PRODUCT OR SERVICE
MANAGEMENT.
(C)
EFFECT OF BREACH.
THE OBLIGATION OF THE COMPANY TO CONTINUE TO
FULFILL ITS PAYMENT AND BENEFIT OBLIGATIONS TO YOU PURSUANT TO SECTIONS 6(B),
6(C) AND 6(D) IS CONDITIONED UPON YOUR COMPLIANCE WITH THE PROVISIONS OF THIS
SECTION 9 AND SECTIONS 7 AND 8.
ACCORDINGLY, IN THE EVENT THAT YOU SHALL
MATERIALLY BREACH THE PROVISIONS OF THIS SECTION 9 AND/OR SECTIONS 7 AND/OR 8
AND NOT CURE OR CEASE (AS APPROPRIATE) SUCH MATERIAL BREACH WITHIN TEN (10) DAYS
OF RECEIPT OF NOTICE THEREOF FROM THE COMPANY, THE COMPANY'S OBLIGATIONS UNDER
SECTIONS 6(B), 6(C) AND 6(D) SHALL TERMINATE.
TERMINATION OF THE COMPANY'S
OBLIGATIONS UNDER SECTIONS 6(B), 6(C) AND 6(D) SHALL NOT BE THE COMPANY'S SOLE
AND EXCLUSIVE REMEDY FOR A BREACH OF THIS SECTION 9 AND/OR SECTIONS 7 AND/OR 8.
IN ADDITION TO THE REMEDY PROVIDED IN THIS SECTION 9(C), THE COMPANY SHALL BE
ENTITLED TO SEEK DAMAGES AND INJUNCTIVE RELIEF TO ENFORCE THIS SECTION 9 AND
SECTIONS 7 AND 8, IN THE EVENT OF A BREACH BY YOU OF THIS SECTION 9 AND/OR
SECTIONS 7 AND/OR 8.
ADDITIONALLY, IN THE EVENT YOU MATERIALLY BREACH SUCH
PROVISIONS, YOU SHALL BE REQUIRED TO REPAY TO THE COMPANY ALL SUCH AMOUNTS PAID
PURSUANT TO SECTIONS 6(B), 6(C) AND 6(D) THAT YOU WOULD NOT HAVE RECEIVED HAD
SUCH AMOUNT NOT BEEN PAID AND YOU BREACHED SUCH PROVISIONS.
10.
REMEDIES.
(A)
THE PARTIES HERETO AGREE THAT THE SERVICES TO BE RENDERED BY YOU
PURSUANT TO THIS AGREEMENT, AND THE RIGHTS AND PRIVILEGES GRANTED TO THE COMPANY
PURSUANT TO THIS AGREEMENT, ARE OF A SPECIAL, UNIQUE, EXTRAORDINARY AND
INTELLECTUAL CHARACTER, WHICH GIVES THEM A PECULIAR VALUE; THE LOSS OF WHICH
CANNOT BE REASONABLY OR ADEQUATELY COMPENSATED IN DAMAGES IN ANY ACTION AT LAW,
AND THAT A BREACH BY YOU OF ANY OF THE TERMS OF THIS AGREEMENT WILL CAUSE THE
COMPANY GREAT AND IRREPARABLE INJURY AND DAMAGE.
YOU HEREBY AGREE THAT THE
DEFINITION OF THE BUSINESS OF THE COMPANY SET FORTH IN