BY APPLICABLE LAW, (A) CHARACTERIZE ANY NON-PRINCIPAL PAYMENT
AS AN EXPENSE, FEE, OR PREMIUM RATHER THAN AS INTEREST, (B) EXCLUDE VOLUNTARY
PREPAYMENTS AND THE EFFECTS THEREOF, AND (C) AMORTIZE, PRORATE, ALLOCATE, AND
SPREAD IN EQUAL OR UNEQUAL PARTS THE TOTAL AMOUNT OF INTEREST THROUGHOUT THE
ENTIRE CONTEMPLATED TERM OF THE INDEBTEDNESS EVIDENCED BY THIS AGREEMENT SO THAT
THE INTEREST FOR THE ENTIRE TERM DOES NOT EXCEED THE HIGHEST LAWFUL RATE.
6.
NO MITIGATION OBLIGATION:
THE COMPANY HEREBY ACKNOWLEDGES THAT
IT WILL BE DIFFICULT, AND MAY BE IMPOSSIBLE, FOR THE EXECUTIVE TO FIND
REASONABLY COMPARABLE EMPLOYMENT
14
FOLLOWING THE TERMINATION DATE AND THAT THE NONCOMPETITION COVENANT CONTAINED IN
SECTION 7 HEREOF WILL FURTHER LIMIT THE EMPLOYMENT OPPORTUNITIES FOR THE
EXECUTIVE.
ACCORDINGLY, THE PARTIES HERETO EXPRESSLY AGREE THAT THE PAYMENT OF
THE SEVERANCE COMPENSATION AND BENEFITS BY THE COMPANY TO THE EXECUTIVE IN
ACCORDANCE WITH THE TERMS OF THIS AGREEMENT WILL BE LIQUIDATED DAMAGES, AND THAT
THE EXECUTIVE SHALL NOT BE REQUIRED TO MITIGATE THE AMOUNT OF ANY PAYMENT
PROVIDED FOR IN THIS AGREEMENT BY SEEKING OTHER EMPLOYMENT OR OTHERWISE, NOR
SHALL ANY PROFITS, INCOME, EARNINGS OR OTHER BENEFITS FROM ANY SOURCE WHATSOEVER
CREATE ANY MITIGATION, OFFSET, REDUCTION OR ANY OTHER OBLIGATION ON THE PART OF
THE EXECUTIVE HEREUNDER OR OTHERWISE, EXCEPT AS EXPRESSLY PROVIDED IN
SUBSECTION 5(A)(II) HEREOF.
7.
COMPETITIVE ACTIVITY:
DURING A PERIOD ENDING ONE YEAR FOLLOWING
THE TERMINATION DATE (OR, IF LESS, A PERIOD EQUAL TO THE REMAINING PERIOD OF
EMPLOYMENT AND BEGINNING ON THE TERMINATION DATE), IF THE EXECUTIVE SHALL HAVE
RECEIVED OR SHALL BE RECEIVING BENEFITS UNDER SUBSECTION 5(A) HEREOF, THE
EXECUTIVE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT BY THE COMPANY, DIRECTLY
OR INDIRECTLY ENGAGE IN ANY "COMPETITIVE BUSINESS" (AS HEREINAFTER DEFINED)
WITHIN ANY METROPOLITAN AREA SERVED BY THE COMPANY DURING THE TWELVE (12)-MONTH
PERIOD IMMEDIATELY PRECEDING TERMINATION OF THE EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY NOR WILL THE EXECUTIVE ENGAGE, WITHIN SUCH GEOGRAPHICAL AREA(S), IN THE
DESIGN, DEVELOPMENT, DISTRIBUTION, MANUFACTURE, ASSEMBLY OR SALE OF A PRODUCT OR
SERVICE IN COMPETITION WITH ANY PRODUCT OR SERVICE MARKETED OR PLANNED BY THE
COMPANY IMMEDIATELY PRIOR TO THE TERMINATION DATE, THE PLANS, DESIGNS OR
SPECIFICATIONS OF WHICH HAVE BEEN REVEALED TO THE EXECUTIVE ("COMPETITIVE
ACTIVITY").
THE EXECUTIVE ACKNOWLEDGES THAT THESE LIMITED PROHIBITIONS ARE
REASONABLE AS TO TIME, GEOGRAPHICAL AREA AND SCOPE OF ACTIVITIES TO BE
RESTRAINED AND THAT THE LIMITED PROHIBITIONS DO NOT IMPOSE A GREATER RESTRAINT
THAN IS NECESSARY TO PROTECT THE COMPANY'S GOODWILL, PROPRIETARY INFORMATION AND
OTHER BUSINESS INTERESTS.
"COMPETITIVE ACTIVITY" SHALL NOT INCLUDE (I) THE MERE
OWNERSHIP OF A DE MINIMIS AMOUNT OF SECURITIES IN ANY SUCH ENTERPRISE AND
EXERCISE OF RIGHTS APPURTENANT THERETO OR (II) PARTICIPATION IN MANAGEMENT OF
ANY SUCH ENTERPRISE OR BUSINESS OPERATION THEREOF OTHER THAN IN CONNECTION WITH
THE COMPETITIVE OPERATION OF SUCH ENTERPRISE.
FOR PURPOSES OF THIS SECTION 7,
THE TERM "COMPETITIVE BUSINESS" MEANS ANY PERSON OR ENTITY ENGAGED IN A BUSINESS
THAT PRODUCES ANY OF THE FOLLOWING PRODUCTS OR PERFORMS ANY OF THE FOLLOWING
SERVICES: GENERAL COMMERCIAL PRINTING SERVICES,