(1) YEAR FOLLOWING THE TERMINATION
DATE (AS DEFINED BELOW), THE EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY,
INDIVIDUALLY OR ACTING AS AN EMPLOYEE, OWNER, PARTNER, INVESTOR, OFFICER,
DIRECTOR, INDEPENDENT CONTRACTOR, SUPPLIER, CONSULTANT, PRINCIPAL, AGENT OR
OTHERWISE OF ANY PERSON:
(I)
RECRUIT, SOLICIT OR INDUCE, OR ATTEMPT TO INDUCE, ANY
EMPLOYEE OR CONSULTANT OF THE COMPANY, OR ANYONE WHO WAS AN EMPLOYEE OR
CONSULTANT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE TERMINATION DATE, TO
TERMINATE THEIR EMPLOYMENT WITH, OR OTHERWISE CEASE THEIR RELATIONSHIP WITH, THE
COMPANY OR ANY OF ITS AFFILIATES, PROVIDED THAT THIS PARAGRAPH SHALL NOT APPLY
IN THE CASE THAT ANY EMPLOYEE OR CONSULTANT OF THE COMPANY RESPONDED TO A
GENERAL ADVERTISEMENT OR BECAME AFFILIATED WITH EMPLOYEE THROUGH OTHER MEANS NOT
WITHIN EMPLOYEE'S CONTROL;
(II)
SOLICIT, DIVERT OR TAKE AWAY, OR ATTEMPT TO DIVERT OR TO TAKE
AWAY ANY OF THE CLIENTS, CUSTOMERS OR ACCOUNTS, OR CREDITORS OR SUPPLIERS, OF
THE COMPANY WHO HAVE DONE BUSINESS WITH THE COMPANY OR ITS AFFILIATES DURING THE
TWENTY-FOUR (24) MONTH PERIOD PRIOR TO THE TERMINATION DATE.
6.4.
ENFORCEMENT.
THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT THE
PROVISIONS OF THIS AGREEMENT, INCLUDING SECTION 6, ARE REASONABLE AND NECESSARY
FOR THE SUCCESSFUL OPERATION OF THE COMPANY. THE EMPLOYEE FURTHER ACKNOWLEDGES
THAT IF THE EMPLOYEE BREACHES ANY PROVISION OF THIS AGREEMENT, INCLUDING SECTION
6, THE COMPANY WILL SUFFER IRREPARABLE INJURY. IT IS THEREFORE AGREED THAT THE
COMPANY SHALL HAVE THE RIGHT TO ENJOIN ANY SUCH BREACH OR THREATENED BREACH,
WITHOUT POSTING ANY BOND, IF ORDERED BY A COURT OF COMPETENT JURISDICTION. THE
EXISTENCE OF THIS RIGHT TO INJUNCTIVE AND OTHER EQUITABLE RELIEF SHALL NOT LIMIT
ANY OTHER RIGHTS OR REMEDIES THAT THE COMPANY MAY HAVE AT LAW OR IN EQUITY
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO MONETARY, COMPENSATORY AND PUNITIVE
DAMAGES. IF ANY PROVISION OF THIS AGREEMENT IS DETERMINED BY A COURT OF
COMPETENT JURISDICTION TO BE NOT ENFORCEABLE IN THE MANNER SET FORTH HEREIN, THE
EMPLOYEE AND THE COMPANY AGREE THAT IT IS THE INTENTION OF THE PARTIES THAT SUCH
PROVISION SHOULD BE ENFORCEABLE TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE
LAW.
6
7.
METHOD OF TERMINATION.
7.1.
NOTICE OF TERMINATION.
EMPLOYEE AND THE COMPANY SHALL DELIVER A
NOTICE OF TERMINATION IF EITHER WISHES TO EFFECT A TERMINATION OF EMPLOYEE'S
EMPLOYMENT.
FOR PURPOSES OF THIS AGREEMENT, A "NOTICE OF TERMINATION" MEANS A
WRITTEN NOTICE THAT INDICATES THE SPECIFIC TERMINATION PROVISION IN THIS
AGREEMENT, IF ANY, RELIED UPON AND SHALL SET FORTH A BRIEF DESCRIPTION OF THE
FACTS AND CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR TERMINATION OF EMPLOYEE'S
EMPLOYMENT UNDER THE PROVISION SO INDICATED.
ANY TERMINATION BY THE COMPANY OR
BY EMPLOYEE OF EMPLOYEE'S EMPLOYMENT SHALL BE COMMUNICATED BY WRITTEN NOTICE OF
TERMINATION TO THE OTHER.
FOR PURPOSES OF THIS AGREEMENT, NO TERMINATION OF
EMPLOYMENT SHALL BE EFFECTIVE WITHOUT SUCH NOTICE OF TERMINATION.
7.2.
TERMINATION DATE.
FOR PURPOSES OF THIS AGREEMENT, "TERMINATION
DATE" MEANS IN THE CASE OF EMPLOYEE'S DEATH, HIS DATE OF DEATH, OR IN ALL OTHER
CASES, THE DATE SPECIFIED IN