IN ARBITRATION; PROVIDED, HOWEVER,
THAT THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER AND HAVE AWARDED ITS
ATTORNEYS' FEES, COURT COSTS, ARBITRATION EXPENSES, AND ITS PORTION OF THE FEES
AND COSTS CHARGED BY JAMS OR OTHER ARBITRATION ADMINISTRATOR, REGARDLESS OF
WHICH PARTY INITIATED THE PROCEEDINGS, IN ADDITION TO ANY OTHER RELIEF TO WHICH
IT MAY BE ENTITLED.
(D)
LIMITED SCOPE.
THE FOLLOWING ARE EXCLUDED
FROM BINDING ARBITRATION UNDER THIS AGREEMENT:
CLAIMS FOR WORKERS' COMPENSATION
BENEFITS OR UNEMPLOYMENT BENEFITS; REPLEVIN; AND CLAIMS FOR WHICH A BINDING
ARBITRATION AGREEMENT IS INVALID AS A MATTER OF LAW.
6.3
INJUNCTIVE RELIEF.
THE PARTIES HERETO MAY
SEEK INJUNCTIVE RELIEF IN ARBITRATION; PROVIDED, HOWEVER, THAT AS AN EXCEPTION
TO THE ARBITRATION AGREEMENT SET FORTH IN SECTION 6.2 HEREOF, THE PARTIES, IN
ADDITION TO ALL OTHER AVAILABLE REMEDIES, SHALL EACH HAVE THE RIGHT TO INITIATE
AN ACTION IN ANY COURT OF COMPETENT JURISDICTION IN ORDER TO REQUEST INJUNCTIVE
OR OTHER EQUITABLE RELIEF REGARDING THE TERMS OF SECTIONS 5 OR 6.2 HEREOF.
THE
EXCLUSIVE VENUE OF ANY SUCH PROCEEDING SHALL BE IN THE AGREED VENUE.
THE
PARTIES AGREE (A) TO SUBMIT TO THE JURISDICTION OF ANY COMPETENT COURT IN THE
AGREED VENUE, (B) TO WAIVE ANY AND ALL DEFENSES THE EXECUTIVE MAY HAVE ON THE
GROUNDS OF LACK OF JURISDICTION OF SUCH COURT AND (C) THAT NEITHER PARTY SHALL
BE REQUIRED TO POST ANY BOND, UNDERTAKING OR OTHER FINANCIAL DEPOSIT OR
GUARANTEE IN SEEKING OR OBTAINING SUCH EQUITABLE RELIEF.
EVIDENCE ADDUCED IN
ANY SUCH PROCEEDING FOR AN INJUNCTION MAY BE USED IN ARBITRATION AS WELL.
THE
EXISTENCE OF THIS RIGHT SHALL NOT PRECLUDE OR OTHERWISE LIMIT THE APPLICABILITY
OR EXERCISE OF ANY OTHER RIGHTS AND REMEDIES THAT A PARTY HERETO MAY HAVE AT LAW
OR IN EQUITY.
6.4
SETTLEMENT OF EXISTING RIGHTS.
IN EXCHANGE
FOR THE OTHER TERMS OF THIS AGREEMENT, THE EXECUTIVE ACKNOWLEDGES AND AGREES
THAT: (A) THE EXECUTIVE'S ENTRY INTO THIS AGREEMENT IS A CONDITION OF EMPLOYMENT
AND/OR CONTINUED EMPLOYMENT WITH THE COMPANY, AS APPLICABLE; (B) EXCEPT AS
OTHERWISE PROVIDED HEREIN, THIS AGREEMENT WILL REPLACE ANY EXISTING
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EMPLOYMENT AGREEMENT BETWEEN THE PARTIES AND THEREBY ACT AS A NOVATION, IF
APPLICABLE; (C) THE EXECUTIVE IS BEING PROVIDED WITH ACCESS TO CONFIDENTIAL
INFORMATION, INCLUDING, WITHOUT LIMITATION, PROPRIETARY TRADE SECRETS OF ONE OR
MORE COMPANY PARTIES, TO WHICH THE EXECUTIVE HAS NOT PREVIOUSLY HAD ACCESS;
(D) ALL COMPANY INVENTIONS AND INTELLECTUAL PROPERTY DEVELOPED BY THE EXECUTIVE
DURING ANY PAST EMPLOYMENT WITH THE COMPANY AND ALL GOODWILL DEVELOPED WITH THE
COMPANY'S CLIENTS, CUSTOMERS AND OTHER BUSINESS CONTACTS BY THE EXECUTIVE DURING
ANY PAST EMPLOYMENT WITH COMPANY, AS APPLICABLE, IS THE EXCLUSIVE PROPERTY OF
THE COMPANY; AND (E) ALL CONFIDENTIAL INFORMATION AND/OR SPECIALIZED TRAINING
ACCESSED, CREATED, RECEIVED OR UTILIZED BY THE EXECUTIVE DURING ANY PAST
EMPLOYMENT WITH COMPANY, AS APPLICABLE, WILL BE SUBJECT TO THE RESTRICTIONS ON
CONFIDENTIAL INFORMATION DESCRIBED IN THIS AGREEMENT, WHETHER PREVIOUSLY SO
AGREED OR NOT.
6.5
ENTIRE AGREEMENT; WAIVER.
THIS AGREEMENT
CONTAINS THE ENTIRE AGREEMENT BETWEEN THE EXECUTIVE AND THE COMPANY WITH RESPECT
TO THE