CONTAINED IN THIS SECTION 1.
EXECUTIVE
WAIVES POSTING BY THE COMPANY OF ANY BOND OTHERWISE NECESSARY TO SECURE SUCH
INJUNCTION OR OTHER EQUITABLE RELIEF.
RIGHTS AND REMEDIES PROVIDED FOR IN THIS
SECTION 1 ARE CUMULATIVE AND SHALL BE IN ADDITION TO RIGHTS AND REMEDIES
OTHERWISE AVAILABLE TO THE PARTIES HEREUNDER OR UNDER ANY OTHER AGREEMENT OR
APPLICABLE LAW.
(H)
ACKNOWLEDGMENT.
EXECUTIVE UNDERSTANDS THAT THE PROVISIONS OF THIS
SECTION 1 MAY LIMIT HIS ABILITY TO EARN A LIVELIHOOD IN A BUSINESS THAT COMPETES
WITH THE BUSINESS OF THE COMPANY BUT NEVERTHELESS AGREES AND HEREBY ACKNOWLEDGES
THAT THE
3
CONSIDERATION PROVIDED TO EXECUTIVE THROUGH HIS EMPLOYMENT AND THE GRANT OF
STOCK OPTIONS ON THE DATE HEREOF IS SUFFICIENT TO JUSTIFY THE RESTRICTIONS
CONTAINED IN SUCH PROVISIONS.
IN CONSIDERATION THEREOF AND IN LIGHT OF
EXECUTIVE'S EDUCATION, SKILLS AND ABILITIES, EXECUTIVE AGREES THAT HE WILL NOT
ASSERT IN ANY FORUM THAT SUCH PROVISIONS PREVENT HIM FROM EARNING A LIVING OR
OTHERWISE ARE VOID OR UNENFORCEABLE OR SHOULD BE HELD VOID OR UNENFORCEABLE.
2.
ASSIGNMENT AND TRANSFER. THIS AGREEMENT SHALL INURE TO THE
BENEFIT OF AND BE ENFORCEABLE BY, AND SHALL BE ASSIGNABLE BY THE COMPANY WITHOUT
EXECUTIVE'S PRIOR WRITTEN CONSENT TO ANY PURCHASER OF ALL OR SUBSTANTIALLY ALL
OF THE COMPANY'S BUSINESS OR ASSETS, ANY SUCCESSOR TO THE COMPANY OR ANY
ASSIGNEE THEREOF (WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION
OR OTHERWISE).
IN ADDITION, THE COMPANY MAY ASSIGN THIS AGREEMENT WITHOUT
EXECUTIVE'S PRIOR CONSENT TO ANY PURCHASER OF ASSETS OF THE COMPANY RELATING TO
BUSINESSES OF THE COMPANY IN WHICH EXECUTIVE WAS INVOLVED DURING HIS EMPLOYMENT
BY THE COMPANY.
IN THE EVENT OF ANY ASSIGNMENT PURSUANT TO THIS AGREEMENT, THIS
AGREEMENT SHALL BE BINDING ON SUCH ASSIGNEE.
3.
MISCELLANEOUS.
(A)
NONDISCLOSURE; OTHER EMPLOYERS.
EXECUTIVE WILL NOT DISCLOSE TO
THE COMPANY, USE, OR INDUCE THE COMPANY TO USE, ANY PROPRIETARY INFORMATION,
TRADE SECRETS OR CONFIDENTIAL BUSINESS INFORMATION OF OTHERS.
EXECUTIVE
REPRESENTS AND WARRANTS THAT EXECUTIVE DOES NOT POSSESS ANY PROPERTY,
PROPRIETARY INFORMATION, TRADE SECRETS AND CONFIDENTIAL BUSINESS INFORMATION
BELONGING TO ANY PRIOR EMPLOYERS.
(B)
GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED (BOTH AS TO VALIDITY AND PERFORMANCE) AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH JURISDICTION, WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW OR WHERE THE PARTIES ARE LOCATED AT
THE TIME A DISPUTE ARISES.
ANY ACTION TO ENFORCE THIS AGREEMENT MUST BE BROUGHT
IN A COURT SITUATED IN THE CITY OF NEW YORK AND THE PARTIES HEREBY CONSENT TO
THE JURISDICTION OF COURTS SITUATED IN THE STATE OF NEW YORK.
EACH PARTY HEREBY
WAIVES THE RIGHT TO CLAIM THAT ANY SUCH COURT IS AN INCONVENIENT FORUM FOR THE
RESOLUTION OF ANY SUCH ACTION.
(C)
ENTIRE AGREEMENT.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT
AND UNDERSTANDING BETWEEN THE PARTIES RELATING TO MATTERS SET FORTH HEREIN AND
SUPERSEDES, CANCELS AND ANNULS ANY PRIOR OR CONTEMPORANEOUS WRITTEN OR ORAL
AGREEMENTS, UNDERSTANDINGS,