(6) MONTHS, RATHER THAN TWELVE (12) MONTHS, FOLLOWING THE
EXPIRATION OF THE TERM.
IF EXECUTIVE REMAINS EMPLOYED BY THE COMPANY AT THE
EXPIRATION OF THE TERM, (I) THE COMPANY WILL PAY EXECUTIVE, WITHIN TEN
(10) BUSINESS DAYS, A LUMP SUM CASH AMOUNT EQUAL TO (1) EIGHTEEN (18) MONTHS' OF
EXECUTIVE'S BASE SALARY PLUS (2) AN AMOUNT EQUAL TO THE ANNUAL BONUS OF THE
EXECUTIVE FOR THE IMMEDIATELY PRIOR FISCAL YEAR OF THE COMPANY, AND (II) ALL
OPTIONS AND SHARES OF RESTRICTED STOCK PREVIOUSLY GRANTED TO EXECUTIVE SHALL
FULLY VEST AND ALL SUCH OUTSTANDING OPTIONS SHALL REMAIN EXERCISABLE FOR THEIR
ORIGINALLY SCHEDULED RESPECTIVE TERMS (OTHER THAN INCENTIVE STOCK OPTIONS
GRANTED TO EXECUTIVE PRIOR TO THE DATE HEREOF THAT DO NOT PROVIDE FOR SUCH
CONTINUED EXERCISABILITY IN ACCORDANCE WITH THEIR TERMS).
8.
ENFORCEMENT.
EXECUTIVE ACKNOWLEDGES AND AGREES THAT:
(I) THE
PURPOSE OF THE COVENANTS SET FORTH IN SECTIONS 5 THROUGH 7 ABOVE (THE
"RESTRICTIVE COVENANTS") IS TO PROTECT THE GOODWILL, TRADE SECRETS AND OTHER
CONFIDENTIAL INFORMATION OF THE COMPANY; (II) BECAUSE OF THE NATURE OF THE
BUSINESS IN WHICH THE COMPANY IS ENGAGED AND BECAUSE OF THE NATURE OF THE
CONFIDENTIAL INFORMATION TO WHICH EXECUTIVE HAS ACCESS, IT WOULD BE IMPRACTICAL
AND EXCESSIVELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES OF THE COMPANY IN THE
EVENT EXECUTIVE BREACHED ANY SUCH COVENANTS; AND (III) REMEDIES AT LAW (SUCH AS
MONETARY DAMAGES) FOR ANY BREACH OF EXECUTIVE'S OBLIGATIONS UNDER THE
RESTRICTIVE COVENANTS WOULD BE INADEQUATE.
EXECUTIVE THEREFORE AGREES AND
CONSENTS THAT IF EXECUTIVE COMMITS ANY BREACH OF A RESTRICTIVE COVENANT, THE
COMPANY SHALL HAVE THE RIGHT (IN ADDITION TO, AND NOT IN LIEU OF, ANY OTHER
RIGHT OR REMEDY THAT MAY BE AVAILABLE TO IT) TO TEMPORARY AND PERMANENT
INJUNCTIVE RELIEF FROM A COURT OF COMPETENT JURISDICTION, WITHOUT POSTING ANY
BOND OR OTHER SECURITY AND WITHOUT THE NECESSITY OF PROOF OF ACTUAL DAMAGE.
IF
ANY PORTION OF THE RESTRICTIVE COVENANTS IS HEREAFTER DETERMINED TO BE INVALID
OR UNENFORCEABLE IN ANY RESPECT, SUCH DETERMINATION SHALL NOT AFFECT THE
REMAINDER THEREOF, WHICH SHALL BE GIVEN THE MAXIMUM EFFECT POSSIBLE AND SHALL BE
FULLY ENFORCED, WITHOUT REGARD TO THE INVALID PORTIONS.
IN PARTICULAR, WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, IF THE COVENANTS SET FORTH IN
SECTION 7 ARE FOUND BY A COURT OR AN ARBITRATOR TO BE UNREASONABLE, EXECUTIVE
AND THE COMPANY AGREE THAT THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL AREA THAT
IS FOUND TO BE
9
REASONABLE SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA, AND THAT
THE COURT OR ARBITRATOR SHALL REVISE THE RESTRICTIONS CONTAINED HEREIN TO COVER
THE MAXIMUM PERIOD, SCOPE AND AREA PERMITTED BY LAW.
IF ANY OF THE RESTRICTIVE
COVENANTS ARE DETERMINED TO BE WHOLLY OR PARTIALLY UNENFORCEABLE IN ANY
JURISDICTION, SUCH DETERMINATION SHALL NOT BE A BAR TO OR IN ANY WAY DIMINISH
THE COMPANY'S RIGHT TO ENFORCE ANY SUCH COVENANT IN ANY OTHER JURISDICTION.
9.
INDEMNIFICATION.
(A)
THE COMPANY AGREES THAT IF EXECUTIVE IS MADE A PARTY TO, IS
THREATENED TO BE MADE A PARTY TO, RECEIVES