of the outstanding voting
securities of such enterprise, provided that such permitted activity shall not
relieve the Executive from any other provisions of this Agreement.
5.3.2
REASONABLENESS.
IT IS AGREED BY THE PARTIES THAT
THE FOREGOING COVENANTS IN THIS SECTION 5.3 IMPOSE A REASONABLE RESTRAINT ON
EXECUTIVE IN LIGHT OF THE ACTIVITIES AND BUSINESS OF THE WELLCARE COMPANIES ON
THE DATE OF THE EXECUTION OF THIS AGREEMENT AND THE CURRENT PLANS OF THE
WELLCARE COMPANIES.
EXECUTIVE ACKNOWLEDGES THAT THE COVENANTS IN THIS
SECTION 5.3 SHALL NOT PREVENT EXECUTIVE FROM EARNING A LIVELIHOOD UPON THE
TERMINATION OF EMPLOYMENT HEREUNDER, BUT MERELY PREVENTS UNFAIR COMPETITION WITH
THE WELLCARE COMPANIES FOR A LIMITED PERIOD OF TIME.
5.3.3
SEVERABILITY.
THE COVENANTS IN THIS SECTION 5.3
ARE SEVERABLE AND SEPARATE, AND THE UNENFORCEABILITY OF ANY SPECIFIC COVENANT
SHALL NOT AFFECT THE PROVISIONS OF ANY OTHER COVENANT.
IN THE EVENT ANY COURT
OF COMPETENT JURISDICTION SHALL DETERMINE THAT THE SCOPE, TIME OR TERRITORIAL
RESTRICTIONS SET FORTH HEREIN ARE UNREASONABLE, THEN IT IS THE INTENTION OF THE
PARTIES THAT SUCH RESTRICTIONS BE ENFORCED TO THE FULLEST EXTENT THAT SUCH COURT
DEEMS REASONABLE, AND THIS AGREEMENT SHALL THEREBY BE REFORMED.
5.3.4
ENFORCEMENT BY THE CORPORATION NOT LIMITED.
ALL OF
THE COVENANTS IN THIS SECTION 5.3 SHALL BE CONSTRUED AS AN AGREEMENT INDEPENDENT
OF ANY OTHER PROVISION IN THIS AGREEMENT, AND THE EXISTENCE OF ANY CLAIM OR
CAUSE OF ACTION OF EXECUTIVE AGAINST ANY WELLCARE COMPANY, WHETHER PREDICATED IN
THIS AGREEMENT OR OTHERWISE, SHALL NOT CONSTITUTE A DEFENSE TO THE ENFORCEMENT
BY THE CORPORATION OR WELLCARE OF SUCH COVENANTS.
5.4
BREACH OF RESTRICTIVE COVENANTS.
THE
PARTIES AGREE THAT A BREACH OR VIOLATION OF THIS ARTICLE 5 WILL RESULT IN
IMMEDIATE AND IRREPARABLE INJURY AND HARM TO THE INNOCENT PARTY, AND THAT SUCH
INNOCENT PARTY SHALL HAVE, IN ADDITION TO ANY AND ALL REMEDIES OF LAW AND OTHER
CONSEQUENCES UNDER THIS AGREEMENT, THE RIGHT TO SEEK AN INJUNCTION, SPECIFIC
PERFORMANCE OR OTHER EQUITABLE RELIEF TO PREVENT THE VIOLATION OF THE
OBLIGATIONS HEREUNDER.
ARTICLE 6
ARBITRATION
6.1
GENERAL.
EXCEPT FOR AN ACTION FOR EQUITABLE
RELIEF THAT IS PERMITTED TO BE SOUGHT PURSUANT TO SECTION 5.4, ANY CONTROVERSY,
DISPUTE, OR CLAIM BETWEEN THE PARTIES TO THIS AGREEMENT, INCLUDING ANY CLAIM
ARISING OUT OF, IN CONNECTION WITH, OR IN RELATION TO THE FORMATION,
INTERPRETATION, PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL BE SETTLED
EXCLUSIVELY BY ARBITRATION, BEFORE A SINGLE ARBITRATOR, IN ACCORDANCE WITH THIS
ARTICLE 6 AND THE THEN MOST APPLICABLE RULES OF THE AMERICAN ARBITRATION
ASSOCIATION.
JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED
BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF.
SUCH ARBITRATION
SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION.
ARBITRATION
SHALL BE THE EXCLUSIVE REMEDY FOR DETERMINING ANY SUCH DISPUTE, REGARDLESS OF
ITS NATURE.
NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY IN AN APPROPRIATE
MATTER APPLY TO A COURT FOR PROVISIONAL RELIEF,
14
INCLUDING A TEMPORARY RESTRAINING ORDER OR A PRELIMINARY INJUNCTION, ON THE
GROUND THAT THE AWARD TO WHICH THE APPLICANT MAY BE ENTITLED