AND THE PARTIES HERETO AGREE THAT SUCH COURT SHALL
REDUCE THE TIME PERIOD AND/OR GEOGRAPHIC SCOPE TO PERMISSIBLE DURATION OR SIZE.
(G)
TERMINATION OF NON-COMPETITION COVENANT.
SECTION 10(B) OF THIS
AGREEMENT SHALL TERMINATE UPON A CHANGE IN CONTROL.
SECTION 11.
BREACH OF RESTRICTIVE COVENANTS.
WITHOUT LIMITING THE REMEDIES AVAILABLE TO THE COMPANY, EMPLOYEE ACKNOWLEDGES
THAT A BREACH OF ANY OF THE COVENANTS CONTAINED IN SECTION 10 HEREOF MAY RESULT
IN MATERIAL IRREPARABLE INJURY TO THE COMPANY OR ITS SUBSIDIARIES FOR WHICH
THERE IS NO ADEQUATE REMEDY AT LAW, THAT IT WILL NOT BE POSSIBLE TO MEASURE
DAMAGES FOR SUCH INJURIES PRECISELY AND THAT, IN THE EVENT OF SUCH A BREACH OR
THREAT THEREOF, THE COMPANY (OR ANY SUBSIDIARY THEREOF, AS APPLICABLE) SHALL BE
ENTITLED TO OBTAIN A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY OR
PERMANENT INJUNCTION, WITHOUT THE NECESSITY OF PROVING IRREPARABLE HARM OR
INJURY AS A RESULT OF SUCH BREACH OR THREATENED BREACH OF SECTION 10 HEREOF,
RESTRAINING EMPLOYEE FROM ENGAGING IN ACTIVITIES PROHIBITED BY SECTION 10 HEREOF
OR SUCH OTHER RELIEF AS MAY BE REQUIRED SPECIFICALLY TO ENFORCE ANY OF THE
COVENANTS IN SECTION 10 HEREOF.
NOTWITHSTANDING ANY OTHER PROVISION TO THE
CONTRARY, THE RESTRICTED PERIOD SHALL BE TOLLED DURING ANY PERIOD OF VIOLATION
OF ANY OF THE COVENANTS IN SECTION 10(B) OR 10(C) HEREOF AND DURING ANY OTHER
PERIOD REQUIRED FOR LITIGATION DURING WHICH THE
14
COMPANY SEEKS TO ENFORCE SUCH COVENANTS AGAINST EMPLOYEE OR ANOTHER PERSON WITH
WHOM EMPLOYEE IS AFFILIATED IF IT IS ULTIMATELY DETERMINED THAT EMPLOYEE WAS IN
BREACH OF SUCH COVENANTS.
SECTION 12.
REPRESENTATIONS AND WARRANTIES OF EMPLOYEE.
Employee represents and warrants to the Company that:
(A)
EMPLOYEE'S EMPLOYMENT WILL NOT CONFLICT WITH OR RESULT IN HIS
BREACH OF ANY AGREEMENT TO WHICH HE IS A PARTY OR OTHERWISE MAY BE BOUND;
(B)
EMPLOYEE HAS NOT VIOLATED, AND IN CONNECTION WITH HIS EMPLOYMENT
WITH THE COMPANY WILL NOT VIOLATE, ANY NON-SOLICITATION, NON-COMPETITION OR
OTHER SIMILAR COVENANT OR AGREEMENT OF A PRIOR EMPLOYER BY WHICH HE IS OR MAY BE
BOUND; AND
(C)
IN CONNECTION WITH EMPLOYEE'S EMPLOYMENT WITH THE COMPANY, HE WILL
NOT USE ANY CONFIDENTIAL OR PROPRIETARY INFORMATION THAT HE MAY HAVE OBTAINED IN
CONNECTION WITH EMPLOYMENT WITH ANY PRIOR EMPLOYER.
SECTION 13.
TAXES.
The Company may withhold from any payments made under this Agreement all
applicable taxes, including but not limited to income, employment and social
insurance taxes, as shall be required by law.
Employee acknowledges and
represents that the Company has not provided any tax advice to him in connection
with this Agreement and that he has been advised by the Company to seek tax
advice from his own tax advisors regarding this Agreement and payments that may
be made to him pursuant to this Agreement, including specifically, the
application of the provisions of Section 409A of the Code to such payments.
SECTION 14.
INDEMNIFICATION.
The Company covenants and agrees that, to the fullest extent permitted by
Delaware law, or the Company's Certificate of Incorporation or By-laws, it will