EQUITY SECURITIES OF ANY COMPANY ENGAGED IN THE
BUSINESS (SO LONG AS THE EXECUTIVE HAS NO POWER TO MANAGE, OPERATE, ADVISE,
CONSULT WITH OR CONTROL THE COMPETING ENTERPRISE AND NO POWER, ALONE OR IN
CONJUNCTION WITH OTHER AFFILIATED PARTIES, TO SELECT A DIRECTOR, MANAGER,
GENERAL PARTNER, OR SIMILAR GOVERNING OFFICIAL OF THE COMPETING ENTERPRISE OTHER
THAN IN CONNECTION WITH THE NORMAL AND CUSTOMARY VOTING POWERS AFFORDED THE
EXECUTIVE IN CONNECTION WITH ANY PERMISSIBLE EQUITY OWNERSHIP).
6
6.4
PROPERTY.
THE EXECUTIVE ACKNOWLEDGES THAT ALL ORIGINALS AND
COPIES OF MATERIALS, RECORDS AND DOCUMENTS GENERATED BY HIM OR COMING INTO HIS
POSSESSION DURING HIS EMPLOYMENT BY THE COMPANY OR ITS SUBSIDIARIES ARE THE SOLE
PROPERTY OF THE COMPANY AND ITS SUBSIDIARIES ("COMPANY PROPERTY").
DURING THE
TERM, AND AT ALL TIMES THEREAFTER, THE EXECUTIVE SHALL NOT REMOVE, OR CAUSE TO
BE REMOVED, FROM THE PREMISES OF THE COMPANY OR ITS SUBSIDIARIES, COPIES OF ANY
RECORD, FILE, MEMORANDUM, DOCUMENT, COMPUTER RELATED INFORMATION OR EQUIPMENT,
OR ANY OTHER ITEM RELATING TO THE BUSINESS OF THE COMPANY OR ITS SUBSIDIARIES,
EXCEPT IN FURTHERANCE OF HIS DUTIES UNDER THIS AGREEMENT.
WHEN THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY TERMINATES, OR UPON REQUEST OF THE COMPANY AT ANY
TIME, THE EXECUTIVE SHALL PROMPTLY DELIVER TO THE COMPANY ALL COPIES OF COMPANY
PROPERTY IN HIS POSSESSION OR CONTROL.
7.
NONDISPARAGEMENT.
THE EXECUTIVE AGREES THAT HE WILL NOT AT ANY
TIME (WHETHER DURING OR AFTER THE TERM) PUBLISH OR COMMUNICATE TO ANY PERSON OR
ENTITY ANY DISPARAGING (AS DEFINED BELOW) REMARKS, COMMENTS OR STATEMENTS
CONCERNING THE COMPANY, CERBERUS CAPITAL MANAGEMENT, L.P., THEIR PARENTS,
SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE PRESENT AND FORMER MEMBERS,
PARTNERS, DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS,
SUCCESSORS AND ASSIGNS.
"DISPARAGING" REMARKS, COMMENTS OR STATEMENTS ARE THOSE
THAT IMPUGN THE CHARACTER, HONESTY, INTEGRITY OR MORALITY OR BUSINESS ACUMEN OR
ABILITIES IN CONNECTION WITH ANY ASPECT OF THE OPERATION OF BUSINESS OF THE
INDIVIDUAL OR ENTITY BEING DISPARAGED.
8.
REMEDIES; SPECIFIC PERFORMANCE.
THE PARTIES ACKNOWLEDGE AND
AGREE THAT THE EXECUTIVE'S BREACH OR THREATENED BREACH OF ANY OF THE
RESTRICTIONS SET FORTH IN SECTION 6 AND SECTION 7 WILL RESULT IN IRREPARABLE AND
CONTINUING DAMAGE TO THE PROTECTED PARTIES FOR WHICH THERE MAY BE NO ADEQUATE
REMEDY AT LAW AND THAT THE PROTECTED PARTIES SHALL BE ENTITLED TO EQUITABLE
RELIEF, INCLUDING SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF AS REMEDIES FOR ANY
SUCH BREACH OR THREATENED OR ATTEMPTED BREACH WITHOUT THE NECESSITY OF THE
POSTING OF A BOND OR SURETY THEREFOR.
THE EXECUTIVE HEREBY CONSENTS TO THE
GRANTING OF EQUITABLE RELIEF, INCLUDING BUT LIMITED TO THE GRANTING OF
INJUNCTIVE RELIEF (TEMPORARY OR OTHERWISE) AGAINST THE EXECUTIVE OR THE ENTRY OF
ANY OTHER COURT ORDER AGAINST THE EXECUTIVE PROHIBITING AND ENJOINING HIM FROM
VIOLATING, OR DIRECTING HIM TO COMPLY WITH ANY PROVISION OF SECTION 6 OR
SECTION 7.
THE EXECUTIVE ALSO AGREES THAT SUCH REMEDIES SHALL BE IN ADDITION TO
ANY AND ALL REMEDIES, INCLUDING DAMAGES, AVAILABLE TO THE PROTECTED PARTIES
AGAINST HIM FOR SUCH BREACHES OR THREATENED OR ATTEMPTED BREACHES.
IN ADDITION,