8.
ENFORCEMENT.
IF, AT THE TIME OF ENFORCEMENT OF PARAGRAPH 5, 6 OR
7 OF THIS AGREEMENT, A COURT HOLDS THAT THE RESTRICTIONS STATED HEREIN ARE
UNREASONABLE UNDER CIRCUMSTANCES THEN EXISTING, THE PARTIES HERETO AGREE THAT
THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL AREA REASONABLE UNDER SUCH
6
CIRCUMSTANCES SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA AND THAT
THE COURT SHALL BE ALLOWED TO REVISE THE RESTRICTIONS CONTAINED HEREIN TO COVER
THE MAXIMUM PERIOD, SCOPE AND AREA PERMITTED BY LAW.
BECAUSE EXECUTIVE'S
SERVICES ARE UNIQUE AND BECAUSE EXECUTIVE HAS ACCESS TO CONFIDENTIAL INFORMATION
AND WORK PRODUCT, THE PARTIES HERETO AGREE THAT THE COMPANY COULD SUFFER
IRREPARABLE HARM FROM A BREACH OF PARAGRAPH 5, 6 OR 7 BY EXECUTIVE AND THAT
MONEY DAMAGES WOULD NOT BE AN ADEQUATE REMEDY FOR ANY SUCH BREACH OF THIS
AGREEMENT.
THEREFORE, IN THE EVENT A BREACH OR THREATENED BREACH OF THIS
AGREEMENT, THE COMPANY OR ITS SUCCESSORS OR ASSIGNS, IN ADDITION TO OTHER RIGHTS
AND REMEDIES EXISTING IN THEIR FAVOR, SHALL BE ENTITLED TO SPECIFIC PERFORMANCE
AND/OR INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM A COURT OF COMPETENT
JURISDICTION IN ORDER TO ENFORCE, OR PREVENT ANY VIOLATIONS OF, THE PROVISIONS
HEREOF.
9.
EXECUTIVE'S REPRESENTATIONS.
(A)
EXECUTIVE ACKNOWLEDGES THAT THE PROVISIONS OF PARAGRAPHS 5, 6 AND
7 ARE IN CONSIDERATION OF HIS EMPLOYMENT WITH THE COMPANY AND ADDITIONAL GOOD
AND VALUABLE CONSIDERATION SET FORTH IN THIS AGREEMENT.
IN ADDITION, EXECUTIVE
AGREES AND ACKNOWLEDGES THAT THE RESTRICTIONS CONTAINED IN PARAGRAPHS 5, 6 AND 7
DO NOT PRECLUDE EXECUTIVE FROM EARNING A LIVELIHOOD, NOR DO THEY UNREASONABLY
IMPOSE LIMITATIONS ON EXECUTIVE'S ABILITY TO EARN A LIVING.
IN ADDITION,
EXECUTIVE ACKNOWLEDGES (A) THAT THE BUSINESS OF THE COMPANY AND ITS SUBSIDIARIES
WILL INCLUDE ALL OF NORTH AMERICA, (B) NOTWITHSTANDING THE STATE OF
INCORPORATION OR PRINCIPAL OFFICE OF THE COMPANY OR ITS SUBSIDIARIES, OR ANY OF
THEIR RESPECTIVE EXECUTIVES OR EMPLOYEES (INCLUDING EXECUTIVE), IT IS EXPECTED
THAT THE COMPANY WILL HAVE BUSINESS ACTIVITIES AND HAVE VALUABLE BUSINESS
RELATIONSHIPS WITHIN ITS INDUSTRY THROUGHOUT NORTH AMERICA, AND (C) AS PART OF
HIS RESPONSIBILITIES, EXECUTIVE MAY TRAVEL AROUND NORTH AMERICA IN FURTHERANCE
OF THE COMPANY'S BUSINESS AND ITS RELATIONSHIPS.
(B)
EXECUTIVE HEREBY REPRESENTS AND WARRANTS TO THE COMPANY AND PARENT
THAT (I) THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT BY EXECUTIVE
DO NOT AND SHALL NOT CONFLICT WITH, BREACH, VIOLATE OR CAUSE A DEFAULT UNDER ANY
CONTRACT, AGREEMENT, INSTRUMENT, ORDER, JUDGMENT OR DECREE TO WHICH EXECUTIVE IS
A PARTY OR BY WHICH HE IS BOUND, (II) EXCEPT FOR THE EXISTING AGREEMENTS (WHICH
SHALL BE DEEMED TO BE SUPERCEDED AND PREEMPTED EFFECTIVE AS OF THE EFFECTIVE
DATE; PROVIDED THAT EXECUTIVE IS NOT WAIVING HIS RIGHT TO RECEIVE THE BONUS
AMOUNTS CONTEMPLATED BY THAT CERTAIN BONUS AGREEMENT DATED AS OF MAY 31, 2006
BETWEEN EXECUTIVE AND THE COMPANY, WHICH ARE TO BE PAID BY THE COMPANY TO
EXECUTIVE UPON THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THE MERGER
AGREEMENT), EXECUTIVE IS NOT A PARTY TO OR BOUND BY ANY EMPLOYMENT AGREEMENT,
NONCOMPETE