THIS
AGREEMENT AND (VI) WERE RELIED UPON BY THE COMPANY AND HDS IN CONNECTION WITH
PURSUIT OF A SALE.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT (A) YOUR BREACH OF
THE PROVISIONS OF SECTION 9 OR 10 WILL CAUSE THE COMPANY AND HDS IRREPARABLE
HARM, WHICH CANNOT BE ADEQUATELY COMPENSATED BY MONEY DAMAGES, AND (B) IF THE
COMPANY AND/OR HDS ELECTS TO PREVENT YOU FROM BREACHING SUCH PROVISIONS BY
OBTAINING AN INJUNCTION AGAINST YOU, THERE IS A REASONABLE PROBABILITY OF THE
COMPANY'S OR HDS'S EVENTUAL SUCCESS ON THE MERITS.
YOU CONSENT AND AGREE THAT,
NOTWITHSTANDING THE PROVISIONS OF SECTION 17, IF YOU COMMIT ANY SUCH BREACH OR
THREATEN TO COMMIT ANY BREACH, THE COMPANY AND HDS (AS APPLICABLE) SHALL BE
ENTITLED 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, IN ADDITION TO, AND NOT IN LIEU OF, SUCH
OTHER REMEDIES AS MAY BE AVAILABLE TO THE COMPANY AND HDS FOR SUCH BREACH,
INCLUDING THE RECOVERY OF MONEY DAMAGES. IN THE EVENT THAT ANY PROVISION OF
SECTION 9 OR 10 SHALL BE DETERMINED BY ANY COURT OF COMPETENT JURISDICTION TO BE
UNENFORCEABLE BY REASON OF SUCH PROVISION EXTENDING FOR TOO GREAT A PERIOD OF
TIME OR OVER TOO GREAT A GEOGRAPHICAL AREA OR BY REASON OF SUCH PROVISION BEING
TOO EXTENSIVE IN ANY OTHER RESPECT, SUCH PROVISION(S) SHALL BE INTERPRETED TO
EXTEND ONLY OVER THE MAXIMUM PERIOD OF TIME FOR WHICH THEY MAY BE ENFORCEABLE
AND/OR OVER THE MAXIMUM GEOGRAPHICAL AREA AS TO WHICH THEY MAY BE ENFORCEABLE
AND/OR TO THE MAXIMUM EXTENT IN ALL OTHER RESPECTS AS TO WHICH THEY MAY BE
ENFORCEABLE, ALL AS DETERMINED BY SUCH COURT IN SUCH ACTION.
(e)
You agree and understand that each of the Company and HDS, as
applicable, shall have the right to enforce the provisions of Sections 9 and 10
against you.
11.
TAX WITHHOLDING.
ANY PAYMENTS PROVIDED FOR UNDER THIS AGREEMENT
SHALL BE PAID NET OF ANY APPLICABLE WITHHOLDING TAX REQUIRED UNDER FEDERAL,
STATE OR LOCAL LAW AND ANY ADDITIONAL WITHHOLDING TAX TO WHICH YOU HAVE AGREED.
12.
CODE SECTION 409A.
THIS AGREEMENT IS INTENDED TO SATISFY THE
REQUIREMENTS OF SECTION 409A OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE "CODE"), TO THE EXTENT APPLICABLE, AND SHALL BE CONSTRUED ACCORDINGLY.
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS AGREEMENT, TO THE EXTENT THAT
YOU ARE CLASSIFIED AS A "SPECIFIED EMPLOYEE" WITHIN THE MEANING OF SECTION 409A
OF THE CODE (WITH SUCH CLASSIFICATION TO BE DETERMINED IN ACCORDANCE WITH THE
METHODOLOGY ESTABLISHED BY THE APPLICABLE EMPLOYER), CASH SEVERANCE AMOUNTS
PURSUANT TO SECTION 5(IV) THAT WOULD OTHERWISE BE PAYABLE UNDER THIS AGREEMENT
DURING THE SIX-MONTH PERIOD IMMEDIATELY FOLLOWING YOUR TERMINATION OF EMPLOYMENT
WITH THE COMPANY OR HDS (AS APPLICABLE) SHALL INSTEAD BE PAID, ON THE FIRST
BUSINESS DAY AFTER THE DATE THAT IS SIX MONTHS FOLLOWING YOUR "SEPARATION FROM
SERVICE" WITHIN THE MEANING OF SECTION 409A OF THE CODE.
IF ANY COMPENSATION
PROVIDED