AGAINST
EXECUTIVE BASED UPON ANY BREACH HEREOF DURING THE RESTRICTION PERIOD OR BEFORE
SUCH STATUS OF CUSTOMER OR PERSONNEL TERMINATED.
5.9.
NONCIRCUMVENTION OF COVENANTS.
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT, FOR PURPOSES OF THIS AGREEMENT, AN ACTION SHALL BE
CONSIDERED TO HAVE BEEN TAKEN BY EXECUTIVE "INDIRECTLY" IF TAKEN BY OR THROUGH
(A) ANY MEMBER OF HIS FAMILY (BEING AN IMMEDIATE RELATION BY BLOOD, MARRIAGE OR
ADOPTION), (B) ANY PERSON OWNED OR CONTROLLED, SOLELY OR WITH OTHERS, DIRECTLY
OR "INDIRECTLY" BY EXECUTIVE OR A MEMBER OF HIS FAMILY, (C) ANY PERSON OF WHICH
HE IS AN OWNER, PARTNER, EMPLOYEE, TRUSTEE, INDEPENDENT CONTRACTOR OR AGENT,
(D) ANY EMPLOYEES, PARTNERS OWNERS OR INDEPENDENT CONTRACTORS OF ANY SUCH PERSON
OR (E) ANY OTHER ONE OR MORE REPRESENTATIVES OR INTERMEDIARIES, IT BEING THE
INTENTION OF THE PARTIES THAT EXECUTIVE SHALL NOT DIRECTLY OR INDIRECTLY
CIRCUMVENT ANY RESTRICTIVE COVENANT CONTAINED HEREIN OR THE INTENT THEREOF.
5.10.
NOTICE OF RESTRICTIONS.
DURING THE RESTRICTION
PERIOD, EMPLOYEE SHALL NOTIFY EACH PROSPECTIVE COMPANY, PARTNER OR CO-VENTURER
OF THE RESTRICTIONS CONTAINED IN THIS AGREEMENT.
COMPANY IS HEREBY AUTHORIZED
TO CONTACT ANY OF SUCH PERSONS FOR THE PURPOSE OF PROVIDING NOTICE OF SUCH
RESTRICTIONS.
5.11.
REDUCTION OF RESTRICTIONS BY COURT ACTION.
EACH OF
THE PROVISIONS HEREOF, INCLUDING, WITHOUT LIMITATION, THE PERIODS OF TIME,
GEOGRAPHIC AREAS AND TYPES AND SCOPES OF DUTIES OF, AND RESTRICTIONS ON THE
ACTIVITIES OF, THE PARTIES HERETO SPECIFIED HEREIN ARE AND ARE INTENDED TO BE
DIVISIBLE, AND IF ANY PORTION THEREOF (INCLUDING ANY SENTENCE, CLAUSE OR WORD)
SHALL BE HELD CONTRARY TO LAW OR INVALID OR UNENFORCEABLE IN ANY RESPECT IN ANY
JURISDICTION, OR AS TO ONE OR MORE PERIODS OF TIME, AREAS OR BUSINESS ACTIVITIES
OR ANY PART THEREOF, THE REMAINING PROVISIONS SHALL NOT BE AFFECTED BUT SHALL
REMAIN IN FULL FORCE AND EFFECT, AND ANY SUCH INVALID OR UNENFORCEABLE PROVISION
SHALL BE DEEMED, WITHOUT FURTHER ACTION ON THE PART OF ANY PARTY HERETO OR OTHER
PERSON, MODIFIED AND AMENDED TO THE MINIMUM EXTENT ON THE PART OF ANY PARTY
HERETO OR OTHER PERSON, MODIFIED AND AMENDED TO THE MINIMUM EXTENT NECESSARY TO
RENDER THE SAME VALID AND ENFORCEABLE IN SUCH JURISDICTION.
7
5.12.
FAIRNESS OF RESTRICTIONS.
EXECUTIVE ACKNOWLEDGES
AND AGREES THAT (A) COMPLIANCE WITH THE RESTRICTIVE COVENANTS SET FORTH HEREIN
WOULD NOT PREVENT HIM FROM EARNING A LIVING THAT INVOLVES HIS TRAINING AND
SKILLS WITHOUT RELOCATING, BUT ONLY ENGAGING IN UNFAIR COMPETITION WITH,
MISAPPROPRIATING A CORPORATE OPPORTUNITY OF, OR OTHERWISE UNFAIRLY HARMING
COMPANY AND (B) THE RESTRICTIVE COVENANTS SET FORTH HEREIN ARE INTENDED TO
PROVIDE A MINIMUM LEVEL OF PROTECTION NECESSARY TO PROTECT THE LEGITIMATE
INTERESTS ON COMPANY.
IN ADDITION, THE PARTIES ACKNOWLEDGE THAT NOTHING HEREIN
IS INTENDED TO OR SHALL LIMIT, REPLACE OR OTHERWISE AFFECT ANY OTHER RIGHTS OR
REMEDIES AT LAW OR IN EQUITY FOR PROTECTION AGAINST UNFAIR COMPETITION WITH,
MISAPPROPRIATION OF CORPORATE OPPORTUNITIES OF, DISCLOSURE OF CONFIDENTIAL AND
PROPRIETARY INFORMATION OF, OR DEFAMATION OF COMPANY, OR FOR PROTECTION OF ANY
OTHER RIGHTS OR INTEREST OF COMPANY.
6.
OWNERSHIP AND ASSIGNMENT OF
INVENTIONS.