ENFORCEMENT WILL
NOT DEPRIVE THE CONSULTANT OF AN ABILITY TO EARN A REASONABLE LIVING, AND THAT
THE CONSULTANT HAS ACQUIRED KNOWLEDGE AND SKILLS IN THIS FIELD THAT WILL ALLOW
THE CONSULTANT TO OBTAIN OTHER WORK AS AN INDEPENDENT CONTRACTOR OR EMPLOYEE
WITHOUT VIOLATING THESE COVENANTS AND AGREEMENTS.
THE CONSULTANT FURTHER
EXPRESSLY ACKNOWLEDGES THAT THE CONSULTANT HAS HAD THE OPPORTUNITY TO CONSULT
WITH COUNSEL OR HAS CONSULTED COUNSEL BEFORE EXECUTING THIS AGREEMENT.
3
(D)
THE PARTIES HERETO RECOGNIZE THAT THE COVENANTS AND AGREEMENTS OF
THE CONSULTANT UNDER THIS AGREEMENT ARE SPECIAL, UNIQUE AND OF EXTRAORDINARY
CHARACTER, AND THAT ANY MATERIAL BREACH THEREOF SHALL RESULT IN INJURY TO THE
COMPANY THAT CANNOT BE COMPENSATED BY MONETARY DAMAGES.
IF THE CONSULTANT SHALL
BREACH OR FAIL TO PERFORM ANY TERM, CONDITION OR DUTY IN THIS AGREEMENT REQUIRED
TO BE OBSERVED OR PERFORMED BY THE CONSULTANT, THE COMPANY SHALL BE ENTITLED,
INTER ALIA, TO INSTITUTE AND PROSECUTE PROCEEDINGS IN ANY COURT OF COMPETENT
JURISDICTION, TO ENFORCE THE SPECIFIC PERFORMANCE THEREOF BY THE CONSULTANT AND
TO ENJOIN THE CONSULTANT FROM PERFORMING SERVICES FOR ANY PERSON OR ENTITY OR
OTHERWISE ACTING IN VIOLATION OF THIS AGREEMENT, WITHOUT THE NECESSITY OF
PROVING DAMAGES OR POSTING A BOND OR OTHER SECURITY.
IN THE EVENT OF A BREACH
OF THE PROVISIONS OF THIS AGREEMENT, THE CONSULTANT AGREES THAT THE REMEDIES AT
LAW AVAILABLE TO THE COMPANY WOULD BE INADEQUATE TO PROTECT THE COMPANY'S
INTERESTS; ACCORDINGLY, THE CONSULTANT AGREES NOT TO CHALLENGE THE CLAIM BY THE
COMPANY FOR ANY EQUITABLE REMEDY INCLUDING SPECIFIC PERFORMANCE OR AN INJUNCTION
ON THE BASIS THAT THERE ARE ADEQUATE REMEDIES AT LAW.
IN CASE OF ANY BREACH OF
THIS AGREEMENT, NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO PREVENT THE
COMPANY FROM SEEKING SUCH OTHER REMEDY IN THE COURTS AS THE COMPANY MAY ELECT OR
INVOKE.
7.
INDEMNIFICATION.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SHALL INDEMNIFY THE
CONSULTANT AGAINST, AND SAVE AND HOLD THE CONSULTANT HARMLESS FROM, ANY DAMAGES,
LIABILITIES, LOSSES, JUDGMENTS, PENALTIES, FINES, AMOUNTS PAID OR TO BE PAID IN
SETTLEMENT, COSTS AND REASONABLE EXPENSES (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES AND EXPENSES), RESULTING FROM, ARISING OUT OF OR IN CONNECTION
WITH ANY THREATENED, PENDING OR COMPLETED CLAIM, ACTION, PROCEEDING OR
INVESTIGATION (WHETHER CIVIL OR CRIMINAL) AGAINST OR AFFECTING THE CONSULTANT BY
REASON OF THE CONSULTANT'S SERVICE FROM AND AFTER THE EFFECTIVE DATE AS A
CONSULTANT TO ANY MEMBER OF THE COMPANY AFFILIATED GROUP, OR IN ANY CAPACITY AT
THE REQUEST OF ANY MEMBER OF THE COMPANY AFFILIATED GROUP, OR AN OFFICER,
DIRECTOR OR EMPLOYEE THEREOF, IN OR WITH REGARD TO ANY OTHER ENTITY, EMPLOYEE
BENEFIT PLAN OR ENTERPRISE (OTHER THAN ARISING OUT OF THE CONSULTANT'S ACTS OF
MISAPPROPRIATION OF FUNDS OR ACTUAL FRAUD).
IN THE EVENT THE COMPANY DOES NOT
COMPROMISE OR ASSUME THE DEFENSE OF ANY INDEMNIFIABLE CLAIM OR ACTION AGAINST
THE CONSULTANT, THE COMPANY SHALL PROMPTLY CAUSE THE CONSULTANT TO BE PAID TO
THE EXTENT PERMITTED BY APPLICABLE LAW ALL COSTS AND EXPENSES INCURRED OR TO BE
INCURRED BY THE