PAY UNDER SECTION 5(F) IS CONDITIONED UPON EXECUTIVE'S
OBSERVANCE OF SECTIONS 6, 7, 8 AND 9.
EXECUTIVE FURTHER AGREES THAT IN THE
EVENT OF HIS FAILURE TO OBSERVE THE PROVISIONS OF SECTIONS 6, 7, 8 OR 9, (I)
EXECUTIVE SHALL FORFEIT THE RIGHT TO RECEIVE ANY PORTION OF HIS BONUS (II) THE
COMPANY SHALL BE ENTITLED TO DISCONTINUE FURTHER SEVERANCE PAYMENTS UNDER
SECTION 5(F) AND (III) THE COMPANY SHALL BE ENTITLED TO RECOVER FROM THE
EXECUTIVE ANY PAYMENTS MADE TO THE EXECUTIVE UNDER SECTION 5(F).
THE FOREGOING
SHALL BE IN ADDITION TO ANY OTHER REMEDIES OR RIGHTS THE COMPANY MAY HAVE AT LAW
OR AT EQUITY AS A RESULT OF THE EXECUTIVE'S FAILURE TO OBSERVE SUCH PROVISIONS.
(C)
CERTAIN ACKNOWLEDGMENTS.
THE EXECUTIVE
ACKNOWLEDGES AND AGREES THAT (I) THE EXECUTIVE HAS HAD AND WILL HAVE A PROMINENT
ROLE IN THE MANAGEMENT OF THE BUSINESS, AND THE DEVELOPMENT OF THE GOODWILL, OF
THE COMPANY AND ITS SUBSIDIARIES AND WILL ESTABLISH AND DEVELOP RELATIONS AND
CONTACTS WITH THE PRINCIPAL CUSTOMERS AND SUPPLIERS OF THE COMPANY AND ITS
SUBSIDIARIES IN THE UNITED STATES OF AMERICA AND THE REST OF THE WORLD, ALL OF
WHICH CONSTITUTE VALUABLE GOODWILL OF, AND COULD BE USED BY THE EXECUTIVE TO
COMPETE UNFAIRLY WITH, THE COMPANY AND ITS SUBSIDIARIES, (II) IN THE COURSE OF
HIS EMPLOYMENT WITH THE COMPANY, THE EXECUTIVE WILL OBTAIN CONFIDENTIAL AND
PROPRIETARY INFORMATION AND TRADE SECRETS CONCERNING THE BUSINESS AND OPERATIONS
OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES IN THE UNITED STATES OF
AMERICA AND THE REST OF THE WORLD THAT COULD BE USED TO COMPETE UNFAIRLY WITH
THE COMPANY AND ITS SUBSIDIARIES, (III) THE COVENANTS AND RESTRICTIONS CONTAINED
IN THIS AGREEMENT ARE INTENDED TO PROTECT THE LEGITIMATE INTERESTS OF THE
COMPANY AND ITS AFFILIATES IN THEIR RESPECTIVE GOODWILL, TRADE SECRETS AND OTHER
CONFIDENTIAL AND PROPRIETARY INFORMATION, (IV) THE EXECUTIVE DESIRES TO BE BOUND
BY SUCH COVENANTS AND RESTRICTIONS, (V) SUCH COVENANTS ARE A MATERIAL INDUCEMENT
FOR THE COMPANY TO ENTER INTO THIS AGREEMENT, AND (VI) HIS ECONOMIC MEANS AND
CIRCUMSTANCES ARE SUCH THAT THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE
RESTRICTIVE COVENANTS IN THIS AGREEMENT, WILL NOT PREVENT HIM FROM PROVIDING FOR
HIMSELF AND HIS FAMILY ON A BASIS SATISFACTORY TO HIM AND THEM.
(D)
BLUE PENCIL.
IT IS THE DESIRE OF THE
PARTIES TO THIS AGREEMENT THAT THE PROVISIONS OF SECTIONS 6 THROUGH 11, IN
PARTICULAR, BE INTERPRETED AND ENFORCED TO THE GREATEST EXTENT POSSIBLE (AND
CONSISTENT WITH SECTION 16(E)).
12.
ASSUMPTION OF AGREEMENT.
THE COMPANY WILL
REQUIRE ANY SUCCESSOR (BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL
OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY, BY AGREEMENT
IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE EXECUTIVE, TO EXPRESSLY
ASSUME AND AGREE TO PERFORM THE OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT
IN THE SAME MANNER AND TO THE SAME EXTENT THAT THE COMPANY WOULD BE REQUIRED TO
PERFORM IF NO SUCH SUCCESSION HAD TAKEN PLACE.
13.
INDEMNIFICATION.
THE COMPANY AGREES THAT IT
SHALL INDEMNIFY AND HOLD HARMLESS