JAPAN, MALAYSIA,
SOUTH KOREA, CHINA, TAIWAN OR ASIA ("NONCOMPETITION TERRITORY") IN ANY BUSINESS
ACTIVITY OF THE COMPANY EXISTING OR CONTEMPLATED AS OF, OR CONDUCTED OR
CONTEMPLATED BY THE COMPANY PRIOR TO, THE DATE OF THIS AGREEMENT, AND/OR DURING
THE EMPLOYMENT PERIOD.
ANY SUCH ACTS DURING THE NONCOMPETITION TERM IN THE
NON-COMPETITION TERRITORY SHALL BE CONSIDERED BREACHES AND VIOLATIONS OF THIS
AGREEMENT.
ADDITIONALLY, DURING THE NONCOMPETITION TERM, EMPLOYEE SHALL NOT
DIRECTLY OR INDIRECTLY REQUEST OR ADVISE ANY CUSTOMER OR SUPPLIER OF THE COMPANY
TO WITHDRAW, CURTAIL OR CANCEL ITS BUSINESS ACTIVITIES WITH THE COMPANY.
9
If, during any period within the Noncompetition Term, Employee is not in
compliance with the terms of this Section 11, the Company shall be entitled to,
among other remedies, seek compliance by Employee with the terms of this Section
11 for an additional period equal to the period of such noncompliance.
For
purposes of this Agreement, the term "Noncompetition Term" shall also include
this additional period.
Employee hereby acknowledges that the geographic
boundaries, scope of prohibited activities and the time duration of the
provisions of this Section 11 are reasonable and are no broader than are
necessary to protect the legitimate business interests of the Company, given the
unique and worldwide nature of the Internet and electronic commerce.
This Section 11 shall survive the termination of Employee's employment and can
only be revoked or modified by a writing signed by the parties which
specifically states an intent to revoke or modify this provision.
12.
NO INTERFERENCE WITH EMPLOYEES.
DURING THE
NONCOMPETITION TERM, WITHOUT THE CONSENT OF THE BOARD OF DIRECTORS, NEITHER
EMPLOYEE
NOR ANY INDIVIDUAL, PARTNERS, LIMITED PARTNERSHIP, CORPORATION OR
OTHER ENTITY OR BUSINESS WITH WHICH EMPLOYEE IS IN ANY WAY AFFILIATED,
INCLUDING, WITHOUT LIMITATION, ANY PARTNER, LIMITED PARTNER, DIRECTOR, OFFICER,
SHAREHOLDER OR EMPLOYEE OF ANY SUCH ENTITY OR BUSINESS, WILL (I) REQUEST, INDUCE
OR ATTEMPT TO INFLUENCE, DIRECTLY OR INDIRECTLY, ANY EMPLOYEE OF THE COMPANY TO
TERMINATE HIS EMPLOYMENT WITH THE COMPANY OR (II) EMPLOY ANY PERSON WHO AS OF
THE DATE HEREOF WAS, OR AFTER SUCH DATE IS OR WAS, AN EMPLOYEE OF THE COMPANY.
13.
REFORMATION OF SECTIONS 11 AND 12.
THE
COMPANY AND EMPLOYEE AGREE AND STIPULATE THAT THE AGREEMENTS AND COVENANTS NOT
TO COMPETE CONTAINED IN SECTIONS 11 AND 12 HEREOF ARE FAIR AND REASONABLE IN
LIGHT OF ALL OF THE FACTS AND CIRCUMSTANCES OF THE RELATIONSHIP BETWEEN EMPLOYEE
AND THE COMPANY; HOWEVER, EMPLOYEE AND THE COMPANY ARE AWARE THAT IN CERTAIN
CIRCUMSTANCES COURTS HAVE REFUSED TO ENFORCE CERTAIN AGREEMENTS NOT TO COMPETE.
THEREFORE, IN FURTHERANCE OF, AND NOT IN DEROGATION OF THE PROVISIONS OF
SECTIONS 11 AND 12, THAT IN THE EVENT A COURT SHOULD DECLINE TO ENFORCE THE
PROVISIONS OF SECTIONS 11 AND/OR 12, SECTIONS 11 AND/OR 12, AS APPLICABLE, SHALL
BE DEEMED TO BE MODIFIED OR REFORMED TO RESTRICT EMPLOYEE'S COMPETITION WITH THE
COMPANY OR ITS AFFILIATES TO THE MAXIMUM EXTENT, AS TO TIME, GEOGRAPHY AND
BUSINESS SCOPE, WHICH THE COURT SHALL FIND ENFORCEABLE; PROVIDED, HOWEVER, IN