SUCH, ANY OF THE CURRENT OR FORMER SHAREHOLDERS, PARTNERS,
MEMBERS, AGENTS OR REPRESENTATIVES OF ANY OF THE FOREGOING, WITH RESPECT TO ANY
OF THEIR RESPECTIVE PAST OR PRESENT ACTIVITIES, OR OTHERWISE PUBLISH (WHETHER IN
WRITING OR ORALLY) STATEMENTS THAT TEND TO PORTRAY ANY OF THE AFOREMENTIONED
PARTIES IN AN UNFAVORABLE LIGHT; PROVIDED THAT THE FOREGOING SHALL ONLY APPLY
WITH RESPECT TO PERSONS THAT EXECUTIVE KNOWS OR REASONABLY SHOULD KNOW ARE
COVERED THEREBY AND SHALL NOT APPLY TO STATEMENTS MADE BY EXECUTIVE IN THE
REASONABLE GOOD FAITH PERFORMANCE OF HER DUTIES WHILE EMPLOYED BY THE COMPANY;
PROVIDED FURTHER THAN NOTHING HEREIN SHALL CREATE ANY RIGHT OR CAUSE OF ACTION
WITH RESPECT TO ANY THIRD PARTY. TIM COLLINS, HARVEY GOLUB, THE MANAGING
DIRECTOR IN CHARGE OF RIPPLEWOOD'S INVESTMENT IN THE COMPANY, THE COMPANY'S
DIRECTORS, ITS CHIEF EXECUTIVE OFFICER AND HIS OR HER DIRECT REPORTS SHALL NOT,
AND THE COMPANY SHALL TAKE ALL REASONABLE MEASURES TO ENSURE THAT THE DIRECTORS,
OFFICERS AND EMPLOYEES OF THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES SHALL
NOT, WHETHER IN WRITING OR ORALLY, DIRECTLY OR INDIRECTLY, CRITICIZE, DENIGRATE
OR DISPARAGE EXECUTIVE WITH RESPECT TO HER RESPECTIVE PAST OR PRESENT
ACTIVITIES, OR OTHERWISE PUBLISH (WHETHER IN WRITING OR ORALLY) STATEMENTS THAT
TEND TO PORTRAY HER IN AN UNFAVORABLE LIGHT; PROVIDED THAT THE FOREGOING SHALL
NOT APPLY TO STATEMENTS MADE BY THE FOREGOING PERSONS IN THE REASONABLE GOOD
FAITH PERFORMANCE OF THEIR DUTIES WHILE RENDERING SERVICES WITH RESPECT TO THE
COMPANY WHILE EXECUTIVE IS IN THE EMPLOY OF THE COMPANY. THE FOREGOING
PROVISIONS OF THIS SECTION 12 SHALL CEASE TO APPLY 2 YEARS AFTER THE END OF
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND SHALL NOT APPLY TO TRUTHFUL
TESTIMONY, NORMAL COMPETITIVE-TYPE STATEMENTS, STATEMENTS NOT MADE WITH AN
INTENT TO DAMAGE THE OTHER PARTY OR STATEMENTS MADE IN REBUTTAL OF STATEMENTS
MADE BY THE OTHER PARTY.
13. REPRESENTATIONS OF EXECUTIVE. (A)
EXECUTIVE REPRESENTS, WARRANTS AND
COVENANTS THAT (I) EXECUTIVE HAS THE FULL RIGHT, AUTHORITY AND CAPACITY TO ENTER
INTO THIS AGREEMENT AND PERFORM EXECUTIVE'S OBLIGATIONS HEREUNDER,
(II) EXECUTIVE IS NOT BOUND BY ANY AGREEMENT THAT CONFLICTS WITH OR PREVENTS OR
RESTRICTS THE FULL PERFORMANCE OF EXECUTIVE'S DUTIES AND OBLIGATIONS TO THE
COMPANY HEREUNDER DURING OR AFTER THE TERM AND (III) THE EXECUTION AND DELIVERY
OF THIS AGREEMENT SHALL NOT RESULT IN ANY BREACH OR VIOLATION OF, OR A DEFAULT
UNDER, ANY EXISTING OBLIGATION, COMMITMENT OR AGREEMENT TO WHICH EXECUTIVE IS
SUBJECT.
(B)
PRIOR TO EXECUTION OF THIS AGREEMENT, EXECUTIVE WAS ADVISED BY THE COMPANY
OF EXECUTIVE'S RIGHT TO SEEK INDEPENDENT ADVICE FROM AN ATTORNEY OF EXECUTIVE'S
OWN SELECTION REGARDING THIS AGREEMENT. EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE
HAS ENTERED INTO THIS AGREEMENT KNOWINGLY AND VOLUNTARILY AND WITH FULL
KNOWLEDGE AND UNDERSTANDING OF THE PROVISIONS OF THIS AGREEMENT AFTER BEING
GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL. EXECUTIVE FURTHER REPRESENTS THAT
IN ENTERING INTO THIS AGREEMENT, EXECUTIVE IS NOT RELYING ON ANY STATEMENTS OR
REPRESENTATIONS MADE BY ANY OF THE COMPANY'S DIRECTORS, OFFICERS, EMPLOYEES OR
14
AGENTS WHICH ARE NOT EXPRESSLY SET FORTH