AS
DETERMINED IN THE REASONABLE DISCRETION OF THE COMPANY, ONLY IN A MANNER HAVING
NOT MORE THAN AN IMMATERIAL EFFECT ON THE BUSINESS, FINANCIAL CONDITION, OR
FINANCIAL RESULTS OF THE COMPANY AS A WHOLE OR ANY BUSINESS SEGMENT OF THE
COMPANY. ANY SUCH REQUEST SHALL BE ACCOMPANIED BY A DETAILED STATEMENT OF THE
THEN-CURRENT AND ANTICIPATED BUSINESS ACTIVITIES OF THE COMPETING BUSINESS,
CERTIFIED TO BE TRUE, COMPLETE, AND CORRECT ON BEHALF OF SUCH COMPETING
BUSINESS, TOGETHER WITH OR FOLLOWED BY ANY OTHER OR ADDITIONAL INFORMATION AS
MAY REASONABLY BE REQUESTED BY THE COMPANY TO FULLY AND PROPERLY EVALUATE
EXECUTIVE'S REQUEST.
(C)
NOTWITHSTANDING THE FOREGOING, EXECUTIVE
MAY OWN UP TO A FIVE PERCENT (5%) INTEREST IN A PUBLICLY TRADED CORPORATION OR
OTHER PERSON ENGAGED IN A COMPETITIVE BUSINESS.
(D)
FOR PURPOSES HEREOF, "RESTRICTION PERIOD"
MEANS THE PERIOD BEGINNING UPON THE DATE OF TERMINATION AND ENDING ON THE FIRST
ANNIVERSARY THEREOF.
4.3.
REMEDIES FOR BREACH. EXECUTIVE ACKNOWLEDGES
THAT THE PROVISIONS OF SECTIONS 4.1 AND 4.2 ARE REASONABLE AND NECESSARY FOR THE
PROTECTION OF THE COMPANY AND THAT THE COMPANY MAY BE IRREVOCABLY DAMAGED IF
THESE PROVISIONS ARE NOT SPECIFICALLY ENFORCED. ACCORDINGLY, EXECUTIVE AGREES
THAT, IN ADDITION TO ANY OTHER LEGAL OR EQUITABLE RELIEF OR REMEDY AVAILABLE TO
THE COMPANY, THE COMPANY SHALL BE ENTITLED TO SEEK AND MAY OBTAIN AN APPROPRIATE
INJUNCTION OR OTHER EQUITABLE REMEDY FOR THE PURPOSES OF RESTRAINING EXECUTIVE
FROM ANY ACTUAL OR THREATENED BREACH OF OR OTHERWISE ENFORCING THESE PROVISIONS
(AND THAT NO BOND OR SECURITY SHALL BE REQUIRED IN CONNECTION THEREWITH),
TOGETHER WITH AN EQUITABLE ACCOUNTING OF ALL EARNINGS, PROFITS, AND OTHER
BENEFITS ARISING FROM SUCH VIOLATION, WHICH RIGHTS SHALL BE CUMULATIVE.
4.4.
MODIFICATION. IF A COURT DETERMINES THAT ANY
OF THE RESTRICTIONS CONTAINED IN SECTION 4.1 OR SECTION 4.2 IS UNREASONABLE IN
TERMS OF SCOPE, DURATION, GEOGRAPHIC AREA, OR OTHERWISE, OR ANY PROVISION IN
SECTION 4.1 OR SECTION 4.2 IS OTHERWISE ILLEGAL, INVALID, OR UNENFORCEABLE, THEN
SUCH RESTRICTION OR PROVISION, AS APPLICABLE, SHALL BE REFORMED TO THE EXTENT
NECESSARY SO THAT THE SAME SHALL BE RENDERED ENFORCEABLE TO THE FULLEST EXTENT
OTHERWISE PERMISSIBLE UNDER APPLICABLE LAW, AND THE PARTIES HERETO DO HEREBY
EXPRESSLY AUTHORIZE ANY SUCH COURT TO SO PROVIDE.
SECTION 5.
GENERAL PROVISIONS
5.1.
TERMINATION OF EMPLOYMENT AGREEMENTS. THE
PARTIES HEREBY AGREE THAT ANY AND ALL PRIOR EMPLOYMENT AGREEMENTS BETWEEN
EXECUTIVE AND THE COMPANY ARE HEREBY
8
TERMINATED AS OF THE DATE HEREOF, AND ANY AND ALL SUCH AGREEMENTS SHALL BE OF NO
FURTHER FORCE AND EFFECT FROM AND AFTER THE DATE HEREOF AND THE PARTIES SHALL BE
RELEASED FROM ANY FURTHER OBLIGATIONS THEREUNDER. THE FOREGOING, HOWEVER, SHALL
NOT BE DEEMED TO ABROGATE OR OTHERWISE AFFECT ANY OF EXECUTIVE'S OBLIGATIONS
UNDER THE COMPANY'S CODE OF CONDUCT AS HERETOFORE OR HEREAFTER IN EFFECT OR ANY
OTHER RESTRICTIVE COVENANT BINDING UPON EXECUTIVE.
5.2.
CERTAIN RULES OF CONSTRUCTION.
(A)
NUMBER. THE DEFINITIONS CONTAINED IN
SECTION 2 AND ELSEWHERE IN THIS AGREEMENT SHALL BE EQUALLY APPLICABLE TO BOTH
THE SINGULAR AND PLURAL FORMS.
(B)
"INCLUDING"; "OR." THE WORD