UNLESS SUCH INFORMATION IS IN OR ENTERS THE PUBLIC
DOMAIN THROUGH NO FAULT OF THE EXECUTIVE OR IS OTHERWISE LAWFULLY KNOWN BY THIRD
PARTIES.
IN THE EVENT THE EXECUTIVE BECOMES OR MAY BECOME LEGALLY COMPELLED TO
DISCLOSE ANY CONFIDENTIAL INFORMATION (WHETHER BY DEPOSITION, INTERROGATORY,
REQUEST FOR DOCUMENTS, SUBPOENA, CIVIL INVESTIGATIVE DEMAND OR OTHER PROCESS OR
OTHERWISE), THE EXECUTIVE SHALL PROVIDE TO THE BOARD PROMPT PRIOR WRITTEN NOTICE
OF SUCH REQUIREMENT SO THAT THE COMPANY MAY SEEK A PROTECTIVE ORDER OR OTHER
APPROPRIATE REMEDY AND/OR WAIVE COMPLIANCE WITH THE TERMS OF THIS SECTION 9.
IN
THE EVENT THAT SUCH PROTECTIVE ORDER OR OTHER REMEDY IS NOT OBTAINED, OR THAT
THE COMPANY WAIVES COMPLIANCE WITH THE PROVISIONS THIS SECTION 9, THE EXECUTIVE
SHALL FURNISH ONLY THAT PORTION OF THE CONFIDENTIAL INFORMATION WHICH IT IS
ADVISED BY COUNSEL IS LEGALLY REQUIRED TO BE DISCLOSED, AND SHALL USE HIS BEST
EFFORTS TO INSURE THAT CONFIDENTIAL TREATMENT SHALL BE AFFORDED SUCH DISCLOSED
PORTION OF THE CONFIDENTIAL INFORMATION.
10.
EQUITABLE RELIEF.
(A)
THE EXECUTIVE ACKNOWLEDGES THAT THE RESTRICTIONS CONTAINED IN
SECTIONS 7, 8, AND 9 HEREOF ARE REASONABLE AND NECESSARY TO PROTECT THE
LEGITIMATE INTERESTS OF THE COMPANY, THAT THE COMPANY WOULD NOT HAVE ENTERED
INTO THIS AGREEMENT IN THE ABSENCE OF SUCH RESTRICTIONS, AND THAT ANY VIOLATION
OF ANY PROVISION OF THOSE SECTIONS WILL RESULT IN IRREPARABLE INJURY TO THE
COMPANY.
THE EXECUTIVE REPRESENTS THAT HIS EXPERIENCE AND CAPABILITIES ARE SUCH
THAT THE RESTRICTIONS CONTAINED IN SECTION 8
HEREOF WILL NOT PREVENT THE
EXECUTIVE FROM OBTAINING EMPLOYMENT OR OTHERWISE EARNING A LIVING AT THE SAME
GENERAL LEVEL OF ECONOMIC BENEFIT AS IS ANTICIPATED BY THIS AGREEMENT.
THE
EXECUTIVE FURTHER REPRESENTS AND ACKNOWLEDGES THAT (I) HE HAS BEEN ADVISED BY
THE COMPANY TO CONSULT HIS OWN LEGAL COUNSEL IN RESPECT OF THIS AGREEMENT, (II)
THAT HE HAS HAD FULL OPPORTUNITY, PRIOR TO EXECUTION OF THIS AGREEMENT, TO
REVIEW THOROUGHLY THIS AGREEMENT WITH HIS COUNSEL, AND (III) HE HAS READ AND
FULLY UNDERSTANDS THE TERMS AND PROVISIONS OF THIS AGREEMENT.
(B)
THE EXECUTIVE AGREES THAT THE COMPANY SHALL BE ENTITLED TO
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF, WITHOUT THE NECESSITY OF PROVING
ACTUAL DAMAGES, AS WELL AS AN EQUITABLE ACCOUNTING OF ALL EARNINGS, PROFITS AND
OTHER BENEFITS ARISING FROM ANY VIOLATION OF SECTIONS 7, 8, OR 9 HEREOF, WHICH
RIGHTS SHALL BE CUMULATIVE AND IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES TO
WHICH THE COMPANY MAY BE ENTITLED.
IN THE EVENT THAT ANY OF THE PROVISIONS OF
SECTIONS 7, 8, OR 9 HEREOF SHOULD EVER BE ADJUDICATED TO EXCEED THE TIME,
GEOGRAPHIC, PRODUCT OR SERVICE, OR OTHER LIMITATIONS PERMITTED BY APPLICABLE LAW
IN ANY JURISDICTION, THEN SUCH PROVISIONS SHALL BE DEEMED REFORMED IN SUCH
JURISDICTION TO THE MAXIMUM TIME, GEOGRAPHIC, PRODUCT OR SERVICE, OR OTHER
LIMITATIONS PERMITTED BY APPLICABLE LAW.
(C)
THE COMPANY AND THE EXECUTIVE EACH IRREVOCABLY AND
6
UNCONDITIONALLY (I) AGREE THAT ANY SUIT, ACTION OR OTHER LEGAL PROCEEDING
ARISING OUT OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY ACTION FOR
PRELIMINARY OR PERMANENT INJUNCTIVE