RIGHTS.
IN EXCHANGE FOR THE OTHER TERMS OF
THIS AGREEMENT, EXECUTIVE ACKNOWLEDGES AND AGREES THAT: (A) EXECUTIVE'S ENTRY
INTO THIS AGREEMENT IS A CONDITION OF EMPLOYMENT AND/OR CONTINUED EMPLOYMENT
WITH THE COMPANY, AS APPLICABLE; (B) EXCEPT AS OTHERWISE PROVIDED HEREIN, THIS
AGREEMENT WILL REPLACE ANY EXISTING SIMILAR OR OVERLAPPING AGREEMENT BETWEEN THE
PARTIES AND THEREBY ACT AS A NOVATION, IF APPLICABLE; (C) IN CONSIDERATION FOR
THIS AGREEMENT, EXECUTIVE IS BEING PROVIDED WITH ACCESS TO PROPRIETARY
INFORMATION, TRADE SECRETS AND OTHER CONFIDENTIAL INFORMATION TO WHICH EXECUTIVE
HAS NOT PREVIOUSLY HAD ACCESS; (D) ALL WORK PRODUCT DEVELOPED BY EXECUTIVE
DURING ANY PAST EMPLOYMENT WITH THE COMPANY, AND ALL GOODWILL DEVELOPED WITH THE
COMPANY'S CLIENTS, CUSTOMERS, VENDORS, AND/OR OTHER BUSINESS CONTACTS BY
EXECUTIVE DURING ANY PAST EMPLOYMENT WITH THE COMPANY, IS THE EXCLUSIVE PROPERTY
OF THE COMPANY; AND (E) ALL COMPANY INFORMATION AND/OR SPECIALIZED TRAINING
ACCESSED, CREATED, RECEIVED, OR UTILIZED BY EXECUTIVE DURING ANY PAST EMPLOYMENT
WITH THE COMPANY, WILL BE SUBJECT TO THE RESTRICTIONS ON CONFIDENTIAL
INFORMATION DESCRIBED IN THIS AGREEMENT, AS APPLICABLE, WHETHER PREVIOUSLY SO
AGREED OR NOT.
(R)
VOLUNTARY AGREEMENT.
EACH PARTY TO THIS AGREEMENT HAS READ AND
FULLY UNDERSTANDS THE TERMS AND PROVISIONS HEREOF, HAS HAD AN OPPORTUNITY TO
REVIEW THIS AGREEMENT WITH LEGAL COUNSEL, HAS EXECUTED THIS AGREEMENT BASED UPON
SUCH PARTY'S OWN JUDGMENT AND ADVICE OF COUNSEL (IF ANY), AND KNOWINGLY,
VOLUNTARILY, AND WITHOUT DURESS, AGREES TO ALL OF THE TERMS SET FORTH IN THIS
AGREEMENT.
IF AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THIS
AGREEMENT WILL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES AND NO
PRESUMPTION OR BURDEN OF PROOF WILL ARISE FAVORING OR DISFAVORING ANY PARTY
BECAUSE OF AUTHORSHIP OF ANY PROVISION OF THIS AGREEMENT.
EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT, NEITHER THE PARTIES NOR THEIR AFFILIATES, ADVISORS
AND/OR THEIR ATTORNEYS HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, AT LAW OR IN EQUITY WITH RESPECT OF THE SUBJECT MATTER CONTAINED
HEREIN.
WITHOUT LIMITING THE GENERALITY OF THE PREVIOUS SENTENCE, THE COMPANY,
ITS AFFILIATES, ADVISORS, AND/OR ATTORNEYS HAVE MADE NO REPRESENTATION OR
WARRANTY TO EXECUTIVE CONCERNING THE STATE OR FEDERAL TAX CONSEQUENCES TO
EXECUTIVE, IF ANY, REGARDING THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(S)
SURVIVAL OF COVENANTS.
THE PROVISIONS OF THIS AGREEMENT THAT, BY
THEIR OWN TERMS, APPLY AFTER THE TERMINATION DATE (INCLUDING, WITHOUT
LIMITATION, THE APPLICABLE PROVISIONS SECTIONS 1, 2, 3, 4, AND
9
5(P), SHALL SURVIVE THE TERMINATION OR RESIGNATION OF EXECUTIVE'S EMPLOYMENT
WITH THE COMPANY (REGARDLESS OF WHETHER THE EMPLOYMENT TERMINATION OR
RESIGNATION IS VOLUNTARY, INVOLUNTARY, FOR CAUSE, OR NOT FOR CAUSE) AND SHALL
REMAIN IN FULL FORCE AND EFFECT AFTER SUCH TERMINATION OR RESIGNATION, AS
APPLICABLE ACCORDING TO THEIR TERMS.
EXECUTIVE FURTHER AGREES TO NOTIFY ALL
FUTURE PERSONS OR BUSINESSES, WITH WHICH HE BECOMES AFFILIATED OR EMPLOYED BY,
OF THE RESTRICTIONS SET FORTH IN SECTIONS 1, 2, 3, AND 4, PRIOR TO THE
COMMENCEMENT OF ANY SUCH AFFILIATION OR EMPLOYMENT.
NOTICE: THIS AGREEMENT INCLUDES RESTRICTIVE COVENANTS REGARDING COMPETITION AND
WAIVER OF TRIAL BY