A COMPETITOR.
IF EXECUTIVE IS BOUND BY ANY OTHER
AGREEMENT WITH THE COMPANY REGARDING THE USE OR DISCLOSURE OF CONFIDENTIAL
INFORMATION, THE PROVISIONS OF THIS AGREEMENT SHALL BE READ IN SUCH A WAY AS TO
FURTHER RESTRICT AND NOT TO PERMIT ANY MORE EXTENSIVE USE OR DISCLOSURE OF
CONFIDENTIAL INFORMATION.
FOR PURPOSES OF THIS SECTION 9, (X) "NONCOMPETE
PERIOD" SHALL BE DEFINED AS THE PERIOD DURING WHICH EXECUTIVE CONTINUES TO BE
EMPLOYED BY THE COMPANY AND (I) WITH RESPECT TO ANY TERMINATION OF EMPLOYMENT
DESCRIBED IN SECTIONS 8(A) OR (B) ABOVE, ONE YEAR AND (II) WITH RESPECT TO ANY
TERMINATION OF EMPLOYMENT DESCRIBED IN SECTION 8(C) ABOVE, TWO YEARS, AND
(Y) "CONFIDENTIAL INFORMATION" SHALL MEAN ALL NON-PUBLIC INFORMATION CONCERNING
TRADE SECRET, KNOW-HOW, SOFTWARE, DEVELOPMENTS, INVENTIONS, PROCESSES,
TECHNOLOGY, DESIGNS, THE FINANCIAL DATA, STRATEGIC BUSINESS PLANS OR ANY
PROPRIETARY OR CONFIDENTIAL INFORMATION, DOCUMENTS OR MATERIALS IN ANY FORM OR
MEDIA, INCLUDING ANY OF THE FOREGOING RELATING TO RESEARCH, OPERATIONS,
FINANCES, CURRENT AND PROPOSED PRODUCTS AND SERVICES, VENDORS, CUSTOMERS,
ADVERTISING AND MARKETING, AND OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION OF
THE RESTRICTED GROUP, AND "RESTRICTED GROUP" SHALL MEAN, COLLECTIVELY, THE
COMPANY, ITS SUBSIDIARIES, AND THEIR RESPECTIVE AFFILIATES.
B.
NOTWITHSTANDING CLAUSE (A) ABOVE, IF AT
ANY TIME A COURT HOLDS THAT THE RESTRICTIONS STATED IN SUCH CLAUSE (A) ARE
UNREASONABLE OR OTHERWISE UNENFORCEABLE UNDER CIRCUMSTANCES THEN EXISTING, THE
PARTIES HERETO AGREE THAT THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHIC AREA
DETERMINED TO BE REASONABLE UNDER SUCH CIRCUMSTANCES BY SUCH COURT WILL BE
SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA.
11
10.
SPECIFIC PERFORMANCE.
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT THE COMPANY'S REMEDIES AT LAW FOR A BREACH OR
THREATENED BREACH OF ANY OF THE PROVISIONS OF SECTION 9 WOULD BE INADEQUATE AND
THE COMPANY WOULD SUFFER IRREPARABLE DAMAGES AS A RESULT OF SUCH BREACH OR
THREATENED BREACH.
IN RECOGNITION OF THIS FACT, EXECUTIVE AGREES THAT, IN THE
EVENT OF SUCH A BREACH OR THREATENED BREACH, IN ADDITION TO ANY REMEDIES AT LAW,
THE COMPANY OR ITS SUCCESSORS OR ASSIGNS, WITHOUT POSTING ANY BOND, MAY, IN
ADDITION TO OTHER RIGHTS AND REMEDIES EXISTING IN THEIR FAVOR, IMMEDIATELY APPLY
TO ANY COURT OF COMPETENT JURISDICTION TO EQUITABLE RELIEF IN THE FORM OF
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, TEMPORARY OR PERMANENT
INJUNCTION OR ANY OTHER EQUITABLE REMEDY WHICH MAY THEN BE AVAILABLE; PROVIDED,
FURTHER, THAT IN THE EVENT EXECUTIVE ACTUALLY BREACHES ANY OF THE PROVISIONS OF
SECTION 9, IN ADDITION TO THE FOREGOING, THE COMPANY OR ITS SUCCESSORS OR
ASSIGNS SHALL ALSO BE ENTITLED TO CEASE MAKING ANY PAYMENTS OR PROVIDING ANY
BENEFIT OTHERWISE REQUIRED BY THIS AGREEMENT.
11.
GROSS-UP.
(a)
If any benefit or payment by the Company or
a successor (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, including any acceleration of vesting
or payment) (a "Payment") is determined to be subject to the excise tax imposed
by Section 4999 of the Code or any interest or penalties are incurred by
Executive with respect to such excise