THE
EXECUTIVE, AND (V) THE CONSIDERATION PROVIDED HEREUNDER IS SUFFICIENT TO
COMPENSATE THE EXECUTIVE FOR THE RESTRICTIONS CONTAINED IN SECTIONS 9(A) AND
9(B).
IN CONSIDERATION OF THE FOREGOING AND IN LIGHT OF THE EXECUTIVE'S
EDUCATION, SKILLS AND ABILITIES, THE EXECUTIVE AGREES THAT HE SHALL NOT ASSERT
THAT, AND IT SHOULD NOT BE CONSIDERED THAT, ANY PROVISIONS OF SECTIONS 9(A) AND
9(B) OTHERWISE ARE VOID, VOIDABLE OR UNENFORCEABLE OR SHOULD BE VOIDED OR HELD
UNENFORCEABLE.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALTHOUGH THE
EXECUTIVE AND THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN
SECTIONS 9(A) AND 9(B) TO BE REASONABLE, IF A JUDICIAL DETERMINATION IS MADE BY
A COURT OF COMPETENT JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER
RESTRICTION CONTAINED IN THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST
THE EXECUTIVE, THE PROVISIONS OF THIS AGREEMENT SHALL NOT BE RENDERED VOID BUT
SHALL BE DEEMED AMENDED TO APPLY AS TO SUCH MAXIMUM TIME AND TERRITORY AND TO
SUCH MAXIMUM EXTENT AS SUCH COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE
ENFORCEABLE.
ALTERNATIVELY, IF ANY COURT OF COMPETENT JURISDICTION FINDS THAT
ANY RESTRICTION CONTAINED IN THIS AGREEMENT IS UNENFORCEABLE, AND SUCH
RESTRICTION CANNOT BE AMENDED SO AS TO MAKE IT ENFORCEABLE, SUCH FINDING SHALL
NOT AFFECT THE ENFORCEABILITY OF ANY OF THE OTHER RESTRICTIONS CONTAINED HEREIN.
SECTION 10.
MISCELLANEOUS.
(A)
EXECUTIVE'S AND COMPANY'S REPRESENTATIONS.
THE EXECUTIVE HEREBY
REPRESENTS AND WARRANTS TO THE COMPANY THAT:
(I) THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY THE EXECUTIVE DOES NOT AND SHALL NOT CONFLICT
WITH, BREACH, VIOLATE OR CAUSE A DEFAULT UNDER ANY CONTRACT, AGREEMENT,
INSTRUMENT, ORDER, JUDGMENT OR DECREE TO WHICH THE EXECUTIVE IS A PARTY OR BY
WHICH HE IS BOUND; (II) THE EXECUTIVE IS NOT A PARTY TO OR BOUND BY AN
EMPLOYMENT AGREEMENT, NON-COMPETE AGREEMENT OR CONFIDENTIALITY AGREEMENT WITH
ANY OTHER PERSON OR ENTITY WHICH WOULD INTERFERE IN ANY MATERIAL RESPECT WITH
THE PERFORMANCE OF HIS DUTIES HEREUNDER; PROVIDED, HOWEVER, THAT THE EXECUTIVE
IS CURRENTLY BOUND BY A CONFIDENTIALITY AGREEMENT WITH GENERAL ELECTRIC
CORPORATION WHICH THE PARTIES HEREBY AGREE WILL NOT MATERIALLY INTERFERE WITH
THE PERFORMANCE OF THE EXECUTIVE'S DUTIES HEREUNDER; AND (III) EXECUTIVE SHALL
NOT USE ANY CONFIDENTIAL INFORMATION OR TRADE SECRETS OF ANY PERSON OR PARTY
OTHER THAN THE COMPANY AND ITS SUBSIDIARIES IN CONNECTION WITH THE PERFORMANCE
OF HIS DUTIES HEREUNDER.
THE COMPANY REPRESENTS AND WARRANTS THAT IT IS FULLY
AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT, THAT THE AGREEMENT HAS
BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION, AND THAT THE PERFORMANCE
OF ITS OBLIGATIONS UNDER THIS AGREEMENT WILL NOT VIOLATE ANY AGREEMENT BETWEEN
IT AND ANY OTHER PERSON, FIRM OR ORGANIZATION.
(B)
MITIGATION.
THE EXECUTIVE SHALL HAVE NO DUTY TO MITIGATE HIS
DAMAGES BY SEEKING OTHER EMPLOYMENT AND, SHOULD THE EXECUTIVE ACTUALLY RECEIVE
COMPENSATION FROM ANY SUCH OTHER EMPLOYMENT, THE PAYMENTS REQUIRED HEREUNDER
SHALL
13
NOT BE REDUCED OR OFFSET BY ANY OTHER COMPENSATION EXCEPT AS SPECIFICALLY
PROVIDED HEREIN.
(C)
WAIVER.
NO PROVISION OF THIS AGREEMENT MAY BE MODIFIED, WAIVED OR
DISCHARGED