A BROADLY RECOGNIZED
NATIONAL OR REGIONAL SECURITIES EXCHANGE.
FOR PURPOSES HEREOF, THE TERM
"MATERIAL PRODUCT OR PRODUCT LINE OF THE COMPANY" SHALL MEAN ANY PRODUCT OR
PRODUCT LINE OF THE COMPANY, THE AGGREGATE GROSS SALES OF WHICH DURING ANY
CALENDAR YEAR DURING THE FIVE (5) YEAR PERIOD PRECEDING THE EXECUTIVE'S
UNDERTAKING SUCH ASSOCIATION WITH SUCH A COMPETITOR WERE AT LEAST $10 MILLION.
(B)
ACKNOWLEDGEMENT OF AND PAYMENT FOR
NONCOMPETE.
THE EXECUTIVE ACKNOWLEDGES THAT:
(I)
THE SERVICES TO BE PERFORMED BY HIM
UNDER THIS AGREEMENT ARE OF A SPECIAL, UNIQUE, UNUSUAL, EXTRAORDINARY, AND
INTELLECTUAL CHARACTER;
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(II)
THE BUSINESS OF THE COMPANY IS WORLDWIDE
IN SCOPE AND ITS PRODUCTS ARE MARKETED THROUGHOUT THE WORLD;
(III)
THE COMPANY COMPETES WITH OTHER BUSINESSES
THAT ARE OR COULD BE LOCATED IN ANY PART OF THE WORLD; AND
(IV)
THE PROVISIONS OF THIS SECTION 9 ARE
REASONABLE AND NECESSARY TO PROTECT THE COMPANY'S BUSINESS.
AS SUCH, EXECUTIVE ACKNOWLEDGES AND AGREES THAT FIVE PERCENT (5%) OF EVERY
PAYMENT MADE TO HIM ON EACH PAYROLL PERIOD OF HIS BASE SALARY FROM THE COMPANY
ACTUALLY REPRESENTS CONSIDERATION FOR AGREEING TO THE NONCOMPETE PROVISIONS OF
THIS SECTION 9.
(C)
BLUE PENCILING.
IF ANY COVENANT IN THIS
SECTION 9 IS HELD TO BE UNREASONABLE, ARBITRARY, OR AGAINST PUBLIC POLICY, SUCH
COVENANT WILL BE CONSIDERED TO BE DIVISIBLE WITH RESPECT TO SCOPE, TIME, AND
GEOGRAPHIC AREA, AND SUCH LESSER SCOPE, TIME, OR GEOGRAPHIC AREA, OR ALL OF
THEM, AS A COURT OF COMPETENT JURISDICTION MAY DETERMINE TO BE REASONABLE, NOT
ARBITRARY, AND NOT AGAINST PUBLIC POLICY, WILL BE EFFECTIVE, BINDING, AND
ENFORCEABLE AGAINST THE EXECUTIVE.
(D)
AUTOMATIC EXTENSION FOR VIOLATION.
THE
PERIOD OF TIME APPLICABLE TO ANY COVENANT IN THIS SECTION 9 WILL BE EXTENDED BY
THE DURATION OF ANY VIOLATION BY THE EXECUTIVE OF SUCH COVENANT.
(E)
AGREEMENT TO IDENTIFY SUBSEQUENT EMPLOYER.
THE EXECUTIVE WILL, WHILE THE COVENANTS UNDER THIS SECTION 9 ARE IN EFFECT, GIVE
NOTICE TO THE COMPANY, WITHIN TEN (10) DAYS AFTER ACCEPTING ANY OTHER
EMPLOYMENT, OF THE IDENTITY OF THE EXECUTIVE'S EMPLOYER.
THE COMPANY MAY NOTIFY
SUCH EMPLOYER THAT THE EXECUTIVE IS BOUND BY THIS AGREEMENT AND, AT THE
COMPANY'S ELECTION, FURNISH SUCH EMPLOYER WITH A COPY OF THIS AGREEMENT OR
RELEVANT PORTIONS THEREOF.
(F)
PENALTY FOR VIOLATION.
IN THE EVENT IT
IS DETERMINED THAT THE EXECUTIVE HAS VIOLATED THE PROVISIONS OF THIS SECTION 9,
THE EXECUTIVE, WITHOUT ANY FURTHER ACTION BY THE COMPANY OR EXECUTIVE, SHALL
FORFEIT, AS OF THE FIRST DAY OF ANY SUCH VIOLATION ANY AMOUNT OWED TO EXECUTIVE
UNDER SECTION 6(B), OTHER THAN THE ACCRUED BENEFITS.
THE COMPANY SHALL BE
ENTITLED TO REIMBURSEMENT FROM THE EXECUTIVE OF ANY FEES AND EXPENSES (INCLUDING
ATTORNEYS' FEES) INCURRED BY OR ON BEHALF OF THE COMPANY IN ENFORCING THE
COMPANY'S RIGHTS UNDER THIS SECTION 9.
BY ENTERING INTO THIS AGREEMENT, THE
EXECUTIVE HEREBY CONSENTS TO A DEDUCTION FROM ANY AMOUNTS THE COMPANY OWES TO
EXECUTIVE FROM TIME TO TIME (INCLUDING AMOUNTS OWED TO THE EXECUTIVE AS
COMPENSATION AS WELL AS ANY OTHER AMOUNTS OWED TO