Common use of Certain Additional Agreements Clause in Contracts

Certain Additional Agreements. The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, which are valuable to the Company, that the Executive make the covenants contained in Sections 7, 8 and 9 of this Agreement. The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7, 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, and (iii) the time, scope, geographic area and other provisions of Sections 7, 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections 7, 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties.

Certain Additional Agreements. (a) The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, which are valuable to the Company, that the Executive make the covenants contained in Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement. . (b) The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company [extends throughout the Restricted TerritoryUnited States], and (iii) the time, scope, geographic area and other provisions of Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. . (c) In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections Section 6, Section 7, or Section 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties.

Certain Additional Agreements. The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, 5 which are valuable to the Company, that the Executive make the covenants contained in Sections 7, 8 and 9 of this Agreement. The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7, 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, and (iii) the time, scope, geographic area and other provisions of Sections 7, 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections 7, 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties. 11. Specific Performance The Executive acknowledges that any breach or threatened breach of the covenants contained in Sections 7, 8, 9 and 10 of this Agreement will cause the Company material and irreparable damage, the exact amount of which will be difficult to ascertain and that the remedies at law for any such breach or threatened breach will be inadequate. Accordingly, the Executive agrees that the Company shall, in addition to all other available rights and remedies (including, but not limited to, seeking such damages as it can show it has sustained by reason of such breach), be entitled to specific performance and injunctive relief in respect of any breach or threatened breach of any of Sections 7, 8, 9 and 10 of this Agreement, without being required to post bond or other security and without having to prove the inadequacy of the available remedies at law or irreparable harm. 6 12. Termination (a) Except as set forth in Section 12(b), in the event of the termination of the Executive’s employment during the Employment Term the Executive shall be entitled to receive, and the Company shall pay the Executive (i) the Base Salary owing to the Executive hereunder through the date of termination, (ii) accrued vacation, and (iii) any business expenses which were properly reimbursable to the Executive pursuant to Section 4 hereof through the date of termination. Such amounts shall be paid to the Executive in a lump-sum not later than seventy-five (75) days after the date of termination. The Executive shall be entitled to no further payment upon such termination with the exception of the health insurance benefit described in paragraph 5. (b) In the event of the termination of the Executive’s employment during the Employment Term (i) by the Company without Cause (as defined below) or (ii) by the Executive for Good Reason (as defined below), and contingent upon Executive first executing the Separation Agreement that is attached hereto as Exhibit E and that Separation Agreement becoming fully effective pursuant to its terms, then the Executive shall be entitled to receive, and the Company shall pay the Executive, in addition to the amounts described in 12(a) above, (i) severance equal to the Executive’s annual Base Salary at the date of termination multiplied by two (2), and (ii) cash equal to the excess of the Market Value of securities underlying the vested options held by the Executive immediately prior to termination, less the exercise price of such options, multiplied by the number of shares underlying the corresponding options. Such amounts shall be paid to the Executive in a lump-sum not later than seventy-five (75) days after the date of termination, and shall be reduced by any amounts payable to the Executive under paragraphs 2(a), (b) and (d) of the Executive Severance and Non-Compete Agreement. For purposes of this Agreement, “Cause” shall mean: (i) failure to accomplish the goals established in the Company’s operating plans as determined by the Board of Directors;(ii) that the Executive shall have committed an intentional act of fraud, embezzlement or theft in connection with his duties with, or in the course of his employment with, the Company, or been convicted of a felony or other crime involving moral turpitude; (iii) intentional wrongful damage to or misappropriation of property of the Company; (iv) an intentional or grossly negligent refusal or failure to perform Executive’s duties, or to carry out the reasonable directions of the Company’s Board of Directors (other than on account of illness or other physical or mental disability), which refusal or failure is not remedied within the 10 calendar days after receipt by the Executive of written notice from the Company thereof, or insubordination; (v) a material breach of any of the provisions of this Agreement applicable to Executive, which breach is not remedied within the 7 10 calendar days after receipt by the Executive of written notice from the Company of such breach; and in any case any such act or failure to act shall be determined by the Board of Directors of the Company to have been materially harmful to the Company. For purposes of this Agreement, no act, or failure to act, on the part of the Executive shall be deemed “intentional” unless done, or omitted to be done, by the Executive not in good faith and without a reasonable belief that his action or omission was in the best interests of the Company, as determined by the Board of Directors of the Company in its sole but reasonable discretion; or For purposes of this Agreement, “Good Reason” shall mean a termination occurring within one hundred and twenty (120) days after the occurrence of any of the following events: (i) a significant and material adverse change in the nature or scope of Employee’s duties and responsibilities or other working conditions with Company including job classification change from that of an Executive, (ii) a failure by the Company to make timely payment to the Employee of any amounts to which he is entitled hereunder or to otherwise provide Employee with any of the benefits to which he is entitled hereunder on the terms provided herein or any other breach of the covenants contained herein, any of which is not remedied within 10 calendar days after receipt by the Company of written notice from the Employee of Employee’s objection to such change, failure, reduction or breach, as the case may be; or (iii) the liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of a significant amount of the business and/or assets of the Company to another party, unless the successor or successors (by liquidation, dissolution, merger, consolidation, reorganization or otherwise) or other transferee or transferees to which all or substantially all of such business and/or assets have been transferred (directly or by operation of law) shall have assumed all duties and obligations of the Company to Employee hereunder by an instrument in writing reasonably satisfactory in form and in substance to the Employee.

Certain Additional Agreements. (a) The Executive agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, which are valuable to the Company, that the Executive make the covenants contained in Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement. . (b) The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement are fair and reasonable and are reasonably required to protect and maintain the proprietary and other legitimate business interests of the Company, as well as the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, and (iii) the time, scope, geographic area and other provisions of Sections 7Section 6, Section 7 and Section 8 and 9 of this Agreement have been specifically negotiated by sophisticated commercial parties represented by experienced legal counsel. . (c) In the event that any covenant contained in this Agreement, including, without limitation, any covenant contained in Sections Section 6, Section 7, or Section 8 and 9 of this Agreement shall be determined by any court of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that the covenants contained in Sections 7, 8 and 9 of this Agreement are in additional to, and do not supersede, the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the parties.

Certain Additional Agreements. (a) The Executive Consultant agrees that it is a legitimate interest of the Company and reasonable and necessary for the protection of the goodwill and business of the Company, which are valuable to the Company, that the Executive Consultant make the covenants contained herein and that the Company would not have entered into this agreement or the Testing Agreement unless the covenants set forth in Sections 7this agreement, 8 including, but not limited to, the covenants contained in section 8, section 9 and 9 of this Agreement. section 10, were agreed to by the Consultant. (b) The parties acknowledge that (i) the type and periods of restriction imposed in the provisions of Sections 7section 8, 8 section 9 and 9 of this Agreement section 10 are fair and reasonable and are reasonably required to protect and maintain the proprietary and interests of the Company described above, other legitimate business interests of the Company, as well as Company and the goodwill associated with the Business conducted by the Company, (ii) the Business conducted by the Company extends throughout the Restricted Territory, world and (iii) the time, scope, geographic area and other provisions of Sections 7section 8, 8 section 9 and 9 of this Agreement section 10 above have been specifically negotiated by sophisticated commercial parties parties, represented by experienced legal counsel. It is further understood and agreed that the potential markets for the Company’s products are located throughout the world and it may be necessary for the Company to serve such markets from any location, and therefore it is reasonable that the covenants set forth herein are not limited by any narrow geographic area but extend throughout the world. (c) In the event that any covenant contained in this Agreementagreement, including, without limitationbut not limited to, any covenant contained in Sections 7of section 8, 8 section 9 and 9 of this Agreement section 10 hereof, shall be determined by any court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, (i) such covenant shall be interpreted to extend over the maximum period of time for which it may be legal, valid and enforceable, as applicable, enforceable and/or over the maximum geographical area as to which it may be legal, valid and enforceable, as applicable, enforceable and/or to the maximum extent in all other respects as to which it may be legal, valid and enforceable, as applicable, all as determined by such court or other tribunal making such determination, and (ii) in its reduced form, such covenant shall then be legal, valid and enforceable, as applicable, but such reduced form of covenant shall only apply with respect to the operation of such covenant in the particular jurisdiction in or for which such adjudication is made. It is the intention of the parties that such covenants the provisions of this agreement shall be enforceable to the maximum extent permitted by applicable law. It is acknowledged and agreed that . (d) The existence of any claim or cause of action which the covenants contained in Sections 7, 8 and 9 Consultant may have against the Company shall not constitute a defense or bar to the enforcement of any of the provisions of this Agreement are agreement and shall be pursued through separate action in additional to, and do not supersede, a court or other tribunal by the covenants contained in the “Executive Severance and Non-Compete Agreement” previously entered into by and between the partiesConsultant.