Rosetta Stone 2014 Annual Report Download - page 189

working under the Executive, has entertained discussions with to become a client or customer of Company at any time during the
twelve (12)-month period immediately preceding the Termination Date and who has not explicitly rejected a business relationship with
the Company. For purposes of this Section 9(a), “Company” includes Company and any Affiliate to which Executive provided
services during his employment.
(b) Acknowledgment. Executive acknowledges that in the course of his employment with the Company and its
Affiliates, he has and will become familiar with the trade secrets and other Proprietary Information of the Company and its Affiliates.
Executive further acknowledges that as the SVP, Consumer of the Company, Executive has and will have direct or indirect
responsibility, oversight or duties with respect to the businesses of the Company and its Affiliates and its and their current and
prospective employees, vendors, customers, clients and other business relations, and that, accordingly, the geographical restriction
contained in this Section 9 is reasonable in all respects and necessary to protect the goodwill and Proprietary Information of the
Company and that without such protection the Company’s customer and client relations and competitive advantage would be
materially adversely affected. It is specifically recognized by Executive that his services to the Company and its Affiliates are special,
unique and of extraordinary value, that the Company has a protectable interest in prohibiting Executive as provided in this Section 9,
that Executive is responsible for the growth and development of the Company and the creation and preservation of the Company’s
goodwill, that money damages are insufficient to protect such interests, that there is adequate consideration being provided to
Executive hereunder, that such prohibitions are necessary and appropriate without regard to payments being made to Executive
hereunder and that the Company would not enter this Agreement with Executive without the restriction of this Section 9. Executive
further acknowledges that the restrictions contained in this Section 9 do not impose an undue hardship on him and, since he has general
business skills that may be used in industries other than that in which the Company and its Affiliates conduct their business, do not
deprive Executive of his livelihood. Executive further acknowledges that the provisions of this Section 9 are separate and independent
of the other sections of this Agreement.
(c) Enforcement, etc. If, at the time of enforcement of Section 8 or 9 of this Agreement, a court concludes that the
restrictions stated herein are unenforceable or unreasonable under circumstances then existing, the parties hereto agree that the
unenforceable or unreasonable restriction should be severed from the Agreement and shall not affect the validity of enforceability of
the other restrictions in Section 8 or 9. Because Executive’s services are unique, because Executive has access to Proprietary
Information and for the other reasons set forth herein, the parties hereto agree that money damages would be an inadequate remedy for
any breach of this Agreement. Therefore, without limiting the generality of Section 12(f), in the event of a breach or threatened breach
of this Agreement, the Company or its successors or assigns may, in addition to other rights and remedies existing in their favor, apply
to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security).
(d) Submission to Jurisdiction. The parties hereby: (i) submit to the jurisdiction of any state or federal court sitting in
the Commonwealth of Virginia in any action or proceeding arising out of or relating to Section 8 and/or 9 of this Agreement; (ii) agree
that all claims in respect of such action or proceeding may be heard or determined in any such court; and (iii) agree not to bring any
action or proceeding arising out of or relating to Section 8 and/or 9 of this Agreement in any other court. The parties hereby waive any
defense of inconvenient forum to the maintenance of any action or proceeding so brought. The parties hereby agree that a final
judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other
manner provided by law.