8x8 2010 Annual Report Download - page 84

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Page 8
7.2. Employment Agreement. 8x8 shall have received a duly executed Employment Agreement from
Stockholder, in a form reasonably acceptable to 8x8.
8. Survival of Representations; Indemnification.
8.1. Survival of Representations. The respective representations and warranties of the Stockholder, Central
Host, and 8x8 contained in this Agreement or in any Exhibit attached hereto shall survive the Closing.
8.2. Indemnification.
(a) The Stockholder agrees to indemnify and hold 8x8 and its officers, directors, employees,
agents, customers, partners and vendors harmless from damages, losses or expenses
(including, without limitation, reasonable attorneys' fees and expenses) suffered or paid,
directly or indirectly, through application of Central Host's or 8x8's assets or otherwise, as a
result of or arising out of (i) the failure to be true and correct in all respects of any
representation or warranty, or the breach of any covenant, made by the Stockholder or Central
Host in this Agreement or in any schedule attached hereto as of the date of this Agreement
and as of the Closing Date. (ii) any payment obligation owing to XO Communications arising
from the matter described on Schedule 5.6(b).
(b) The obligations to indemnify and hold harmless pursuant to this Section 8.2 shall survive the
consummation of the transactions contemplated by this Agreement.
9. Non-Competition.
9.1. Stockholder agrees that from the Closing Date until the third anniversary following the Closing Date,
Stockholder will not, directly or indirectly, assist in, engage in, have any financial interest in, or
participate in any way in, as an owner, partner, employee, agent, board member or shareholder, any
business that involves, in whole or in part, activities similar to, related to or competitive with the
business heretofore or now carried on by Central Host.
9.2. Stockholder acknowledges that: (i) an essential part of the purchase by 8x8 is the goodwill of Central
Host contained in the Shares and that to protect and preserve such goodwill, the covenants set forth in
this Section 9 are not only reasonable and necessary but required as a condition to 8x8’ s consummation
of the acquisition; (ii) the provisions of this Section 9 are the product of arm’ s-length negotiation and
are reasonable and necessary to protect and preserve 8x8’ s interests in and right to the ownership, use
and operation of the business of Central Host from and after the Closing Date; and (iii) 8x8 would be
damaged if Stockholder breached the covenants set forth in this Section 9.
9.3. The Parties recognize that damages in the event of a breach by Stockholder of any provision of this
Section 9 would be difficult, if not impossible, to ascertain, and it is therefore agreed that 8x8, in
addition to and without limiting any other remedy or right it may have, shall have the right to an
injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach.
The existence of this right shall not preclude any other rights or remedies at law or in equity which 8x8
may have relating to a breach of this Section 9.
9.4 Whenever possible, each provision and term of this Section 9 shall be interpreted in a manner to be
effective and valid, but if any provision or term of this Section 9 is held to be prohibited or invalid,
then such provision or term shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating or affecting in any manner whatsoever the remainder of such provision or term or
the remaining provisions or terms of this Section 9. If any of the covenants set forth in this Section 9
are held to be unreasonable, arbitrary or against public policy, such covenants shall be considered
divisible with respect to duration, geographic area and scope, and in such lesser duration, geographic
area and scope, shall be effective, binding and enforceable against Stockholder to the greatest extent
permissible.