exv4w2






Exhibit 4.2




Award No. RH _____




WEBMD
HEALTH CORP.


RESTRICTED STOCK AGREEMENT




     THIS RESTRICTED STOCK AGREEMENT is made effective as of [______, 20___] (the “Grant Date”), by
and between WebMD Health Corp., a Delaware corporation (the “Company”), and
[____________] (the “Holder”):



     WHEREAS, the Compensation Committee of the Company’s Board of Directors or its designee has
determined that it would be to the advantage and in the best interest of the Company and its
stockholders to enter into this Restricted Stock Agreement (the “Agreement”) pursuant to
the Company’s Amended and Restated 2005 Long-Term Incentive Plan, (the “Plan”; all
capitalized terms used herein without definition shall have the meaning ascribed to such terms in
the Plan) to assign certain shares of Common Stock of the Company subject to certain restrictions
thereon (hereinafter referred to as the “Restricted Stock”) to the Holder in consideration
of services to be rendered and as an incentive for the Holder’s best performance of future services
to Company and its Subsidiaries, subject to the restrictions set forth herein.



     NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties hereto do hereby agree
as follows:



ARTICLE I.

AWARD OF RESTRICTED STOCK




     Section 1.1 Award of Restricted Stock.



          In consideration of Holder’s services and for other good and valuable consideration which the
Committee has determined, the Company hereby awards and assigns to the Holder, on the Grant Date,
[______] shares of Restricted Stock. The Restricted Stock is awarded under and subject to the
terms and conditions of the Plan.




     Section 1.2 Not a Contract of Employment.



          Nothing in this Agreement shall confer upon the Holder any right to continue in the employ or
service of the Company or any Affiliate, or shall interfere with or restrict in any way any
otherwise existing rights of the Company and any Affiliate, which are hereby expressly reserved, to
discharge the Holder at any time for any reason whatsoever, with or without Cause.




     Section 1.3 Covenants.



          In the event that you breach any restrictive covenants to which you are bound (including,
without limitation, those set forth on Annex A), in addition to any other remedy available to the
Company, any shares of Restricted Stock will be immediately forfeited without any notice or
consideration being paid therefor and the Company shall be entitled to recoup income realized upon
the prior vesting of shares of Restricted Stock granted hereunder. By signing below, you
acknowledge the representations and agree to
the covenants set forth on Annex A as a condition to your ability to have any rights hereunder. In
addition, you acknowledge that you have read the covenants contained on Annex A and have had an
opportunity to consult with an attorney of your own choice (at your expense) prior to signing and
understand that signing this Agreement is a condition to any rights you may have under this
Agreement. The covenants on Annex A



 









 






do not supercede or replace any other confidentiality,
non-competition or non-solicitation agreement entered into between you and the Company (or any
Affiliate thereof) to the extent that such confidentiality, non-competition and/or non-solicitation
agreement is more protective of the business of the Company and/or its Affiliates.




ARTICLE II.

RESTRICTIONS




     Section 2.1 Definition.



          “Restrictions” shall mean the restrictions on sale or other transfer set forth in
Section 3.1, the exposure to forfeiture set forth in Section 2.2 and the vesting set forth in
Section 2.3.




     Section 2.2 Forfeiture.



          Any share of Restricted Stock that is not vested pursuant to Section 2.3 upon the termination
of employment of the Holder, for any reason other than as a result of death or Disability, shall
thereupon be forfeited to the Company without payment. In the event of the termination of the
Holder’s employment as a result of the death or Disability of the Holder, all Restrictions shall
lapse as of the date of termination.




     Section 2.3 Vesting and Lapse of Restrictions.



          Subject to Sections 2.2, 2.4 and 2.6, each share of Restricted Stock shall not be transferable
until such share becomes vested. Twenty five percent (25%) of the shares of Restricted Stock shall
vest and the Restrictions on such shares shall lapse annually on each of the first, second, third
and fourth anniversaries of the Grant Date; provided, however, that if a vesting
date shall fall on a date which is during a black-out period with respect to the Common Stock to
which Holder is subject, such vesting date shall be delayed until the first day after the
expiration of such black-out period.




     Section 2.4 Legend.



          Certificates representing shares of Restricted Stock assigned pursuant to this Agreement
shall, until all Restrictions lapse or shall have been removed and new certificates are assigned
pursuant to Section 2.5, be held by the Company and bear the following legend:





“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK
AGREEMENT BY AND BETWEEN WEBMD HEALTH CORP. (THE “COMPANY”) AND THE
REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY OR
INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE
PROVISIONS OF SUCH AGREEMENT.”



     Section 2.5 Assignment of Certificates for Vested Shares.



          Upon the vesting of the shares of Restricted Stock as provided in Section 2.3 and subject to
Section 3.3, the Company shall cause new certificates to be assigned with respect to such vested
shares and


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delivered to the Holder or Holder’s legal representative, free from any Restrictions and
free from the legend provided for in Section 2.4; provided, that such shares shall remain
subject to applicable securities laws and the Company’s employee trading policy. Such vested
shares shall cease to be considered Restricted Stock subject to the terms and conditions of this
Agreement and shall be shares of Common Stock of the Company free of all Restrictions (other than
any applicable securities law restrictions or any restrictions imposed by the Company’s employee
trading policy).




     Section 2.6 Restrictions On New Shares.



          In the event that the Holder receives any new or additional or different shares or securities
by reason of any transaction or event described in Section 15.1 of the Plan, such new or additional
or different shares or securities which are attributable to the Holder in Holder’s capacity as the
registered owner of the Restricted Stock then subject to Restrictions, shall be considered to be
Restricted Stock and shall be subject to all of the Restrictions, unless the Committee provides,
for the removal or lapse of the Restrictions on the shares of Restricted Stock underlying the
distribution of the new or additional shares or securities.




ARTICLE III.

MISCELLANEOUS




     Section 3.1 Restricted Stock Not Transferable.



          No Restricted Stock or any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Holder or Holder’s successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or
any other means whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no effect.




     Section 3.2 Conditions to Delivery of Stock Certificates.



          The Company shall not be required to deliver any certificate or certificates for shares of
stock pursuant to this Agreement prior to fulfillment of all of the following conditions:





     (a) The obtaining of any approval or other clearance from any state or federal
governmental agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable; and




     (b) The payment by the Holder of all amounts required to be withheld, under federal,
state and local (or applicable foreign) tax laws, with respect to the issuance and/or the
lapse or removal of any of the Restrictions which may be paid either by the Holder or by the
Company withholding that number of shares of Common Stock with a Fair Market Value equal to
the minimum tax withholding obligation in accordance with procedures established by the
Company; and




     (c) The lapse of such reasonable period of time as the Committee may from time to time
establish for reasons of administrative convenience.



          In addition, the Company may, at its sole election, cancel the Common Stock underlying the
Restricted Stock in the event the Holder fails to satisfy the applicable tax withholdings within 45
days of the applicable vesting date.





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     Section 3.3 Physical Custody.



          The Secretary of the Company or such other representative as the Committee may appoint shall
retain physical custody of each certificate representing Restricted Stock until all of the
Restrictions imposed under this Agreement with respect to the shares evidenced by such certificate
expire or shall have been removed; provided, however, that in no event shall the
Holder retain physical custody of any certificates representing unvested Restricted Stock assigned
to Holder.




     Section 3.4 Notices.



          Any notice required by this Agreement will be deemed provided and delivered to the intended
recipient when (i) delivered in person by hand or, in accordance with applicable law, via the
Company’s e-mail or intranet site; or (ii) three days after being sent via U.S. certified mail,
return receipt requested; or (iii) the day after being sent via overnight courier, in each case
provided such notice is properly addressed to the following address and enclosed in a properly
sealed envelope or wrapper, and with all postage and similar fees having been paid in advance.




	 	 	 
	If to the Company:

	 	WebMD Health Corp.

111 Eighth Avenue

New York, NY 10011
	 
	 	 
	And if to the Holder:

	 	To the address specified in the Company’s payroll records.






          By a notice given pursuant to this Section 3.4, either party may hereafter designate a
different address for notices to be given. Any notice which is required to be given to the Holder
shall, if the Holder is then deceased, be given to the Holder’s personal representative if such
representative has previously informed the Company of representative’s status and address by
written notice under this Section 3.4.




     Section 3.5 Rights as Stockholder.



          Except as otherwise provided herein, upon delivery of the shares of Restricted Stock to the
representative pursuant to Section 3.3, the Holder shall have, unless otherwise provided by the
Committee, all the rights of a stockholder with respect to said shares, including the right to vote
and the right to receive all dividends and other distributions paid or made with respect to the
shares; provided, however, that any dividends or extraordinary distributions with
respect to the Restricted Stock shall be subject to the same Restrictions that apply to the
corresponding shares of Restricted Stock and such Restrictions will only lapse if, and to the
extent that, the Restrictions on the corresponding shares of Restricted Stock lapse.




     Section 3.6 Withholding Tax.



          The Holder agrees that, in the event of the issuance of the Restricted Stock or the expiration
of Restrictions thereon results in the Holder’s realization of income which for federal, state or
local income tax purposes is, in the opinion for the Company, subject to withholding of tax at
source by the Company, the Holder will pay to the Company an amount equal to such withholding tax
prior to the Company’s delivery of
the Certificate or the Company shall withhold that number of Shares of Common Stock with a
Fair Market Value equal to the minimum tax withholding obligation.





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     Section 3.7 Titles.



          Titles are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.




     Section 3.8 Conformity to Securities Laws.



          The Holder acknowledges that this Agreement is intended to conform to the extent necessary
with all provisions of all applicable federal and state (and applicable foreign) laws, rules and
regulations (including but not limited to, the 1933 Act and the 1934 Act) and to such approvals by
any listing, regulatory or other governmental authority as may, in the opinion of counsel for the
Company, be necessary or advisable in connection therewith. Notwithstanding anything herein to the
contrary, this Agreement shall be administered, and the Restricted Stock shall be assigned, only in
such a manner as to conform to such laws, rules and regulations including, without limitation, Rule
16b-3. To the extent permitted by applicable law, this Agreement and the Restricted Stock assigned
hereunder shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.




     Section 3.9 Amendment.



          This Agreement may be amended without the consent of the Holder provided that such amendment
would not impair any rights of the Holder under this Agreement. No amendment of this Agreement
shall, without the consent of the Holder, impair any rights of the Holder under this Agreement.




     Section 3.10 Governing Law.



          The laws of the State of Delaware shall govern the interpretation, validity, administration,
enforcement and performance of the terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.




     Section 3.11 Section 83(b) Election.



          If, within 30 days of the Grant Date, a Holder makes an election under Section 83(b) of the
Code, or any successor section thereto, to be taxed with respect to all or any portion of the
Restricted Stock as of the date of transfer of the Restricted Stock rather than as of the date or
dates upon which the Holder would otherwise be taxable under Section 83(a) of the Code, the Holder
shall deliver a copy of such election to the Company immediately after filing such election with
the Internal Revenue Service.




     Section 3.12 Set-off



          If at any time the Holder is indebted to the Company or any Affiliate, the Company may in its
discretion withhold shares of Common Stock issuable to the Holder following the lapse of
Restrictions having a Fair Market Value up to the amount of such indebtedness. The Holder
acknowledges that this Award is additional collateral and subject to the terms of any loan
arrangement or advance made by the Company (or an Affiliate thereof) to the Holder.




     Section 3.13 The Plan



          The Plan is incorporated in this Agreement by reference and together with this Agreement sets
forth the terms and conditions of the Restricted Stock. In the event of any conflict or
inconsistency



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between the Plan and this Agreement, the Plan shall govern and this Agreement shall
be interpreted to minimize or eliminate any such conflict or inconsistency.




          IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.




	 	 	 	 	 
	 	WEBMD HEALTH CORP.,

a Delaware corporation

 	 
	 	By:  	
 	 
	 	 	Its: _________________________________________	 
	 	
HOLDER: 	 
	 	
 	 



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ELECTION UNDER SECTION 83(b)

OF THE INTERNAL REVENUE CODE OF 1986




          The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code
of 1986, as amended, to include in gross income for [20___] the amount of any compensation taxable
in connection with the taxpayer’s receipt of the property described below:




          1. The name, address, taxpayer identification number and taxable year of the undersigned are:




	 	 	 
	TAXPAYER’S NAME:
	 	 
	 

	 	 
	 
	SPOUSE’S NAME:
	 	 
	 

	 	 
	 
	TAXPAYER’S SOCIAL SECURITY NO.:
	 	 
	 

	 	 
	 
	SPOUSE’S SOCIAL SECURITY NO.:
	 	 
	 

	 	 
	 
	TAXABLE YEAR:

	 	Calendar Year [20  ]
	 

	 	 
	 
	ADDRESS:
	 	 
	 

	 	 





          2. The property which is the subject of this election is _________ shares of common stock
of WebMD Health Corp.




          3. The property was transferred to the undersigned on _________.




          4. The property is subject to the following restrictions: The shares of common stock are
subject to forfeiture if unvested as of the date of termination of employment and are
nontransferable until vested.




          5. The fair market value of the property at the time of transfer (determined without regard to
any restriction other than a restriction which by its terms will never lapse) is: $______ per share
x ______ shares = $______.




          6.
The undersigned paid $0.00 per share x _________ shares for the property transferred or a
total of $0.00.




          The undersigned has submitted a copy of this statement to the person for whom the services
were performed in connection with the undersigned’s receipt of the above-described property. The
undersigned taxpayer is the person performing the services in connection with the transfer of said
property.




 









 





          The undersigned will file this election with the Internal Revenue Service office to which s/he
files her/his annual income tax return not later than 30 days after the date of transfer of the
property. A copy of the election also will be furnished to the person for whom the services were
performed. Additionally, the undersigned will include a copy of the election with her/his income
tax return for the taxable year in which the property is transferred. The undersigned understands
that this election will also be effective as an election under Utah law.




	 	 	 	 	 	 	 
	Dated:

	 	 
	 	 
	 	 
	 

	 	 	 	 	 	Taxpayer






The undersigned spouse of taxpayer joins in this election.




	 	 	 	 	 	 	 
	Dated:

	 	 
	 	 
	 	 
	 

	 	 	 	 	 	Spouse of Taxpayer







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(ANNEX A TO WEBMD HEALTH CORP.

RESTRICTED STOCK AGREEMENT)




RESTRICTIVE COVENANTS AGREEMENT




1. Confidentiality.




     (a) Trade Secret and Proprietary Information. I understand and acknowledge that,
during the course of my employment with the Company and its Affiliates and as a result of my having
executed this Restricted Stock Agreement (“Agreement”), I will be granted access to valuable
information relating to the business of the Company and its Affiliates that provides the Company
and its Affiliates with a competitive advantage (or that could be used to the disadvantage of the
Company and its Affiliates by a Competitive Business (as defined herein), which is not generally
known by, nor easily learned or determined by, persons outside the Company and its Affiliates
(collectively “Trade Secret and Proprietary Information”). The term Trade Secret and Proprietary
Information shall include, but shall not be limited to: (a) specifications, manuals, software in
various stages of development; (b) customer and prospect lists, and details of agreements and
communications with customers and prospects; (c) sales plans and projections, product pricing
information, acquisition, expansion, marketing, financial and other business information and
existing and future products and business plans of the Company and its Affiliates; (d) sales
proposals, demonstrations systems, sales material; (e) research and development; (f) computer
programs; (g) sources of supply; (h) identity of specialized consultants and contractors and Trade
Secret and Proprietary Information developed by them for the Company and its Affiliates; (i)
purchasing, operating and other cost data; (j) special customer needs, cost and pricing data; (k)
employee information (including, but not limited to, personnel, payroll, compensation and benefit
data and plans); and (l) patient information, including without limitation Protected Health
Information as defined in 45 C.F.R. 164.50, including all such information recorded in manuals,
memoranda, projections, reports, minutes, plans, drawings, sketches, designs, formula books, data,
specifications, software programs and records, whether or not legended or otherwise identified by
the Company and its Affiliates as Trade Secret and Proprietary Information, as well as such
information that is the subject of meetings and discussions and not recorded. Trade Secret and
Proprietary Information shall not include such information that I can demonstrate (i) is generally
available to the public (other than as a result of a disclosure by me), (ii) was disclosed to me by
a third party under no obligation to keep such information confidential or (iii) was known by me
prior to, and not as a result of, my employment or anticipated employment with the Company or its
Affiliates.



     (b) Duty of Confidentiality. I agree at all times, both during and after my
employment with the Company and its Affiliates, to hold all of the Trade Secret and Proprietary
Information in a fiduciary capacity for the benefit of the Company and its Affiliates and to
safeguard all such Trade Secret and Proprietary Information. I also agree that I will not directly
or indirectly disclose or use any such Trade Secret and Proprietary Information to any third person
or entity outside the Company and its Affiliates, except as may be necessary in the good faith
performance of my duties for the Company and its Affiliates. I further agree that, in addition to
enforcing this restriction, the Company and its Affiliates may have other rights and remedies under
the common law or applicable statutory laws relating to the protection of trade secrets.
Notwithstanding anything in this Agreement to the contrary, I understand that I may disclose the
Trade Secret and Proprietary Information to the extent required by applicable laws or governmental
regulations or judicial or regulatory process, provided that I give the Company prompt notice of
any and all such requests for disclosure so that it has ample opportunity to take all necessary or
desired action, to avoid disclosure.



     (c) Company Property. I acknowledge that: (i) all Trade Secret and Proprietary
Information of the Company and its Affiliates, (ii) computers, and computer-related hardware and
software, cell phones, beepers and any other equipment provided to me by the Company, and (iii) all
documents I create or receive in connection with my employment with the Company, belong to the
Company, or such Affiliate, as applicable, and not to me personally (collectively, “Company
Property”). Such documents include, without limitation and by way of non-exhaustive example only:
papers, files, memoranda, notes, correspondence, lists, e-mails, reports, records, data, research,
proposals, specifications, models, flow charts, schematics, tapes, printouts, designs, graphics,
drawings, photographs, abstracts, summaries, charts, graphs, notebooks, investor lists,
customer/client lists, and all other compilations of information, regardless of how such
information may be recorded and whether in printed form or on a computer or magnetic disk or in any
other medium. I agree to return all Company Property (including all copies) to the Company
immediately upon any termination of my employment, and further agree that, during and after my
employment with the Company, I will not, under any circumstances, without the Company’s specific
written authorization in each instance, directly or indirectly disclose Company Property or any
information contained in Company Property to anyone outside the Company, or otherwise use Company
Property for any purpose other than the advancement of the Company’s interests.



 









 





     (d) Unfair Competition. I acknowledge that the Company has a compelling business interest
in preventing unfair competition stemming from the intentional or inadvertent use or disclosure of
the Company’s Trade Secret and Proprietary Information and Company Property.



     (e) Investors, Other Third-Parties, and Goodwill. I acknowledge that all
third-parties (e.g., customers, vendors, and advertisers) I service or propose to service while
employed by the Company are doing business with the Company and not me personally, and that, in the
course of dealing with such third-parties, the Company establishes goodwill with respect to each
such third-party that is created and maintained at the Company’s expense (“Third-Party Goodwill”).
I also acknowledge that, by virtue of my employment with the Company, I have gained or will gain
knowledge of the business needs of, and other information concerning, third-parties, and that if
such information were used to solicit or service any such third-parties on my own behalf or on
behalf of a Competitive Business (as defined herein), the Company would be competitively
disadvantaged.



     (f) Intellectual Property and Inventions. I acknowledge that all developments,
including, without limitation, the creation of new products, conferences, training/seminars,
publications, programs, methods of organizing information, inventions, discoveries, concepts,
ideas, improvements, patents, trademarks, trade names, copyrights, trade secrets, designs, works,
reports, computer software, flow charts, diagrams, procedures, data, documentation, and writings
and applications thereof relating to the past, present, or future business of the Company that I,
alone or jointly with others, may have discovered, conceived, created, made, developed, reduced to
practice, or acquired during my employment with the Company and its Affiliates (collectively,
“Developments”) are works made for hire and shall remain the sole and exclusive property of the
Company or such Affiliate, as applicable, and I hereby assign to the Company or such Affiliate all
of my rights, titles, and interest in and to all such Developments, if any. I agree to disclose to
the Company promptly and fully all future Developments and, at any time upon request and at the
expense of the Company, to execute, acknowledge, and deliver to the Company all instruments that
the Company shall prepare, to give evidence, and to take any and all other actions that are
necessary or desirable in the reasonable opinion of the Company to enable the Company to file and
prosecute applications for, and to acquire, maintain, and enforce, all letters patent, trademark
registrations, or copyrights covering the Developments in all countries in which the same are
deemed necessary by the Company. All data, memoranda, notes, lists, drawings, records, files,
investor and client/customer lists, supplier lists, and other documentation (and all copies
thereof) made or compiled by me or made available to me concerning the Developments or otherwise
concerning the past, present, or planned business of the Company are Company Property, and will be
delivered to the Company immediately upon the termination of my employment with the Company.



2. Covenant Not to Compete with the Company.




     (a) I acknowledge that the business of the Company can be conducted any where in the world and
is not limited to a geographic scope or region, that its products, programs and services are
marketed throughout the United States, Canada and other geographic regions throughout the world,
that the Company competes in nearly all of its business activities with other individuals or
entities that are, or could be, located in nearly any part of the world and that the nature of my
services, position, and expertise are such that I am capable of competing with the Company from
nearly any location in the world.



     (b) Accordingly, in order to protect the Company’s Trade Secret and Proprietary Information
and Third-Party Goodwill, I acknowledge and agree that during my employment with the Company and
for a period of one year after the date my employment with the Company is terminated for
any reason (the “Restricted Period”), I will not, without the Company’s express written permission,
directly or indirectly (including through the Internet), own, control, manage, operate, participate
in, be employed by, or act for or on behalf of (as principal, agent, employee, consultant, director
or otherwise), any “Competitive Business” (as defined herein) located anywhere within the
geographic boundaries of the United States and Canada.



     (c) For purposes of this Agreement “Competitive Business” will mean: (i) any enterprise
engaged in developing, selling or providing (via the internet or other means) health or wellness
information, decision support tools or services or applications and/or communication services,
directly or indirectly, to consumers, health and benefit plan members or employees or healthcare
professionals, including but not limited to products or services that provide information on
diseases,



2









 







conditions or treatments, store health care information, assess personal health status, and/or
assist in making informed benefit, provider or treatment choices; and (ii) any enterprise engaged
in any other type of business in which the Company or one of its Affiliates is also engaged, or
plans to be engaged, so long as I am directly involved in such business or planned business on
behalf of the Company or one of its Affiliates. Notwithstanding the foregoing, I understand that I
may have an interest consisting of publicly traded securities constituting less than 1 percent of
any class of publicly traded securities in any public company engaged in a Competitive Business, so
long as I am not employed by, do not consult with, or become a director of or otherwise engage in
any activities for, such company.


3. Non-Solicitation of Employees, Customers. In order to protect the Company’s Trade
Secret and Proprietary Information and Third-Party Goodwill, during the Restricted Period, I will
not, without the Company’s express written permission, directly or indirectly:




     (a) solicit, induce, hire, engage, or attempt to hire or engage any employee or independent
contractor of the Company or its Affiliates, or in any other way interfere with the Company’s, or
such Affiliate’s, employment or contractual relations with any of its employees or independent
contractors, nor will I solicit, induce, hire, engage or attempt to hire or engage any individual
who was an employee of the Company or an Affiliate at any time during the one (1) year period
immediately prior to the termination of my employment with the Company; and



     (b) contact, call upon, encourage or solicit, on behalf of a Competitive Business, any
existing or prospective client, or customer of the Company or any of its Affiliates who I serviced,
or otherwise developed a relationship with, as a result of my employment with the Company, nor will
I attempt to divert or take away from the Company or such Affiliate the business of any such client
or customer.


4. Injunctive Remedies. I acknowledge and agree that the restrictions contained in this
Agreement are reasonably necessary to protect the legitimate business interests of the Company, and
that any violation of any of the restrictions will result in immediate and irreparable injury to
the Company for which monetary damages will not be an adequate remedy. I further acknowledge and
agree that if any such restriction is violated, the Company will be entitled to immediate relief
enjoining such violation (including, without limitation, temporary and permanent injunctions, a
decree for specific performance, and an equitable accounting of earnings, profits, and other
benefits arising from such violation) in any court having jurisdiction over such claim, without the
necessity of showing any actual damage or posting any bond or furnishing any other security, and
that the specific enforcement of the provisions of this Agreement will not diminish my ability to
earn a livelihood or create or impose upon me any undue hardship. I also agree that any request
for such relief by the Company shall be in addition to, and without prejudice to, any claim for
monetary damages that the Company may elect to assert. In addition, the Restricted Period shall be
extended for a period of time equal to the period of time during which I breached the restrictions
contained herein.



5. Severability Provision. I acknowledge and agree that the restrictions imposed upon me
by the terms, conditions, and provisions of this Agreement are fair, reasonable, and reasonably
required for the protection of the Company. In the event that any part of this Agreement is deemed
invalid, illegal, or unenforceable, all other terms, conditions, and provisions of this Agreement
shall nevertheless remain in full force and effect. In the event that the provisions of any of
Sections 1, 2, or 3 of this Agreement relating to the geographic area of restriction, the length of
restriction or the scope of restriction shall be deemed to exceed the maximum area, length or scope
that a court of competent jurisdiction would deem enforceable, said area, length or scope shall,
for purposes of this Agreement, be deemed to be the maximum area, length of time or scope that such
court would deem valid and enforceable, and that such court has the authority under this Agreement
to rewrite (or “blue-pencil”) the restriction(s) at-issue to achieve this intent.



6. Non-Waiver. Any waiver by the Company of my breach of any term, condition, or provision
of this Agreement shall not operate or be construed as a waiver of the Company’s rights upon any
subsequent breach.



7. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, I HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH


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ANY LITIGATION ARISING OUT OF, UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATED TO THIS AGREEMENT.
THIS INCLUDES, WITHOUT LIMITATION, ANY LITIGATION CONCERNING ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN), OR ACTION OF THE COMPANY OR ME, OR ANY EXERCISE BY
THE COMPANY OR ME OF OUR RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS
AGREEMENT. I FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE COMPANY TO
ISSUE AND ACCEPT THIS AGREEMENT.



8. Notice to Future Employers. I will inform each new employer, prior to accepting
employment, of the existence and details of the covenants contained in this Annex A and will
provide each such employer with a copy of this Annex.



9. Assignment. The Company shall have the right to assign its rights and obligations
under this Annex A without my consent. I acknowledge that I may not assign my obligations herein.





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