(A)
FOR TWO YEARS FOLLOWING A TERMINATION EVENT, EXECUTIVE AGREES NOT
TO PERSONALLY SOLICIT ANY OF THE EMPLOYEES EITHER OF THE PARENT COMPANY OR OF
ANY ENTITY IN WHICH THE PARENT COMPANY DIRECTLY OR INDIRECTLY POSSESSES THE
ABILITY TO DETERMINE THE VOTING OF 50% OR MORE OF THE VOTING SECURITIES OF SUCH
ENTITY (INCLUDING TWO-PARTY JOINT VENTURES IN WHICH EACH PARTY POSSESSES 50% OF
THE TOTAL VOTING POWER OF THE ENTITY) TO BECOME EMPLOYED ELSEWHERE OR
6
PROVIDE THE NAMES OF SUCH EMPLOYEES TO ANY OTHER COMPANY THAT EXECUTIVE HAS
REASON TO BELIEVE WILL SOLICIT SUCH EMPLOYEES.
(B)
FOLLOWING THE OCCURRENCE OF A TERMINATION EVENT, EXECUTIVE AGREES
TO CONTINUE TO SATISFY HIS/HER OBLIGATIONS UNDER THE TERMS OF THE PARENT
COMPANY'S STANDARD FORM OF AGREEMENT REGARDING CONFIDENTIAL INFORMATION AND
PROPRIETARY DEVELOPMENT PREVIOUSLY EXECUTED BY EXECUTIVE (OR ANY COMPARABLE
AGREEMENT SUBSEQUENTLY EXECUTED BY EXECUTIVE IN SUBSTITUTION OR SUPPLEMENT
THERETO).
(C)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALTHOUGH EXECUTIVE AND
THE PARENT COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN THIS SECTION 5.4 TO BE
REASONABLE, IF A FINAL JUDICIAL DETERMINATION IS MADE BY A COURT OF COMPETENT
JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER RESTRICTION CONTAINED IN
THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST EXECUTIVE, THE PROVISIONS
OF THIS AGREEMENT SHALL NOT BE RENDERED VOID BUT SHALL BE DEEMED AMENDED TO
APPLY AS TO SUCH MAXIMUM TIME OR TERRITORY AND TO SUCH MAXIMUM EXTENT AS SUCH
COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE ENFORCEABLE.
ALTERNATIVELY, IF
ANY COURT OF COMPETENT JURISDICTION FINDS THAT ANY RESTRICTION CONTAINED IN THIS
AGREEMENT IS UNENFORCEABLE, AND SUCH RESTRICTION CANNOT BE AMENDED SO AS TO MAKE
IT ENFORCEABLE, SUCH FINDING SHALL NOT AFFECT THE ENFORCEABILITY OF ANY OF THE
OTHER RESTRICTIONS CONTAINED HEREIN.
(D)
EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE PARENT COMPANY'S
REMEDIES AT LAW FOR A BREACH OR THREATENED BREACH OF ANY OF THE PROVISIONS OF
SECTION 5.4(A), (B) OR (C) WOULD BE INADEQUATE AND, IN RECOGNITION OF THIS FACT,
EXECUTIVE AGREES THAT, IN THE EVENT OF SUCH A BREACH OR THREATENED BREACH, IN
ADDITION TO ANY REMEDIES AT LAW, THE PARENT COMPANY, WITHOUT POSTING ANY BOND,
SHALL BE ENTITLED TO CEASE MAKING ANY PAYMENTS OR PROVIDING ANY BENEFIT
OTHERWISE REQUIRED BY THIS AGREEMENT AND, WITH RESPECT TO A BREACH OR THREATENED
BREACH OF SECTION 5.4(A) OR (B) ONLY, OBTAIN EQUITABLE RELIEF IN THE FORM OF
SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER, TEMPORARY OR PERMANENT
INJUNCTION, OR ANY OTHER EQUITABLE REMEDY THAT MAY THEN BE AVAILABLE.
4.4
RELEASE PRIOR TO RECEIPT OF BENEFITS.
UPON THE OCCURRENCE OF A
TERMINATION EVENT, AND AS A CONDITION TO THE RECEIPT OF ANY BENEFITS UNDER THIS
AGREEMENT ON ACCOUNT OF THE OCCURRENCE OF THE TERMINATION EVENT, EXECUTIVE
SHALL, AS OF THE DATE OF THE TERMINATION EVENT, EXECUTE A RELEASE SUBSTANTIALLY
IN THE FORM ATTACHED HERETO AS EXHIBIT A.
ARTICLE V
OTHER RIGHTS AND BENEFITS NOT AFFECTED
Nothing in the Agreement shall prevent or limit Executive's continuing or future
participation in any benefit, bonus, incentive or other plans, programs,