ANY LITIGATION TO PURSUE EMPLOYEE CLAIMS RELEASED UNDER EITHER THE INITIAL
RELEASE OR THE BRING-DOWN RELEASE PROVIDED FOR IN SECTION 4.A.
THIS COVENANT
DOES NOT APPLY TO LITIGATION CHALLENGING THE VALIDITY OF SECTION 4.A.
EXCLUDED
FROM THIS COVENANT ARE ANY CLAIMS WHICH CANNOT BE WAIVED BY LAW, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO FILE A CHARGE WITH OR PARTICIPATE IN ANY
INVESTIGATION CONDUCTED BY THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ("EEOC")
OR ANY STATE OR LOCAL AGENCY.
EMPLOYEE AGREES TO WAIVE, HOWEVER, HIS RIGHT TO
ANY MONETARY RECOVERY SHOULD THE EEOC OR ANY STATE OR LOCAL AGENCY PURSUE ANY
CLAIMS ON EMPLOYEE'S BEHALF.
FURTHER, EMPLOYEE AGREES TO PAY
4
COMPANY'S ATTORNEYS' FEES IF EMPLOYEE BREACHES THE COVENANT NOT TO SUE CONTAINED
IN THIS SECTION 4.B.
C.
NON-COMPETE RESTRICTIONS.
IN EXCHANGE FOR THE COMPANY'S
AGREEMENTS, COVENANTS AND PROMISES SET FORTH IN SECTION 3 OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, COMPANY'S AGREEMENT TO EXTEND THE EXERCISE PERIOD
OF THE VESTED STOCK OPTIONS, WHICH EMPLOYEE ACKNOWLEDGES ARE ADEQUATE
CONSIDERATION FOR HIS OBLIGATIONS IN THIS SECTION 4.C, EMPLOYEE AGREES THAT
EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, ON BEHALF OF HIMSELF OR A THIRD
PARTY, FOR A PERIOD OF EIGHTEEN (18) MONTHS FOLLOWING THE SEPARATION DATE
("RESTRICTED PERIOD"), DO ANY OF THE FOLLOWING:
1.
OWN, MANAGE, OPERATE, JOIN, CONTROL, CONSULT WITH, PARTICIPATE IN
THE OWNERSHIP, OPERATION OR CONTROL OF, BE EMPLOYED BY, OR BE CONNECTED IN ANY
MANNER WITH ANY PERSON OR ENTITY WHICH MANUFACTURES, SELLS, SOLICITS, OFFERS,
OFFERS TO PROVIDE, OR PROVIDES ANY COMPETITIVE PRODUCTS AND SERVICES, UNLESS
SUCH EMPLOYMENT IS BY A LARGE DIVERSIFIED ENTITY AND ON A BASIS SUCH THAT
EMPLOYEE WILL HAVE NO INVOLVEMENT WHATSOEVER WITH THE PROVISION OF COMPETITIVE
PRODUCTS AND SERVICES DURING THE RESTRICTED PERIOD.
THIS RESTRICTION APPLIES
WORLDWIDE, AND EMPLOYEE AGREES AND ACKNOWLEDGES A WORLDWIDE RESTRICTION IS
REASONABLE IN SCOPE GIVEN THE COMPANY'S WORLDWIDE TERRITORY;
2.
SOLICIT CUSTOMERS OR THE BUSINESS OF ANY PERSON, FIRM,
CORPORATION OR OTHER ENTITY WHO IS OR WHO WAS A CUSTOMER OR ACCOUNT OF COMPANY
OR ANY OF COMPANY'S AFFILIATES AND SUBSIDIARIES WHILE EMPLOYEE WAS EMPLOYED BY
COMPANY, INCLUDING BUT NOT LIMITED TO RESELLERS OR DISTRIBUTORS OF COMPANY
PRODUCTS OR SERVICES, OR ACCEPT BUSINESS FROM ANY PERSON, FIRM, CORPORATION OR
OTHER ENTITY WHO IS OR WHO WAS A CUSTOMER OR ACCOUNT OF COMPANY OR ANY OF
COMPANY'S AFFILIATES AND SUBSIDIARIES WHILE EMPLOYEE WAS EMPLOYED BY COMPANY,
FOR THE PURPOSE OF SELLING TO SUCH CUSTOMER OR ACCOUNT ANY COMPETITIVE PRODUCT
OR SERVICE; AND
3.
INDUCE OR SEEK TO INDUCE ANY PERSON EMPLOYED WITH COMPANY OR ITS
AFFILIATES AS OF THE SEPARATION DATE TO DISCONTINUE THAT PERSON'S EMPLOYMENT
WITH COMPANY AND/OR SOLICIT, RECRUIT, HIRE OR PARTICIPATE IN ANY OTHER PERSON'S
OR ENTITY'S EFFORT TO HIRE AN EMPLOYEE OF COMPANY.
D.
COMPANY PROPERTY.
UNLESS OTHERWISE SET FORTH HEREIN, EMPLOYEE
WILL RETURN TO COMPANY ALL PROPERTY BELONGING TO COMPANY IMMEDIATELY UPON THE
EXECUTION OF THIS AGREEMENT, WHETHER SUCH PROPERTY IS CURRENTLY ON OR OFF THE
PREMISES OF COMPANY, INCLUDING, WITHOUT LIMITATION, ANY AND ALL COMPUTER
HARDWARE OR