the votes cast in
person or by proxy at such meeting."
5.
NON-COMPETITION AND NON-SOLICITATION.
(I)
THE INTRODUCTORY CLAUSE OF PARAGRAPH
(A) OF SECTION 9 OF THE EMPLOYMENT AGREEMENT IS HEREBY DELETED AND REPLACED IN
ITS ENTIRETY WITH THE FOLLOWING:
"During the term of the Executive's employment and/or service on the Board of
Directors of the Company, and for a period of two (2) years after the
termination of his service on the Board of Directors of the Company, the
Executive will not directly or indirectly:"
MR. RODNYANSKY ACKNOWLEDGES HIS OBLIGATIONS TO COMPLY WITH THE NON-COMPETITION
AND NON-SOLICITATION PROVISIONS SET FORTH IN SECTION 9 OF THE EMPLOYMENT
AGREEMENT, AS SO AMENDED, SHALL REMAIN IN FULL FORCE AND EFFECT FOLLOWING THE
SEPARATION DATE.
6.
PROPRIETARY INFORMATION.
MR. RODNYANSKY ACKNOWLEDGES HIS OBLIGATION TO KEEP CONFIDENTIAL ALL NON-PUBLIC
INFORMATION CONCERNING THE GROUP WHICH HE ACQUIRED DURING THE COURSE OF HIS
EMPLOYMENT WITH THE COMPANY, AS STATED MORE FULLY IN SECTION 10 OF THE
EMPLOYMENT AGREEMENT, WHICH REMAINS IN FULL FORCE AND EFFECT.
MR. RODNYANSKY
FURTHER ACKNOWLEDGES AND AGREES THAT SUCH OBLIGATION SHALL CONTINUE IN FULL
FORCE AND EFFECT BOTH FROM THE DATE HEREOF THROUGH THE SEPARATION DATE AND AFTER
THE SEPARATION DATE.
7.
RETURN OF COMPANY PROPERTY.
MR. RODNYANSKY AGREES TO RETURN ON OR BEFORE THE SEPARATION DATE ALL EQUIPMENT
AND PROPERTY BELONGING TO THE GROUP INCLUDING, BUT NOT LIMITED TO, ANY GROUP
CREDIT CARD (AND TO BE RESPONSIBLE FOR ALL NON-BUSINESS RELATED EXPENSES).
NOTWITHSTANDING THE FOREGOING, MR. RODNYANSKY MAY RETAIN THE LUXURY SEDAN
PROVIDED FOR BY SECTION 5(F) OF THE EMPLOYMENT AGREEMENT FOLLOWING THE
SEPARATION DATE, AND SHALL RETURN SUCH CAR ON OR BEFORE OCTOBER 31, 2009.
2
8.
RELEASE.
(I)
RELEASE BY EXECUTIVE.
(a)
In consideration of the payment of the
Separation Benefits, Mr. Rodnyansky hereby fully, forever, irrevocably and
unconditionally releases, remises and discharges the Company, and its officers,
directors, stockholders, corporate affiliates, subsidiaries, parent companies,
agents and employees (each in their individual and corporate capacities)
(hereinafter, the "Released Parties") from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys' fees and costs), of every kind and nature which
Mr. Rodnyansky ever had, could have had or now has against the Released Parties,
whether known or unknown, suspected or unsuspected, under or in connection with
the Employment Agreement.
(b)
Notwithstanding any provision of this
Release to the contrary,
(i)
the Indemnification Agreement between
the Company and Mr. Rodnyansky dated as of July 22, 2005 shall continue in full
force and effect and, subject to the terms and conditions thereof,
Mr. Rodnyansky shall be entitled to all rights and protections afforded to him
by such agreement; and
(ii)
this Release will in no way affect
Mr. Rodnyansky's rights existing as of the Separation Date under the Stock
Option Agreement dated as of July 14, 2006 and the Share Appreciation Rights
Agreement dated as of September