COVERED TIME.
NOTWITHSTANDING THE FOREGOING, NOTHING IN
THIS AGREEMENT SHALL PRECLUDE THE COMPANY (OR ITS EXECUTIVES AND MEMBERS OF THE
BOARD OF DIRECTORS) OR EXECUTIVE FROM MAKING WHAT IT OR HE REASONABLY BELIEVES
IN GOOD FAITH TO BE TRUTHFUL STATEMENTS THAT ARE REQUIRED BY APPLICABLE LAW,
REGULATION OR LEGAL PROCESS OR IN CONNECTION WITH ANY INVESTIGATION BY THE
COMPANY OR ANY GOVERNMENTAL AUTHORITY OR ARE REASONABLY REQUIRED TO DESCRIBE THE
CONDUCT, DECISIONS, OR POLICIES OF THE COMPANY OR ANY OF ITS AFFILIATES, OR
THEIR RESPECTIVE BUSINESSES, OFFICERS, DIRECTORS OR EMPLOYEES.
5.5
NO OTHER OBLIGATIONS.
EXECUTIVE REPRESENTS THAT EXECUTIVE IS NOT
PRECLUDED OR LIMITED IN EXECUTIVE'S ABILITY TO UNDERTAKE OR PERFORM THE DUTIES
DESCRIBED HEREIN BY ANY
18
CONTRACT, AGREEMENT OR RESTRICTIVE COVENANT.
EXECUTIVE COVENANTS THAT EXECUTIVE
SHALL NOT EMPLOY THE TRADE SECRETS OR PROPRIETARY INFORMATION OF ANY OTHER
PERSON IN CONNECTION WITH EXECUTIVE'S EMPLOYMENT BY THE COMPANY WITHOUT SUCH
PERSON'S AUTHORIZATION.
5.6
FORFEITURE OF OUTSTANDING EQUITY AWARDS.
THE PROVISIONS OF
SECTION 4 NOTWITHSTANDING, IF A COURT OF COMPETENT JURISDICTION OR AN ARBITRAL
TRIBUNAL DETERMINES THAT EXECUTIVE (X) WILLFULLY AND MATERIALLY BREACHED
SECTIONS 5.1, 5.2, 5.3, 5.4 OR 5.8 AND (Y) FAILED TO CURE SUCH BREACH WITHIN 30
DAYS AFTER HIS RECEIPT OF WRITTEN NOTICE FROM THE BOARD OF DIRECTORS, ATTACHING
A COPY OF A RESOLUTION DULY ADOPTED BY THE BOARD OF DIRECTORS BY A VOTE OF
DIRECTORS CONSTITUTING A MAJORITY OF THE BOARD OF DIRECTORS (EXCLUDING
EXECUTIVE) AT A MEETING OF THE BOARD OF DIRECTORS AT WHICH A QUORUM IS
PHYSICALLY PRESENT IN PERSON, IN WHICH RESOLUTION THE BOARD OF DIRECTORS SETS
FORTH SUCH BREACH IN REASONABLE DETAIL AND EXPRESSLY ELECTS THE REMEDY PROVIDED
IN THIS SECTION 5.6, AND WHICH NOTICE IS DELIVERED TO EXECUTIVE WITHIN 90 DAYS
AFTER THE COMPANY FIRST HAD KNOWLEDGE OF SUCH BREACH (THE FOREGOING,
COLLECTIVELY, A "SECTION 5.6 NOTICE OF BREACH") (AND WHICH CURE BY EXECUTIVE, IN
THE CASE OF A BREACH OF SECTION 5.4, MAY BE EFFECTED, WITHOUT LIMITATION, BY
CORRECTION OR RETRACTION OF THE DISPARAGING STATEMENTS), THEN ALL OPTIONS,
RESTRICTED STOCK UNITS AND OTHER EQUITY AWARDS (WHETHER GRANTED PRIOR TO,
CONTEMPORANEOUSLY WITH, OR SUBSEQUENT TO THIS AGREEMENT) GRANTED BY THE COMPANY
AND HELD BY EXECUTIVE OR A TRANSFEREE OF EXECUTIVE SHALL BE IMMEDIATELY
FORFEITED AND THEREUPON SUCH EQUITY AWARDS SHALL BE CANCELLED, SUCH FORFEITURE
TO BE EFFECTIVE AT THE LATER OF THE TIME OF SUCH FAILURE TO COMPLY OR
EXECUTIVE'S TERMINATION OF EMPLOYMENT.
IF A COURT OF COMPETENT JURISDICTION OR
ARBITRAL TRIBUNAL FINDS THAT THE COMPANY IS ENTITLED TO CAUSE THE FORFEITURE OF
EXECUTIVE'S EQUITY AWARDS IN ACCORDANCE WITH THE FOREGOING TERMS OF THIS
SECTION 5.6, EXECUTIVE SHALL BE REQUIRED TO FORFEIT SUCH EQUITY AWARDS
IMMEDIATELY.
IF ANY EQUITY AWARD IS EXERCISED OR VESTS AFTER DELIVERY OF THE
SECTION 5.6 NOTICE OF BREACH AND IF SUCH FORFEITURE SUBSEQUENTLY OCCURS PURSUANT
TO THE FOREGOING TERMS OF THIS SECTION 5.6, EXECUTIVE SHALL BE REQUIRED TO
RETURN TO THE COMPANY ALL SHARES ACQUIRED UPON SUCH EXERCISE OR VESTING;
PROVIDED FURTHER THAT IF EXECUTIVE HAS SOLD