AGREEMENT, THE COMPANY SHALL MAKE AN IRREVOCABLE CONTRIBUTION OF AN
AMOUNT EQUAL TO THE DELAYED PAYMENT TO A GRANTOR TRUST ESTABLISHED CONSISTENT
WITH THE TERMS OF REVENUE PROCEDURE 92-64, 33 I.R.B. 11 (8/17/92) (THE "RABBI
TRUST") WITH A FINANCIAL INSTITUTION APPROVED BY THE EMPLOYEE, WHICH APPROVAL
WILL NOT BE WITHHELD UNREASONABLY, SERVING AS THE THIRD-PARTY TRUSTEE THEREOF,
UNDER THE TERMS OF WHICH THE ASSETS OF THE TRUST MAY BE USED, IN THE ABSENCE OF
THE COMPANY'S INSOLVENCY, SOLELY FOR PURPOSES OF FULFILLING THE COMPANY'S
OBLIGATION TO PAY THE DELAYED PAYMENT TO EMPLOYEE IN COMPLIANCE WITH
SECTION 409A(A)(2)(B)(I) OF THE CODE.
THE COMPANY'S OBLIGATION TO MAKE THE
CONTRIBUTION TO THE RABBI TRUST UNDER THE IMMEDIATELY PRECEDING SENTENCE SHALL
ARISE ON THE DATE THAT THE RELEASE AGREEMENT REQUIRED UNDER SECTION 3.3 OR
SECTION 3.4 BECOMES EFFECTIVE AND SUCH CONTRIBUTION SHALL BE MADE BY NO LATER
THAN THE TENTH BUSINESS DAY (EXCLUDING FEDERAL HOLIDAYS) AFTER SUCH EFFECTIVE
DATE.
EMPLOYEE SHALL BE PERMITTED TO DIRECT THE TRUSTEE HOW TO INVEST THE TRUST
ASSETS HELD ON EMPLOYEE'S BEHALF.
THE COMPANY SHALL BEAR ALL COSTS, EXPENSES
AND FEES, INCLUDING LEGAL AND TRUSTEE FEES, OF ESTABLISHING AND MAINTAINING THE
RABBI TRUST; PROVIDED, HOWEVER, THAT ALL BROKERAGE FEES, INVESTMENT TRANSACTION
FEES AND APPLICABLE TAXES SHALL BE PAID FROM THE TRUST ASSETS.
ARTICLE IV
RESTRICTIVE COVENANTS
4.1.
EMPLOYEE'S ACKNOWLEDGMENT.
EMPLOYEE ACKNOWLEDGES THAT:
(A)
THE COMPANY IS AND WILL BE ENGAGED IN THE BUSINESS DURING THE
EMPLOYMENT PERIOD AND THEREAFTER;
(B)
EMPLOYEE IS ONE OF A LIMITED NUMBER OF PERSONS WHO WILL BE
DEVELOPING THE BUSINESS;
(C)
EMPLOYEE WILL OCCUPY A POSITION OF TRUST AND CONFIDENCE WITH THE
COMPANY AFTER THE DATE OF THIS AGREEMENT, AND DURING SUCH PERIOD AND EMPLOYEE'S
EMPLOYMENT UNDER THIS AGREEMENT, EMPLOYEE WILL BECOME FAMILIAR WITH THE
COMPANY'S TRADE SECRETS AND WITH OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION
CONCERNING THE COMPANY AND THE BUSINESS;
11
(D)
THE AGREEMENTS AND COVENANTS CONTAINED IN THIS ARTICLE IV ARE
ESSENTIAL TO PROTECT THE COMPANY AND THE GOODWILL OF THE BUSINESS AND ARE A
CONDITION PRECEDENT TO THE COMPANY ENTERING INTO THIS AGREEMENT;
(E)
EMPLOYEE'S EMPLOYMENT WITH THE COMPANY HAS SPECIAL, UNIQUE AND
EXTRAORDINARY VALUE TO THE COMPANY AND THE COMPANY WOULD BE IRREPARABLY DAMAGED
IF EMPLOYEE WERE TO PROVIDE SERVICES TO ANY PERSON OR ENTITY IN VIOLATION OF THE
PROVISIONS OF THIS AGREEMENT;
(F)
EMPLOYEE HAS MEANS TO SUPPORT HIMSELF AND HIS DEPENDENTS OTHER
THAN BY ENGAGING IN THE BUSINESS, OR A BUSINESS SIMILAR TO THE BUSINESS, AND THE
PROVISIONS OF THIS ARTICLE IV WILL NOT IMPAIR SUCH ABILITY; AND
(G)
FOR PURPOSES OF THIS ARTICLE IV, THE TERM "COMPANY" SHALL INCLUDE
THE COMPANY, THE PARENT AND ANY OF THEIR RESPECTIVE SUBSIDIARIES AND AFFILIATES.
4.2.
NON-COMPETE.
EMPLOYEE HEREBY AGREES THAT FOR A PERIOD COMMENCING
ON THE DATE HEREOF AND ENDING ON THE TERMINATION DATE, AND THEREAFTER, THROUGH
THE LATER OF (A) THE PERIOD ENDING ON THE FIRST ANNIVERSARY OF THE TERMINATION
DATE OR (B) THE PERIOD ENDING AT THE CONCLUSION OF THE SEVERANCE PERIOD
(COLLECTIVELY, THE "RESTRICTIVE PERIOD"), HE