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 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 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)
EXECUTIVE ACKNOWLEDGES AND RECOGNIZES THE HIGHLY COMPETITIVE
NATURE OF THE BUSINESSES OF THE COMPANY AND ITS AFFILIATES AND ACCORDINGLY
AGREES THAT FOR ONE YEAR FOLLOWING A TERMINATION EVENT, EXECUTIVE WILL NOT,
WHETHER ON EXECUTIVE'S OWN BEHALF OR ON BEHALF OF OR IN CONJUNCTION WITH ANY
PERSON, COMPANY, BUSINESS ENTITY OR OTHER ORGANIZATION WHATSOEVER, DIRECTLY OR
INDIRECTLY, EITHER (I) ENGAGE IN ANY BUSINESS THAT IS A COMPETITIVE BUSINESS OR
(II) ENTER THE EMPLOY OF, OR RENDER ANY SERVICES TO, ANY PERSON OR ENTITY (OR
ANY DIVISION OF ANY PERSON OR ENTITY) THAT ENGAGES IN A COMPETITIVE BUSINESS.
FOR PURPOSES OF THIS AGREEMENT, THE TERM "COMPETITIVE BUSINESS" SHALL INCLUDE
ANY PERSON OR ENTITY THAT COMPETES WITH ANY BUSINESS OF THE COMPANY OR ITS
AFFILIATES AT THE TIME OF THE TERMINATION EVENT (INCLUDING, WITHOUT LIMITATION,
BUSINESSES THAT THE COMPANY OR ITS AFFILIATES HAVE SPECIFIC PLANS AT THE TIME OF
THE TERMINATION EVENT TO CONDUCT IN THE FUTURE, OF WHICH PLANS EXECUTIVE IS
AWARE AT THAT TIME) IN ANY GEOGRAPHICAL AREA WHERE THE COMPANY OR ITS AFFILIATES
MANUFACTURE, SELL, LEASE, RENT, LICENSE, OR OTHERWISE PROVIDE THEIR PRODUCTS OR
SERVICES (INCLUDING, WITHOUT LIMITATION, GEOGRAPHICAL AREAS WHERE THE COMPANY OR
ITS AFFILIATES HAVE SPECIFIC PLANS AT THE TIME OF THE TERMINATION EVENT TO
ENGAGE IN ONE OR MORE SUCH ACTIVITIES, OF WHICH PLANS EXECUTIVE IS AWARE AT THAT
TIME).
NOTWITHSTANDING THE PRECEDING SENTENCE, A PERSON OR ENTITY SHALL BE
TREATED AS A COMPETITIVE BUSINESS FOR PURPOSES OF THIS AGREEMENT ONLY IF THE
COMPANY INCLUDES SUCH PERSON OR ENTITY (WHICH, UNLESS OTHERWISE SPECIFIED BY THE
COMPANY, SHALL BE CONSIDERED TO INCLUDE ALL OF THE SUBSIDIARIES AND OTHER
AFFILIATES OF SUCH LISTED PERSON OR ENTITY) ON A LIST TO BE PREPARED BY THE
COMPANY AT OR SHORTLY AFTER THE TIME OF THE TERMINATION EVENT, SUCH LIST IS
PROVIDED TO EXECUTIVE, AND SUCH LIST INCLUDES NOT MORE THAN 15 PERSONS OR
ENTITIES.
Notwithstanding any provision in this Agreement to the contrary, it shall not be
a violation of this Section 5.4(c) if any one or more of the following shall
occur:
9
(I)
EXECUTIVE MAY OWN, DIRECTLY OR INDIRECTLY, SOLELY AS A PASSIVE
INVESTMENT, SECURITIES OF ANY PERSON ENGAGED IN A COMPETITIVE BUSINESS, WHICH
SECURITIES ARE PUBLICLY TRADED ON A NATIONAL OR REGIONAL STOCK EXCHANGE OR ON
THE OVER-THE-COUNTER MARKET, IF EXECUTIVE (A) IS NOT A CONTROLLING PERSON OF, OR
A MEMBER