CONSISTENT WITH
THE OLDER WORKERS BENEFIT PROTECTION ACT AND ANY SIMILAR STATE LAW THAT IS
APPLICABLE.
THE AMOUNTS DESCRIBED IN SECTIONS 2.2 OR 3 (AS APPLICABLE) WILL BE
PAID IN A LUMP SUM, ON THE EIGHTH DAY FOLLOWING THE EMPLOYEE'S EXECUTION AND
DELIVERY OF THE RELEASE, PROVIDED THE RELEASE HAS NOT BEEN REVOKED BY THE
EMPLOYEE.
7
5.2.
TO THE EXTENT THE COMPLIANCE WITH REQUIREMENTS OF TREAS. REG.
§1.409A-3(I)(2) (OR ANY SUCCESSOR PROVISION) IS NECESSARY TO AVOID THE
APPLICATION OF AN ADDITIONAL TAX UNDER SECTION 409A OF THE CODE ON PAYMENTS DUE
TO THE EMPLOYEE UPON OR FOLLOWING SEPARATION FROM SERVICE, THEN NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT (OR ANY OTHERWISE APPLICABLE PLAN, POLICY,
AGREEMENT OR ARRANGEMENT), ANY SUCH PAYMENTS THAT ARE OTHERWISE DUE WITHIN SIX
MONTHS FOLLOWING THE EMPLOYEE'S SEPARATION FROM SERVICE WILL BE DEFERRED
(WITHOUT INTEREST) AND PAID TO THE EMPLOYEE IN A LUMP SUM IMMEDIATELY FOLLOWING
THAT SIX MONTH PERIOD.
6.
RESTRICTIVE COVENANTS.
AS CONSIDERATION FOR ALL OF THE PAYMENTS
TO BE MADE TO THE EMPLOYEE PURSUANT TO SECTIONS 2, 3, AND 4 OF THIS AGREEMENT,
THE EMPLOYEE AGREES TO BE BOUND BY THE RESTRICTIVE COVENANTS SET FORTH IN THIS
SECTION 6.
THE RESTRICTIVE COVENANTS WILL APPLY WITHOUT REGARD TO WHETHER ANY
TERMINATION OF THE EMPLOYEE'S EMPLOYMENT IS INITIATED BY THE COMPANY OR THE
EMPLOYEE, AND WITHOUT REGARD TO THE REASON FOR THAT TERMINATION.
6.1.
COVENANT NOT TO COMPETE.
THE EMPLOYEE COVENANTS
THAT, DURING THE RESTRICTED PERIOD, THE EMPLOYEE WILL NOT (EXCEPT IN HIS OR HER
CAPACITY AS AN EMPLOYEE OR DIRECTOR OF THE COMPANY OR WITH THE PRIOR CONSENT OF
THE COMPANY) DO ANY OF THE FOLLOWING, DIRECTLY OR INDIRECTLY, ANYWHERE IN THE
WORLD:
6.1.1.
ENGAGE OR PARTICIPATE IN ANY BUSINESS COMPETITIVE WITH
THE BUSINESS;
6.1.2.
BECOME INTERESTED (AS OWNER, STOCKHOLDER, LENDER,
PARTNER, CO-VENTURER, DIRECTOR, OFFICER, EMPLOYEE, AGENT OR CONSULTANT) IN ANY
PERSON, FIRM, CORPORATION, ASSOCIATION OR OTHER ENTITY ENGAGED IN ANY BUSINESS
COMPETITIVE WITH THE BUSINESS.
NOTWITHSTANDING THE FOREGOING, THE EMPLOYEE MAY
HOLD UP TO 4.9% OF THE OUTSTANDING SECURITIES OF ANY CLASS OF ANY
PUBLICLY-TRADED SECURITIES OF ANY COMPANY;
6.1.3.
ENGAGE IN ANY BUSINESS, OR SOLICIT OR CALL ON ANY
CUSTOMER, SUPPLIER, LICENSOR, LICENSEE, CONTRACTOR, AGENT, REPRESENTATIVE,
ADVISOR, STRATEGIC PARTNER, DISTRIBUTOR OR OTHER PERSON WITH WHOM THE COMPANY
SHALL HAVE DEALT OR ANY PROSPECTIVE CUSTOMER, SUPPLIER, LICENSOR, LICENSEE,
CONTRACTOR, AGENT, REPRESENTATIVE, ADVISOR, STRATEGIC PARTNER, DISTRIBUTOR OR
OTHER PERSON THAT THE COMPANY SHALL HAVE IDENTIFIED AND SOLICITED AT ANY TIME
DURING THE EMPLOYEE'S EMPLOYMENT BY THE COMPANY FOR A PURPOSE COMPETITIVE WITH
THE BUSINESS;
6.1.4.
INFLUENCE OR ATTEMPT TO INFLUENCE ANY EMPLOYEE,
CONSULTANT, CUSTOMER, SUPPLIER, LICENSOR, LICENSEE, CONTRACTOR, AGENT,
REPRESENTATIVE, ADVISOR, STRATEGIC PARTNER, DISTRIBUTOR OR OTHER PERSON TO
TERMINATE OR ADVERSELY MODIFY ANY WRITTEN OR ORAL AGREEMENT, ARRANGEMENT OR
COURSE OF DEALING WITH THE COMPANY; OR
6.1.5.
SOLICIT FOR EMPLOYMENT OR EMPLOY OR RETAIN (OR ARRANGE
TO HAVE ANY OTHER PERSON OR ENTITY EMPLOY OR RETAIN) ANY PERSON WHO HAS BEEN
EMPLOYED OR RETAINED BY THE COMPANY WITHIN THE 12 MONTHS PRECEDING THE