CUSTOMER OR
CLIENT OF THE COMPANY DURING THE ONE YEAR PERIOD FOLLOWING THE EMPLOYMENT
TERMINATION DATE ("COMPETITION"); PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 5 SHALL PREVENT EMPLOYEE FROM PERFORMING SERVICES FOR THE ACQUIRER OF
THE COMPANY'S [*] FOLLOWING A [*]; PROVIDED, FURTHER, THAT FOLLOWING HIS
TERMINATION OF EMPLOYMENT WITH THE COMPANY, EMPLOYEE SHALL BE PERMITTED TO WORK
FOR AN ENTITY IN COMPETITION WITH THE COMPANY WHOSE PRIMARY BUSINESS IS NOT
PROVIDING PRODUCTS OR SERVICES COMPETITIVE WITH THE PRODUCTS OR SERVICES OF THE
COMPANY, SO LONG EMPLOYEE DOES NOT ENGAGE IN A BUSINESS THAT MAKES SUCH ENTITY
IN COMPETITION WITH THE COMPANY.
NOTWITHSTANDING THE FOREGOING, EMPLOYEE MAY,
WITHOUT VIOLATING THIS SECTION 5, OWN, AS A PASSIVE INVESTMENT, SHARES OF
CAPITAL STOCK OF A PUBLICLY-HELD CORPORATION THAT ENGAGES IN COMPETITION WHERE
THE NUMBER OF SHARES OF SUCH CORPORATION'S CAPITAL STOCK THAT ARE OWNED BY
EMPLOYEE REPRESENT LESS THAN THREE PERCENT OF THE TOTAL NUMBER OF SHARES OF SUCH
CORPORATION'S CAPITAL STOCK OUTSTANDING.
(B)
NON-SOLICITATION.
UNTIL THE DATE 12 MONTHS AFTER THE TERMINATION
OF EMPLOYEE'S EMPLOYMENT WITH THE COMPANY FOR ANY REASON, EMPLOYEE AGREES AND
ACKNOWLEDGES THAT EMPLOYEE'S RIGHT TO RECEIVE THE SEVERANCE AND RETENTION
PAYMENTS SET FORTH IN SECTION 3 AND 4 (TO THE EXTENT EMPLOYEE IS OTHERWISE
ENTITLED TO SUCH PAYMENTS) SHALL BE CONDITIONED UPON EMPLOYEE NOT EITHER
DIRECTLY OR INDIRECTLY SOLICITING, INDUCING, RECRUITING OR ENCOURAGING AN
EMPLOYEE TO LEAVE HIS OR HER EMPLOYMENT EITHER FOR EMPLOYEE OR FOR ANY OTHER
ENTITY OR PERSON WITH WHICH OR WHOM EMPLOYEE HAS A BUSINESS RELATIONSHIP.
(C)
UNDERSTANDING OF COVENANTS.
EMPLOYEE REPRESENTS THAT HE (I) IS
FAMILIAR WITH THE FOREGOING COVENANTS NOT TO COMPETE AND NOT TO SOLICIT, AND
(II) IS FULLY AWARE OF HIS OBLIGATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION,
THE REASONABLENESS OF THE LENGTH OF TIME, SCOPE AND GEOGRAPHIC COVERAGE OF THESE
COVENANTS.
(D)
REMEDY FOR BREACH.
UPON ANY BREACH OF THIS SECTION BY EMPLOYEE,
ALL SEVERANCE AND RETENTION PAYMENTS PURSUANT TO SECTION 3 OR 4 SHALL
IMMEDIATELY CEASE, AND THAT SHALL BE THE SOLE REMEDY AVAILABLE TO THE COMPANY
FOR SUCH BREACH.
6.
ATTORNEY FEES, COSTS AND EXPENSES.
WITH RESPECT TO ANY CHANGE OF
CONTROL SEVERANCE TERMINATION ONLY, THE COMPANY SHALL REIMBURSE EMPLOYEE FOR THE
REASONABLE ATTORNEY FEES, COSTS AND EXPENSES INCURRED BY THE EMPLOYEE IN
CONNECTION WITH ANY ACTION BROUGHT BY EMPLOYEE TO ENFORCE HIS RIGHTS HEREUNDER,
PROVIDED SUCH ACTION IS NOT DECIDED IN FAVOR OF THE COMPANY.
7.
LIMITATION ON PAYMENTS.
(A)
IN THE EVENT THAT THE SEVERANCE AND OTHER BENEFITS PROVIDED FOR IN
THIS AGREEMENT OR OTHERWISE PAYABLE TO THE EMPLOYEE (I) CONSTITUTE "PARACHUTE
PAYMENTS" WITHIN THE MEANING OF SECTION 280G OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE") AND
[* ]
This provision is the subject of a Confidential Treatment Request
4
(II) BUT FOR THIS SECTION 7, WOULD BE SUBJECT TO THE EXCISE TAX IMPOSED BY
SECTION 4999 OF THE CODE, THEN THE EMPLOYEE'S SEVERANCE AND/OR RETENTION
BENEFITS UNDER THIS AGREEMENT SHALL BE EITHER
(A)
delivered in full, or
(B)
delivered