WITHIN NORTH AMERICA.
(C)
THE FOREGOING RESTRICTIONS SHALL NOT BE
CONSTRUED TO PROHIBIT EXECUTIVE'S OWNERSHIP OF LESS THAN 5% OF ANY CLASS OF
SECURITIES OF ANY CORPORATION WHICH IS ENGAGED IN ANY OF THE FOREGOING
BUSINESSES AND HAS A CLASS OF SECURITIES REGISTERED PURSUANT TO THE SECURITIES
EXCHANGE ACT OF 1934, PROVIDED THAT SUCH OWNERSHIP REPRESENTS A PASSIVE
INVESTMENT AND THAT NEITHER EXECUTIVE NOR ANY GROUP OF PERSONS INCLUDING
EXECUTIVE IN ANY WAY, EITHER DIRECTLY OR INDIRECTLY, MANAGES OR EXERCISES
CONTROL OF ANY SUCH CORPORATION, GUARANTEES ANY OF ITS FINANCIAL
6
OBLIGATIONS, OTHERWISE TAKES ANY PART IN ITS BUSINESS, OTHER THAN EXERCISING
EXECUTIVE'S RIGHTS AS A SHAREHOLDER, OR SEEKS TO DO ANY OF THE FOREGOING.
(D)
EXECUTIVE ACKNOWLEDGES THAT THE COVENANTS CONTAINED IN SECTIONS 5
THROUGH 7 HEREOF ARE REASONABLE AND NECESSARY TO PROTECT THE LEGITIMATE
INTERESTS OF THE COMPANY AND ITS AFFILIATES AND, IN PARTICULAR, THAT THE
DURATION AND GEOGRAPHIC SCOPE OF SUCH COVENANTS ARE REASONABLE GIVEN THE NATURE
OF THIS AGREEMENT AND THE POSITION THAT EXECUTIVE WILL HOLD WITHIN THE COMPANY.
EXECUTIVE FURTHER AGREES TO DISCLOSE THE EXISTENCE AND TERMS OF SUCH COVENANTS
TO ANY EMPLOYER THAT EXECUTIVE WORKS FOR DURING THE RESTRICTION PERIOD.
7.
NON-SOLICITATION.
DURING EXECUTIVE'S EMPLOYMENT BY THE COMPANY
AND FOR A PERIOD EQUAL TO THE GREATER OF THE RESTRICTION PERIOD OR ONE YEAR
AFTER THE EFFECTIVE DATE OF TERMINATION, EXECUTIVE WILL NOT, EXCEPT WITH THE
PRIOR WRITTEN CONSENT OF THE COMPANY, (I) DIRECTLY OR INDIRECTLY, SOLICIT OR
HIRE, OR ENCOURAGE THE SOLICITATION OR HIRING OF, ANY PERSON WHO IS, OR WAS
WITHIN A SIX MONTH PERIOD PRIOR TO SUCH SOLICITATION OR HIRING, AN EXECUTIVE OR
MANAGEMENT EMPLOYEE OF THE COMPANY OR ANY OF ITS AFFILIATES FOR ANY POSITION AS
AN EMPLOYEE, INDEPENDENT CONTRACTOR, CONSULTANT OR OTHERWISE OR (II) DIVERT OR
ATTEMPT TO DIVERT ANY EXISTING BUSINESS OF THE COMPANY OR ANY OF ITS AFFILIATES.
8.
CHANGE OF CONTROL.
8.1.
CONSIDERATION
(A)
CHANGE OF CONTROL.
IN THE EVENT OF A CHANGE OF CONTROL (AS
DEFINED BELOW), EXECUTIVE SHALL BE ENTITLED TO RECEIVE A CASH PAYMENT IN AN
AMOUNT EQUAL TO THE PRODUCT OF THREE TIMES THE SUM OF (I) THE HIGHEST ANNUAL
RATE OF BASE SALARY IN EFFECT FOR EXECUTIVE DURING THE 24-MONTH PERIOD
IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE CHANGE IN CONTROL (THE "TRIGGER
DATE") AND (II) THE HIGHEST AMOUNT OF ANNUAL CASH BONUS COMPENSATION PAID TO
EXECUTIVE IN RESPECT OF EITHER THE FIRST OR SECOND FULL CALENDAR YEAR
IMMEDIATELY PRECEDING THE TRIGGER DATE.
(B)
RESTRICTIVE PROVISIONS.
AS CONSIDERATION FOR THE FOREGOING
PAYMENTS, EXECUTIVE AGREES NOT TO CHALLENGE THE ENFORCEABILITY OF ANY OF THE
RESTRICTIONS CONTAINED IN SECTIONS 5, 6 OR 7 OF THIS AGREEMENT UPON OR AFTER THE
OCCURRENCE OF A CHANGE OF CONTROL.
8.2.
PAYMENT TERMS.
THIS CHANGE OF CONTROL PAYMENT SHALL BE MADE IN
TWO LUMP SUM PAYMENTS AS FOLLOWS: (I) 75% OF SUCH AMOUNT SHALL BE PAID TO
EXECUTIVE IN A LUMP-SUM CASH PAYMENT UPON THE TRIGGER DATE; AND (II) 25% OF SUCH
AMOUNT SHALL BE PAID TO