ENTITLED TO A PRO-RATA PORTION (DETERMINED BASED ON
THE NUMBER OF FULL AND PARTIAL MONTHS OF THE FISCAL YEAR THAT HAVE TRANSPIRED
PRIOR TO THE DATE OF TERMINATION) OF THE PERFORMANCE SHARES THAT OTHERWISE WOULD
HAVE BEEN EARNED UNDER THIS SECTION 5.3 FOR THE FISCAL YEAR OF TERMINATION
(BASED ON ACTUAL CORPORATE AND/OR INDIVIDUAL PERFORMANCE IN THAT YEAR,
DETERMINED AT THE SAME TIME AND IN THE SAME MANNER AS WOULD HAVE OTHERWISE BEEN
APPLICABLE IN THE ABSENCE OF THE TERMINATION).
SUCH SHARES WILL BE ISSUED OR
RELEASED FROM ESCROW (AS APPLICABLE, DEPENDING ON WHETHER AWARDED IN THE FORM OF
RESTRICTED STOCK UNITS OR RESTRICTED STOCK) AT THE SAME TIME AS WOULD HAVE
OTHERWISE BEEN APPLICABLE IN THE ABSENCE OF THE TERMINATION, PROVIDED THAT THE
TIME-BASED VESTING REQUIREMENT OTHERWISE APPLICABLE TO SUCH PRO-RATA PERFORMANCE
SHARE AWARD WILL BE WAIVED.
(C)
THE COMPANY'S OBLIGATIONS UNDER THIS SECTION 5.3 WILL BE SUBJECT
TO STOCKHOLDER APPROVAL, IN A MANNER CONSISTENT WITH THE REQUIREMENTS OF SECTION
162(M) OF THE CODE, AT THE COMPANY'S 2008 ANNUAL MEETING.
6.
BENEFITS AND EXPENSES.
IN ADDITION TO THOSE BENEFITS PROVIDED TO
SIMILARLY SITUATED EMPLOYEES OF THE COMPANY, EMPLOYEE SHALL BE ENTITLED TO THOSE
EMPLOYEE BENEFITS AS SET FORTH ON SCHEDULE A HERETO ("BENEFITS").
7.
CONFIDENTIALITY.
EMPLOYEE RECOGNIZES AND ACKNOWLEDGES THAT THE
PROPRIETARY INFORMATION (AS HEREINAFTER DEFINED) IS A VALUABLE, SPECIAL AND
UNIQUE ASSET OF THE BUSINESS OF THE COMPANY.
AS A RESULT, BOTH DURING THE TERM
AND THEREAFTER, EMPLOYEE SHALL NOT, WITHOUT PRIOR WRITTEN CONSENT OF THE
COMPANY, FOR ANY REASON EITHER DIRECTLY OR INDIRECTLY DIVULGE TO ANY THIRD-PARTY
OR USE FOR HER OWN BENEFIT, OR FOR ANY PURPOSE OTHER THAN THE EXCLUSIVE BENEFIT
OF THE COMPANY, ANY CONFIDENTIAL, PROPRIETARY, BUSINESS AND TECHNICAL
INFORMATION OR TRADE SECRETS OF THE COMPANY OR OF ANY SUBSIDIARY OR AFFILIATE OF
THE COMPANY ("PROPRIETARY INFORMATION") REVEALED, OBTAINED OR DEVELOPED IN THE
COURSE OF HER EMPLOYMENT WITH THE COMPANY.
FAILURE BY THE COMPANY TO MARK ANY
OF THE PROPRIETARY INFORMATION AS CONFIDENTIAL OR PROPRIETARY SHALL NOT AFFECT
ITS STATUS AS PROPRIETARY INFORMATION UNDER THE TERMS OF THIS AGREEMENT.
8.
COVENANT NOT TO COMPETE.
EMPLOYEE SHALL NOT, DURING THE TERM AND
THE TWO (2) YEAR PERIOD FOLLOWING ANY CESSATION OF EMPLOYEE'S EMPLOYMENT WITH
THE COMPANY (THE "RESTRICTED PERIOD"), DO ANY OF THE FOLLOWING, DIRECTLY OR
INDIRECTLY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY:
8.1.
ENGAGE OR PARTICIPATE IN A PROHIBITED BUSINESS (AS DEFINED BELOW)
AS DETERMINED AT THE TERMINATION OF EMPLOYEE'S EMPLOYMENT HEREUNDER;
8.2.
BECOME INTERESTED IN (AS OWNER, STOCKHOLDER, LENDER, PARTNER,
CO-VENTURER, DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT OR OTHERWISE) ANY
PERSON, FIRM, CORPORATION, ASSOCIATION OR OTHER ENTITY ENGAGED IN ANY PROHIBITED
BUSINESS AS DETERMINED AT THE TERMINATION OF EMPLOYEE'S EMPLOYMENT HEREUNDER.
NOTWITHSTANDING THE FOREGOING, EMPLOYEE MAY HOLD NOT MORE THAN ONE PERCENT (1%)
OF THE OUTSTANDING SECURITIES OF ANY CLASS OF ANY PUBLICLY-TRADED SECURITIES OF
A COMPANY THAT IS ENGAGED IN ACTIVITIES REFERENCED IN SECTION 8.1 HEREOF;
4
8.3.
SOLICIT OR CALL ON, EITHER DIRECTLY OR INDIRECTLY, ANY SUPPLIER
WITH WHOM THE