OR ENTITY COMPETING WITH THE BUSINESSES OF THE
COMPANY OR ITS SUBSIDIARIES AS SUCH BUSINESSES EXIST OR ARE IN PROCESS DURING
THE EMPLOYMENT PERIOD OR ON THE DATE OF THE TERMINATION OF THE EMPLOYMENT
PERIOD, WITHIN ANY GEOGRAPHICAL AREA IN WHICH THE COMPANY OR ITS SUBSIDIARIES
ENGAGE IN SUCH BUSINESS OR ACTIVELY PLAN TO ENGAGE IN SUCH BUSINESSES AT THE
TIME OF EXECUTIVE'S DEPARTURE FROM THE COMPANY.
NOTHING HEREIN SHALL PROHIBIT
EXECUTIVE FROM BEING A PASSIVE OWNER OF NOT MORE THAN 2% OF THE OUTSTANDING
STOCK OF ANY CLASS OF A CORPORATION WHICH IS PUBLICLY TRADED, SO LONG AS
EXECUTIVE HAS NO ACTIVE PARTICIPATION IN THE BUSINESS OF SUCH CORPORATION.
FOR
PURPOSES OF THIS AGREEMENT, COMPETITORS OF THE COMPANY SHALL INCLUDE, BUT NOT BE
LIMITED TO, THE COMPANIES LISTED IN EXHIBIT D HERETO.
(B)
IN ADDITION, DURING THE NONCOMPETE PERIOD, EXECUTIVE SHALL NOT,
OTHER THAN WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY, DIRECTLY OR INDIRECTLY
THROUGH ANOTHER PERSON OR ENTITY (I) INDUCE OR ATTEMPT TO INDUCE ANY EMPLOYEE OF
THE COMPANY OR ANY SUBSIDIARY TO LEAVE THE EMPLOY OF THE COMPANY OR SUCH
SUBSIDIARY, OR IN ANY WAY INTERFERE WITH THE RELATIONSHIP BETWEEN THE COMPANY OR
ANY SUBSIDIARY AND ANY EMPLOYEE THEREOF, (II) HIRE ANY PERSON WHO WAS AN
EMPLOYEE OF THE COMPANY OR ANY SUBSIDIARY DURING THE 6-MONTH PERIOD PRIOR TO THE
DATE OF EXECUTIVE'S EMPLOYMENT TERMINATION OR (III) INDUCE OR ATTEMPT TO INDUCE
ANY CUSTOMER, SUPPLIER, LICENSEE, LICENSOR, FRANCHISEE OR OTHER BUSINESS
RELATION OF THE COMPANY OR ANY SUBSIDIARY WITH WHOM EXECUTIVE HAD ANY MATERIAL
CONTACT WHILE EMPLOYED BY THE COMPANY TO CEASE DOING BUSINESS WITH THE COMPANY
OR SUCH SUBSIDIARY, OR IN ANY WAY INTERFERE WITH THE RELATIONSHIP BETWEEN ANY
SUCH CUSTOMER, SUPPLIER, LICENSEE OR BUSINESS RELATION AND THE COMPANY OR ANY
SUBSIDIARY.
DURING AND AFTER THE EMPLOYMENT PERIOD, EXECUTIVE SHALL NOT
DIRECTLY OR INDIRECTLY THROUGH ANOTHER PERSON OR ENTITY DISPARAGE, CRITICIZE,
DEFAME, SLANDER OR OTHERWISE MAKE ANY NEGATIVE STATEMENTS OR COMMUNICATIONS
REGARDING THE COMPANY OR ITS
7
SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE PAST AND PRESENT INVESTORS,
OFFICERS, DIRECTORS OR EMPLOYEES.
8.
ENFORCEMENT.
IF, AT THE TIME OF ENFORCEMENT OF PARAGRAPHS 5, 6 OR 7 OF
THIS AGREEMENT, A COURT HOLDS THAT THE RESTRICTIONS STATED HEREIN ARE
UNREASONABLE UNDER CIRCUMSTANCES THEN EXISTING, THE PARTIES HERETO AGREE THAT
THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL AREA REASONABLE UNDER SUCH
CIRCUMSTANCES SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA AND THAT
THE COURT SHALL BE ALLOWED TO REVISE THE RESTRICTIONS CONTAINED HEREIN TO COVER
THE MAXIMUM PERIOD, SCOPE AND AREA PERMITTED BY LAW.
BECAUSE EXECUTIVE'S
SERVICES ARE UNIQUE AND BECAUSE EXECUTIVE HAS ACCESS TO CONFIDENTIAL INFORMATION
AND WORK PRODUCT, THE PARTIES HERETO AGREE THAT THE RESTRICTIONS CONTAINED IN
PARAGRAPHS 5, 6 AND 7 ARE NECESSARY FOR THE PROTECTION OF THE BUSINESS AND
GOODWILL OF THE COMPANY AND THE COMPANY AND ITS SUBSIDIARIES WOULD SUFFER
IRREPARABLE HARM FROM A BREACH OF PARAGRAPHS 5, 6 OR 7 BY EXECUTIVE AND THAT
MONEY DAMAGES WOULD NOT BE AN