BE REQUIRED TO EXECUTE A SEVERANCE AGREEMENT AND GENERAL RELEASE. SUCH SEVERANCE
AGREEMENT AND GENERAL RELEASE WILL CONTAIN THE RESTRICTIVE COVENANTS SET FORTH
BELOW REGARDING NON-COMPETITION,
18
CONFIDENTIALITY, NON-DISPARAGEMENT AND NON-SOLICITATION AS WELL AS A GENERAL
RELEASE OF CLAIMS AGAINST THE COMPANY AND ITS AFFILIATES.
(A)
NON-COMPETITION. PAYMENT OF ANY AND ALL
SEVERANCE BENEFITS PROVIDED UNDER THE ESP WILL CEASE IF, AT ANY TIME DURING THE
SEVERANCE PERIOD DESCRIBED IN SECTION 3.1(A), THE COVERED EXECUTIVE DIRECTLY OR
INDIRECTLY, CARRIES ON OR CONDUCTS, IN COMPETITION WITH THE COMPANY AND ITS
AFFILIATES, ANY BUSINESS OF THE NATURE IN WHICH THE COMPANY OR ITS AFFILIATES
ARE THEN ENGAGED IN ANY GEOGRAPHICAL AREA IN WHICH THE COMPANY OR ITS AFFILIATES
ENGAGE IN BUSINESS AT THE TIME OF THE COVERED EXECUTIVE'S QUALIFYING TERMINATION
OR IN WHICH ANY OF THEM, PRIOR TO SUCH QUALIFYING TERMINATION, EVIDENCED IN
WRITING, AT ANY TIME DURING THE SIX (6) MONTH PERIOD PRIOR TO SUCH TERMINATION,
AN INTENTION TO ENGAGE IN SUCH BUSINESS. THIS PROHIBITION EXTENDS TO THE COVERED
EXECUTIVE'S CONDUCTING OR ENGAGING IN ANY SUCH BUSINESS EITHER AS AN INDIVIDUAL
ON HIS OWN ACCOUNT OR AS A PARTNER OR JOINT VENTURER OR AS AN EXECUTIVE, AGENT,
CONSULTANT OR SALESMAN FOR ANY OTHER PERSON OR ENTITY, OR AS AN OFFICER OR
DIRECTOR OF A CORPORATION OR AS A SHAREHOLDER IN A CORPORATION OF WHICH HE WILL
THEN OWN TEN PERCENT (10%) OR MORE OF ANY CLASS OF STOCK. THE PROVISIONS OF THIS
SECTION 3.7(A) WILL NOT APPLY DURING THE SEVERANCE PERIOD DESCRIBED IN SECTION
3.2(A).
(B)
CONFIDENTIAL INFORMATION. PAYMENT OF ANY
AND ALL SEVERANCE BENEFITS WILL CEASE IF, AT ANY TIME DURING THE SEVERANCE
PERIOD DESCRIBED IN EITHER SECTION 3.1(A) OF 3.2(A), THE COVERED EXECUTIVE
DIRECTLY OR INDIRECTLY REVEALS, DIVULGES OR MAKES KNOWN TO ANY PERSON OR ENTITY,
OR USES FOR THE COVERED EXECUTIVE'S PERSONAL BENEFIT (INCLUDING WITHOUT
LIMITATION FOR THE PURPOSE OF SOLICITING BUSINESS, WHETHER OR NOT COMPETITIVE
WITH ANY BUSINESS OF THE COMPANY OR ANY OF ITS AFFILIATES), ANY INFORMATION
ACQUIRED DURING THE COVERED EXECUTIVE'S EMPLOYMENT WITH THE COMPANY OR ITS
AFFILIATES WITH REGARD TO THE FINANCIAL, BUSINESS OR OTHER AFFAIRS OF THE
COMPANY OR ANY OF ITS AFFILIATES (INCLUDING WITHOUT LIMITATION ANY LIST OR
RECORD OF PERSONS OR ENTITIES WITH WHICH THE COMPANY OR ANY OF ITS AFFILIATES
HAS ANY DEALINGS), OTHER THAN:
(I)
INFORMATION ALREADY IN THE PUBLIC
DOMAIN,
(II)
INFORMATION OF A TYPE NOT CONSIDERED
CONFIDENTIAL BY PERSONS ENGAGED IN THE SAME BUSINESS OR A BUSINESS SIMILAR TO
THAT CONDUCTED BY THE COMPANY OR ITS AFFILIATES, OR
(III)
INFORMATION THAT THE COVERED EXECUTIVE IS
REQUIRED TO DISCLOSE UNDER THE FOLLOWING CIRCUMSTANCES:
(A)
AT THE EXPRESS DIRECTION OF ANY AUTHORIZED
GOVERNMENTAL ENTITY;
(B)
PURSUANT TO A SUBPOENA OR OTHER COURT
PROCESS;
(C)
AS OTHERWISE REQUIRED BY LAW OR THE RULES,
REGULATIONS, OR ORDERS OF ANY APPLICABLE REGULATORY BODY; OR
(D)
AS OTHERWISE NECESSARY, IN THE OPINION OF
COUNSEL FOR THE COVERED EXECUTIVE, TO BE DISCLOSED BY THE COVERED EXECUTIVE IN
CONNECTION WITH ANY LEGAL ACTION OR