AND WITHHOLDINGS, A PAYMENT
REPRESENTING THE DISCRETIONARY INCENTIVE COMPENSATION EMPLOYEE WOULD HAVE BEEN
AWARDED FOLLOWING THE FISCAL YEAR'S END, AS DETERMINED BY THE COMPANY IN ITS
SOLE DISCRETION, PRO-RATED FOR THE PERIOD OF TIME EMPLOYEE WAS EMPLOYED BY THE
COMPANY IN THE FISCAL YEAR FOR WHICH THE BONUS IS PAYABLE; AND
(III)
SHOULD EMPLOYEE BE ELIGIBLE FOR AND
ELECT TO CONTINUE HIS HEALTH INSURANCE PURSUANT TO COBRA FOLLOWING THE DATE OF
SUCH TERMINATION, THE COMPANY WILL PAY THE COBRA PREMIUMS, LESS THE AMOUNT
DEDUCTED FROM EMPLOYEE'S SEVERANCE IN AN AMOUNT EQUAL TO THAT WHICH HAD BEEN
DEDUCTED FOR SUCH INSURANCE COVERAGE WHEN HE WAS A REGULAR EMPLOYEE, UNTIL THE
EARLIER OF: (1) TWELVE (12) MONTHS, OR (2) THE DATE EMPLOYEE COMMENCES
EMPLOYMENT WITH ANY PERSON OR ENTITY AND, THUS, IS ELIGIBLE FOR HEALTH INSURANCE
BENEFITS.
Notwithstanding the foregoing, the payments and benefits described in this
Subsections 9(f) shall immediately terminate, and the Company shall have no
further obligations
8
to Employee with respect thereto, in the event that Employee breaches any
provision of Section 10 hereof.
Following such termination of Employee's employment by the Company without Cause
within One Hundred Eighty (180) days of a Change of Control, except as set forth
in this Subsection 9(f), Employee shall have no further rights to any
compensation or any other benefits under this Agreement.
(G)
RELEASE.
NOTWITHSTANDING ANY PROVISION
HEREIN TO THE CONTRARY, THE COMPANY MAY REQUIRE THAT, PRIOR TO PAYMENT OF ANY
AMOUNT OR PROVISION OF ANY BENEFIT OTHER THAN THE ACCRUED OBLIGATIONS, EMPLOYEE
SHALL HAVE EXECUTED A CUSTOMARY GENERAL RELEASE IN FAVOR OF THE COMPANY AND ITS
AFFILIATES AND RELATED PARTIES IN SUCH FORM AS IS REASONABLY REQUIRED BY THE
COMPANY, AND ANY WAITING PERIODS CONTAINED IN SUCH RELEASE SHALL HAVE EXPIRED.
SECTION 10.
RESTRICTIVE COVENANTS.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT (A) THE AGREEMENTS AND COVENANTS CONTAINED
IN THIS SECTION 10 ARE (I) REASONABLE AND VALID IN GEOGRAPHICAL AND TEMPORAL
SCOPE AND IN ALL OTHER RESPECTS, AND (II) ESSENTIAL TO PROTECT THE VALUE OF THE
COMPANY'S BUSINESS AND ASSETS, AND (B) BY EMPLOYEE'S EMPLOYMENT WITH THE
COMPANY, EMPLOYEE WILL OBTAIN KNOWLEDGE, CONTACTS, KNOW-HOW, TRAINING AND
EXPERIENCE AND THERE IS A SUBSTANTIAL PROBABILITY THAT SUCH KNOWLEDGE, KNOW-HOW,
CONTACTS, TRAINING AND EXPERIENCE COULD BE USED TO THE SUBSTANTIAL ADVANTAGE OF
A COMPETITOR OF THE COMPANY AND TO THE COMPANY'S SUBSTANTIAL DETRIMENT.
FOR
PURPOSES OF THIS SECTION 10, REFERENCES TO THE COMPANY SHALL BE DEEMED TO
INCLUDE ITS SUBSIDIARIES.
(A)
CONFIDENTIAL INFORMATION.
AT ANY TIME
DURING AND AFTER THE END OF THE PERIOD OF EMPLOYEE'S EMPLOYMENT BY THE COMPANY,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, EXCEPT TO THE EXTENT REQUIRED
BY AN ORDER OF A COURT HAVING JURISDICTION OR UNDER SUBPOENA FROM AN APPROPRIATE
GOVERNMENT AGENCY, IN WHICH EVENT, EMPLOYEE SHALL USE EMPLOYEE'S BEST EFFORTS TO
CONSULT WITH THE COMPANY PRIOR TO RESPONDING TO ANY SUCH ORDER OR SUBPOENA, AND
EXCEPT AS REQUIRED IN THE PERFORMANCE OF EMPLOYEE'S DUTIES HEREUNDER, EMPLOYEE
SHALL NOT DISCLOSE TO OR USE FOR EMPLOYEE'S BENEFIT