a passive investor up to a one (1%)
interest in any publicly traded entity.
The term "Client" means any individual,
partnership, firm, corporation, or other business organization for whom any of
the Companies provides services or advice, has provided services or advice, has
offered in writing to provide services or advice, or with whom any of the
Companies has had discussions followed or accompanied by written materials or
other correspondence regarding the provisions of services or advice, during the
thirty-six (36) month period prior to the termination of the Executive's
employment with the Company.
(D)
NON-SOLICITATION.
AS A SEPARATE AND INDEPENDENT COVENANT, THE
EXECUTIVE AGREES WITH THE COMPANY THAT DURING THE RESTRICTED PERIOD, THE
EXECUTIVE SHALL NOT (I) DIRECTLY OR INDIRECTLY, PERSONALLY OR THROUGH OTHER
ENTITIES OR RECRUITERS, (A) INDUCE, SOLICIT OR ATTEMPT TO PERSUADE ANY PERSON,
WHO ON THE EFFECTIVE DATE IS, OR SUBSEQUENT THERETO BECOMES, AN EMPLOYEE,
REPRESENTATIVE OR CONSULTANT OF ANY OF THE COMPANIES, TO TERMINATE OR
SIGNIFICANTLY REDUCE HIS OR HER EMPLOYMENT OR OTHER CONTRACTUAL RELATIONSHIP
WITH ANY OF THE COMPANIES, OR IN ANY WAY INTERFERE WITH THE RELATIONSHIP BETWEEN
ANY OF THE COMPANIES AND ANY EMPLOYEE THEREOF (B) HIRE OR ATTEMPT TO HIRE,
WHETHER AS AN EMPLOYEE, CONSULTANT OR OTHERWISE, ANY PERSON, WHO ON THE
EFFECTIVE DATE IS, OR SUBSEQUENT THERETO BECOMES, AN EMPLOYEE, REPRESENTATIVE OR
CONSULTANT OF ANY OF THE COMPANIES, OR (II), OTHER THAN WITH RESPECT TO THE
EXECUTIVE'S SERVICES PROVIDED TO ANY OF THE COMPANIES, THE EXECUTIVE SHALL NOT,
DIRECTLY OR INDIRECTLY, WHETHER FOR THE EXECUTIVE'S OWN ACCOUNT OR FOR THE
ACCOUNT OF ANY OTHER INDIVIDUAL, PARTNERSHIP, FIRM, CORPORATION OR OTHER
BUSINESS ORGANIZATION, CONTACT OR SOLICIT, OR DIRECT ANY PERSON, FIRM,
CORPORATION, ASSOCIATION OR OTHER BUSINESS ORGANIZATION, TO CONTACT OR SOLICIT,
ANY CLIENTS FOR THE PURPOSE OF PROVIDING OR ATTEMPTING TO PROVIDE ANY SERVICES
OR ADVICE THAT ARE THE SAME AS OR SIMILAR TO THE SERVICES OR ADVICE PROVIDED BY
ANY OF THE COMPANIES.
8
(E)
NON-DISPARAGEMENT.
THE EXECUTIVE AGREES THAT AT ANY TIME DURING
HIS EMPLOYMENT WITH THE COMPANY AND AT ANY TIME THEREAFTER, THE EXECUTIVE SHALL
NOT MAKE, OR CAUSE OR ASSIST ANY OTHER PERSON TO MAKE, ANY STATEMENT OR OTHER
COMMUNICATION WHICH IMPUGNS OR ATTACKS, OR IS OTHERWISE CRITICAL OF, THE
REPUTATION, BUSINESS OR CHARACTER OF THE COMPANY, ANY SUBSIDIARY OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, PRODUCTS OR SERVICES.
(F)
ENFORCEMENT.
THE EXECUTIVE HEREBY ACKNOWLEDGES THAT HE HAS
CAREFULLY REVIEWED THE PROVISIONS OF THIS AGREEMENT AND AGREES THAT THE
PROVISIONS ARE FAIR AND EQUITABLE.
HOWEVER, IN LIGHT OF THE POSSIBILITY OF
DIFFERING INTERPRETATIONS OF LAW AND CHANGE IN CIRCUMSTANCES, THE PARTIES HERETO
AGREE THAT IF ANY ONE OR MORE OF THE PROVISIONS OF THIS AGREEMENT IS DETERMINED
BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE UNDER
CIRCUMSTANCES THEN EXISTING, THE PARTIES HERETO AGREE THAT THE MAXIMUM PERIOD,
SCOPE OR GEOGRAPHICAL AREA REASONABLE OR ENFORCEABLE UNDER SUCH CIRCUMSTANCES
SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA.
BECAUSE THE
EXECUTIVE'S SERVICES ARE