TERMINATION OF
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY OR INVOLVING THE FAILURE OR REFUSAL OF
THE COMPANY TO PERFORM FULLY IN ACCORDANCE WITH THE TERMS HEREOF, THE COMPANY
SHALL REIMBURSE EXECUTIVE, ON A CURRENT BASIS, FOR ALL REASONABLE LEGAL FEES AND
EXPENSES, IF ANY, INCURRED BY EXECUTIVE IN CONNECTION WITH SUCH CONTEST OR
DISPUTE (REGARDLESS OF THE RESULT THEREOF); PROVIDED, HOWEVER, EXECUTIVE SHALL
BE REQUIRED TO REPAY ANY SUCH AMOUNTS TO THE COMPANY TO THE EXTENT THAT A COURT
OR AN ARBITRATION PANEL ISSUES A FINAL ORDER FROM WHICH NO APPEAL CAN BE TAKEN,
OR WITH RESPECT TO WHICH THE TIME PERIOD TO APPEAL HAS EXPIRED, SETTING FORTH
THAT EXECUTIVE HAS NOT SUBSTANTIALLY PREVAILED ON AT LEAST ONE MATERIAL ISSUE IN
DISPUTE.
10
7.
EMPLOYMENT BY SUBSIDIARIES.
EMPLOYMENT
BY THE COMPANY FOR PURPOSES OF THIS AGREEMENT SHALL INCLUDE EMPLOYMENT BY ANY
AFFILIATE.
8.
RESTRICTIVE COVENANTS.
(A)
NON-COMPETITION AND NON-SOLICITATION.
EXECUTIVE ACKNOWLEDGES AND RECOGNIZES THE HIGHLY COMPETITIVE NATURE OF THE
BUSINESSES OF THE COMPANY AND ITS AFFILIATES, THE VALUABLE CONFIDENTIAL BUSINESS
INFORMATION IN EXECUTIVE'S POSSESSION AND THE CUSTOMER GOODWILL ASSOCIATED WITH
THE ONGOING BUSINESS PRACTICE OF THE COMPANY, AND ACCORDINGLY AGREES AS FOLLOWS:
(I)
FOR A PERIOD ENDING ON THE EXPIRATION OF ONE YEAR FOLLOWING THE
TERMINATION OF EXECUTIVE'S EMPLOYMENT (THE "RESTRICTED PERIOD"), EXECUTIVE WILL
NOT DIRECTLY OR INDIRECTLY, (A) ENGAGE IN ANY BUSINESS FOR EXECUTIVE'S OWN
ACCOUNT THAT COMPETES WITH THE BUSINESS OF THE COMPANY, (B) ENTER THE EMPLOY OF,
OR RENDER ANY SERVICES TO, ANY PERSON ENGAGED IN ANY BUSINESS THAT COMPETES WITH
THE BUSINESS OF THE COMPANY, (C) ACQUIRE A FINANCIAL INTEREST IN, OR OTHERWISE
BECOME ACTIVELY INVOLVED WITH, ANY PERSON ENGAGED IN ANY BUSINESS THAT COMPETES
WITH THE BUSINESS OF THE COMPANY, DIRECTLY OR INDIRECTLY, AS AN INDIVIDUAL,
PARTNER, SHAREHOLDER, OFFICER, DIRECTOR, PRINCIPAL, AGENT, TRUSTEE OR
CONSULTANT, OR (D) INTERFERE WITH BUSINESS RELATIONSHIPS (WHETHER FORMED BEFORE
OR AFTER THE DATE OF THIS AGREEMENT) BETWEEN THE COMPANY OR ANY OF ITS
AFFILIATES THAT ARE ENGAGED IN A BUSINESS SIMILAR TO THE BUSINESS OF THE COMPANY
(THE "COMPANY AFFILIATES") AND CUSTOMERS OR SUPPLIERS OF THE COMPANY OR THE
COMPANY AFFILIATES.
(II)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
EXECUTIVE MAY DIRECTLY OR INDIRECTLY OWN, SOLELY AS A PASSIVE INVESTMENT,
SECURITIES OF ANY PERSON ENGAGED IN THE BUSINESS OF THE COMPANY WHICH ARE
PUBLICLY TRADED ON A NATIONAL OR REGIONAL STOCK EXCHANGE OR ON THE
OVER-THE-COUNTER MARKET IF EXECUTIVE (A) IS NOT A CONTROLLING PERSON OF, OR A
MEMBER OF A GROUP WHICH CONTROLS, SUCH PERSON AND (B) DOES NOT, DIRECTLY OR
INDIRECTLY, OWN ONE PERCENT (1%) OR MORE OF ANY CLASS OF SECURITIES OF SUCH
PERSON.
(III)
DURING THE RESTRICTED PERIOD, AND FOR AN ADDITIONAL ONE YEAR
AFTER THE END OF THE RESTRICTED PERIOD, EXECUTIVE SHALL NOT, DIRECTLY OR
INDIRECTLY, (A) WITHOUT THE WRITTEN CONSENT OF THE COMPANY, SOLICIT OR ENCOURAGE
ANY EMPLOYEE OF THE COMPANY OR THE COMPANY AFFILIATES TO LEAVE THE EMPLOYMENT OF
THE COMPANY OR THE COMPANY AFFILIATES, OR (B) WITHOUT THE WRITTEN CONSENT OF