EMPLOYER OR AVOCENT OR FOR THE PURPOSE OF DISADVANTAGING
THE EMPLOYER'S OR AVOCENT'S BUSINESS IN ANY WAY.
EMPLOYEE ACKNOWLEDGES AND
AGREES THAT THE EMPLOYER'S AND AVOCENT'S CUSTOMERS DID NOT USE OR INQUIRE OF THE
EMPLOYER'S OR AVOCENT'S SERVICES SOLELY AS A RESULT OF HIS EFFORTS, AND THAT THE
EFFORTS OF THE EMPLOYER'S AND/OR AVOCENT'S PERSONNEL AND RESOURCES ARE
RESPONSIBLE FOR THE EMPLOYER'S AND AVOCENT'S RELATIONSHIP WITH THEIR CUSTOMERS.
EMPLOYEE FURTHER ACKNOWLEDGE AND AGREE THAT THE IDENTITY OF THE EMPLOYERS AND
AVOCENT'S CUSTOMERS IS NOT READILY ASCERTAINABLE OR DISCOVERABLE THROUGH PUBLIC
SOURCES, AND THAT EMPLOYER'S AND AVOCENT'S LISTS OF CUSTOMERS WERE CULTIVATED
WITH GREAT EFFORT AND SECURED THROUGH THE EXPENDITURE OF CONSIDERABLE TIME AND
MONEY BY THE EMPLOYER AND AVOCENT.
5.3
NON-SOLICITATION OF EMPLOYEES AND
CONSULTANTS.
DURING THE TERM OF THIS AGREEMENT, AND FOR A PERIOD OF
(
) MONTHS IMMEDIATELY FOLLOWING THE
11
TERMINATION OF EMPLOYEE'S RELATIONSHIP WITH THE EMPLOYER, WHETHER HE RESIGNS
VOLUNTARILY OR IS TERMINATED BY THE EMPLOYER OR AVOCENT CORPORATION
INVOLUNTARILY, EMPLOYEE WILL NOT, WITHOUT THE EMPLOYER'S OR AVOCENT
CORPORATION'S PRIOR WRITTEN CONSENT, WHETHER PAID OR NOT, DIRECTLY OR
INDIRECTLY, HIRE, SOLICIT OR RECRUIT EMPLOYEES OR CONSULTANTS OF THE EMPLOYER OR
AVOCENT TO LEAVE THE EMPLOYER OR AVOCENT, CONTACT ANY EMPLOYEE OR CONSULTANT OF
THE EMPLOYER OR AVOCENT OR CAUSE ANY EMPLOYEE OR CONSULTANT OF THE EMPLOYER OR
AVOCENT TO BE CONTACTED FOR THE PURPOSE OF LEAVING THEIR EMPLOYMENT OR
CONSULTANCY ARRANGEMENT OR PROVIDING SERVICES FOR EMPLOYEE OR ANY OTHER ENTITY,
EMPLOY ANY EMPLOYEE OR RECEIVE SERVICES FROM ANY CONSULTANT WHO IS EMPLOYED BY
OR PROVIDING CONSULTING SERVICES FOR THE EMPLOYER OR AVOCENT OR WHO HAS BEEN
EMPLOYED BY OR PROVIDED CONSULTING SERVICES FOR THE EMPLOYER OR AVOCENT IN THE
PRIOR SIX MONTH PERIOD.
5.4
ACKNOWLEDGEMENTS.
EMPLOYEE ACKNOWLEDGES
THAT THE EMPLOYER AND AVOCENT WILL PROVIDE HIM WITH THEIR PROPRIETARY AND
CONFIDENTIAL INFORMATION TO ENABLE HIM TO OPTIMIZE THE PERFORMANCE OF HIS DUTIES
TO THE EMPLOYER, AND THAT HE WILL DERIVE SIGNIFICANT VALUE FROM SUCH
DISCLOSURES.
EMPLOYEE FURTHER ACKNOWLEDGES THAT HIS FULFILLMENT OF HIS
OBLIGATIONS NOT TO COMPETE AND NOT TO SOLICIT CONTAINED IN SECTIONS 5.1, 5.2,
AND 5.3 ABOVE, ARE NECESSARY TO PROTECT THE EMPLOYER'S AND AVOCENT'S PROPRIETARY
AND CONFIDENTIAL INFORMATION AND, CONSEQUENTLY, TO PRESERVE THE VALUE AND
GOODWILL OF THE EMPLOYER AND AVOCENT.
EMPLOYEE ALSO ACKNOWLEDGES THAT THE
PARAMETERS OF HIS OBLIGATIONS UNDER SECTION 5.1, 5.2, AND 5.3 ABOVE ARE FAIR AND
REASONABLE IN ALL RESPECTS, ESPECIALLY IN LIGHT OF THE EMPLOYER'S AND AVOCENT'S
NEED TO PROTECT THEIR PROPRIETARY AND CONFIDENTIAL INFORMATION AND THE
INTERNATIONAL SCOPE AND NATURE OF THE EMPLOYER'S AND AVOCENT'S BUSINESS, AND
THAT HE WILL NOT BE PRECLUDED FROM GAINFUL EMPLOYMENT IF HE IS OBLIGATED NOT TO
COMPETE WITH THE EMPLOYER OR AVOCENT OR SOLICIT THEIR EMPLOYEES, CUSTOMERS OR
OTHERS DURING THE PERIOD DESCRIBED ABOVE.
6.
MISCELLANEOUS.
6.1
PAYMENT OBLIGATIONS.
IF LITIGATION AFTER A
CHANGE IN CONTROL SHALL BE BROUGHT TO ENFORCE OR INTERPRET ANY PROVISION
CONTAINED HEREIN, THE EMPLOYER AND AVOCENT CORPORATION, TO THE EXTENT PERMITTED
BY APPLICABLE LAW AND THE