DUTIES TO THE COMPANY OR ANY OF ITS SUBSIDIARIES
OR AFFILIATES (OTHER THAN AS A RESULT OF TOTAL OR PARTIAL INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS) FOR A PERIOD OF 10 DAYS FOLLOWING WRITTEN NOTICE BY
THE COMPANY TO YOU OF SUCH FAILURE, (B) YOUR COMMISSION OF A FELONY UNDER THE
LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR A MISDEMEANOR INVOLVING MORAL
TURPITUDE, (C) YOUR WILLFUL MALFEASANCE OR WILLFUL MISCONDUCT IN CONNECTION WITH
YOUR DUTIES TO THE COMPANY, ITS SUBSIDIARIES OR AFFILIATES, OR ANY ACT OR
OMISSION WHICH IS
5
INJURIOUS TO THE FINANCIAL CONDITION OR BUSINESS REPUTATION OF THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES, OR (D) YOUR BREACH OF THE PROVISIONS OF
PARAGRAPHS 2 OR 3 OF THIS APPENDIX A.
(II)
"ACCRUED RIGHTS" MEANS: (A) THE BASE
SALARY THROUGH THE DATE OF TERMINATION; (B) ANY ANNUAL BONUS EARNED BUT UNPAID
FOR ANY PREVIOUSLY COMPLETED FISCAL YEAR; (C) SUCH EMPLOYEE BENEFITS AS TO WHICH
YOU MAY BE ENTITLED; AND (D) ANY SUPPLEMENTAL RETIREMENT PLAN VESTING AS TO
WHICH YOU MAY BE ENTITLED UNDER SECTION 5 OF THE LETTER AGREEMENT.
d.
Release.
Your receipt of any amounts
under this Paragraph 1 (other than the Accrued Rights) will be subject to and
conditioned on your execution and non-revocation of a general release on terms
reasonably satisfactory to the Company.
PARAGRAPH 2.
NON-COMPETITION.
A.
YOU ACKNOWLEDGE AND RECOGNIZE THE
HIGHLY COMPETITIVE NATURE OF THE BUSINESSES OF THE COMPANY AND ITS AFFILIATES
AND ACCORDINGLY AGREE AS FOLLOWS:
(I)
WHILE EMPLOYED AND FOR A PERIOD OF ONE
YEAR THEREAFTER, YOU WILL NOT, DIRECTLY OR INDIRECTLY: (A) ENGAGE IN, INVEST IN,
OR ENTER INTO THE EMPLOY OF OR OTHERWISE RENDER ANY SERVICES TO, ANY BUSINESS
THAT COMPETES WITH THE BUSINESS OF THE COMPANY OR ITS AFFILIATES (INCLUDING,
WITHOUT LIMITATION, BUSINESSES WHICH THE COMPANY OR ITS AFFILIATES HAVE SPECIFIC
PLANS TO CONDUCT IN THE FUTURE AND AS TO WHICH YOU ARE AWARE OF SUCH PLANNING)
IN ANY GEOGRAPHICAL AREA WHERE THE COMPANY OR ITS AFFILIATES MANUFACTURES,
PRODUCES, SELLS, LEASES, RENTS, LICENSES OR OTHERWISE PROVIDES ITS PRODUCTS OR
SERVICES (A "COMPETITIVE BUSINESS"); OR (B) INTERFERE WITH, OR ATTEMPT TO
INTERFERE WITH, BUSINESS RELATIONSHIPS (WHETHER FORMED BEFORE, ON OR AFTER THE
DATE OF THE LETTER AGREEMENT) BETWEEN THE COMPANY OR ANY OF ITS AFFILIATES AND
CUSTOMERS, CLIENTS, SUPPLIERS, OR INVESTORS OF THE COMPANY OR ITS AFFILIATES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LETTER AGREEMENT, YOU MAY OWN
UP TO 2% OF THE SECURITIES OF ANY PERSON ENGAGED IN THE BUSINESS OF THE COMPANY
OR ITS AFFILIATES THAT ARE PUBLICLY TRADED.
(II)
WHILE EMPLOYED BY THE COMPANY AND FOR A
PERIOD OF TWO YEARS THEREAFTER, YOU WILL NOT, DIRECTLY OR INDIRECTLY: (A)
SOLICIT OR ENCOURAGE ANY EMPLOYEE OF THE COMPANY OR ITS AFFILIATES TO LEAVE THE
EMPLOYMENT OF THE COMPANY OR ITS AFFILIATES; OR (B) HIRE ANY EMPLOYEE WHO WAS
EMPLOYED BY THE COMPANY OR ITS AFFILIATES WITHIN ONE YEAR PRIOR TO TERMINATION
OF YOUR EMPLOYMENT.
B.
IT IS EXPRESSLY UNDERSTOOD