THE RELEASE EXPIRATION DATE OR TIMELY REVOKES HIS ACCEPTANCE OF SUCH RELEASE
THEREAFTER, EMPLOYEE SHALL NOT BE ENTITLED TO ANY PAYMENTS OR BENEFITS PURSUANT
TO SUBSECTION (D), (E), OR (H) OR PURSUANT TO CLAUSES (III) THROUGH (V) OF
SUBSECTION (G) OF THIS SECTION 8 (OTHER THAN THE ACCRUED OBLIGATIONS).
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN ANY CASE WHERE THE DATE OF
TERMINATION AND THE RELEASE EXPIRATION DATE FALL IN TWO SEPARATE TAXABLE YEARS,
ANY PAYMENTS REQUIRED TO BE MADE TO EMPLOYEE THAT ARE TREATED AS DEFERRED
COMPENSATION FOR PURPOSES OF SECTION 409A OF THE CODE SHALL BE MADE IN THE LATER
TAXABLE YEAR.
10
SECTION 9.
RESTRICTIVE COVENANTS.
EMPLOYEE ACKNOWLEDGES AND AGREES
THAT (A) THE AGREEMENTS AND COVENANTS CONTAINED IN THIS SECTION 9 ARE
(I) REASONABLE AND VALID IN GEOGRAPHICAL AND TEMPORAL SCOPE AND IN ALL OTHER
RESPECTS AND (II) ESSENTIAL TO PROTECT THE VALUE OF THE BUSINESS AND ASSETS OF
THE COMPANY GROUP, AND (B) BY HIS EMPLOYMENT WITH THE COMPANY, EMPLOYEE HAS
OBTAINED AND WILL OBTAIN KNOWLEDGE, CONTACTS, KNOW-HOW, TRAINING, AND
EXPERIENCE, AND THERE IS A SUBSTANTIAL PROBABILITY THAT SUCH KNOWLEDGE,
CONTACTS, KNOW-HOW, TRAINING, AND EXPERIENCE COULD BE USED TO THE SUBSTANTIAL
ADVANTAGE OF A COMPETITOR OF THE COMPANY GROUP AND TO THE SUBSTANTIAL DETRIMENT
OF THE COMPANY GROUP.
(A)
CONFIDENTIAL INFORMATION.
AT ANY TIME DURING AND AFTER THE END OF
THE TERM OF EMPLOYMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE BOARD, EMPLOYEE
SHALL NOT DISCLOSE TO OR USE FOR THE BENEFIT OF ANY THIRD PARTY ANY CONFIDENTIAL
INFORMATION, 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 HIS BEST EFFORTS TO CONSULT WITH THE BOARD PRIOR TO
RESPONDING TO ANY SUCH ORDER OR SUBPOENA, AND EXCEPT AS REQUIRED IN THE
PERFORMANCE OF HIS DUTIES HEREUNDER.
(B)
NON-COMPETITION.
EMPLOYEE COVENANTS AND AGREES THAT DURING THE
RESTRICTED PERIOD, EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, INDIVIDUALLY OR
JOINTLY, OWN ANY INTEREST IN, OPERATE, JOIN, CONTROL, PARTICIPATE AS A PARTNER,
DIRECTOR, PRINCIPAL, OFFICER, OR AGENT OF, ENTER INTO THE EMPLOYMENT OF, ACT AS
A CONSULTANT TO, OR PERFORM ANY SERVICES FOR, ANY PERSON (OTHER THAN THE COMPANY
OR ANY OTHER MEMBER OF THE COMPANY GROUP), THAT ENGAGES IN ANY COMPETITIVE
ACTIVITIES WITHIN THE RESTRICTED AREA.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THIS SECTION 9(B) SHALL NOT PREVENT EMPLOYEE FROM ACQUIRING AS AN
INVESTMENT SECURITIES REPRESENTING NOT MORE THAN THREE PERCENT (3%) OF THE
OUTSTANDING VOTING SECURITIES OF ANY PUBLICLY HELD CORPORATION.
(C)
NON-INTERFERENCE.
DURING THE RESTRICTED PERIOD, EMPLOYEE SHALL
NOT, DIRECTLY OR INDIRECTLY, FOR HIS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OTHER
PERSON, ENGAGE IN INTERFERING ACTIVITIES.
(D)
NON-DISPARAGEMENT.
DURING THE TERM OF EMPLOYMENT, AND DURING THE
RESTRICTED PERIOD, EMPLOYEE SHALL NOT MAKE ANY DISPARAGING OR DEFAMATORY
COMMENTS REGARDING ANY MEMBER OF THE COMPANY GROUP OR THEIR RESPECTIVE CURRENT
OR FORMER DIRECTORS, OFFICERS, OR EMPLOYEES IN ANY RESPECT OR MAKE ANY COMMENTS
CONCERNING ANY ASPECT OF EMPLOYEE'S RELATIONSHIP