DIRECTOR, OFFICER, EMPLOYEE, PARTNER, CONSULTANT,
AGENT OR ADVISOR) WITH A COMPETITIVE ENTERPRISE IN A RESTRICTED TERRITORY AND IN
CONNECTION WITH SUCH PARTICIPANT'S ASSOCIATION ENGAGE, OR DIRECTLY OR INDIRECTLY
MANAGE OR SUPERVISE PERSONNEL ENGAGED, IN ANY ACTIVITY:
(VIII)
THAT IS SUBSTANTIALLY RELATED TO ANY ACTIVITY THAT THE PARTICIPANT
WAS ENGAGED IN WITH THE COMPANY DURING THE 12 MONTHS BEFORE THE DATE OF
TERMINATION OF THE PARTICIPANT'S EMPLOYMENT,
(IX)
THAT IS SUBSTANTIALLY RELATED TO ANY ACTIVITY FOR WHICH THE
PARTICIPANT HAD DIRECT OR INDIRECT MANAGERIAL OR SUPERVISORY RESPONSIBILITY WITH
THE COMPANY DURING THE 12 MONTHS BEFORE THE DATE OF TERMINATION, OR
(X)
THAT CALLS FOR THE APPLICATION OF SPECIALIZED KNOWLEDGE OR SKILLS
SUBSTANTIALLY RELATED TO THOSE USED BY THE PARTICIPANT IN HIS OR HER ACTIVITIES
WITH THE COMPANY DURING THE 12 MONTHS BEFORE THE DATE OF TERMINATION.
For purposes of this Plan, "Restricted Territory" means the geographic area of
all counties in which the Company (or its subsidiaries) has a branch. In
addition, for the purposes of this Plan, each Participant whose Severance
Multiple is more than 2 is part of "executive and management personnel" of the
Company within the meaning of C.R.S. § 8-2-113(2).
10
(D)
BY A PARTICIPANT'S ACCEPTANCE OF PAYMENTS UNDER THIS PLAN, HE OR
SHE SHALL BE DEEMED TO HAVE ACKNOWLEDGED THAT VIOLATION OF SECTIONS 9(A),
9(B) OR 9(C) OF THIS PLAN WOULD CAUSE THE COMPANY IRREPARABLE DAMAGE FOR WHICH
THE COMPANY CANNOT BE REASONABLY COMPENSATED IN DAMAGES IN AN ACTION AT LAW, AND
THAT THEREFORE, IN THE EVENT OF ANY BREACH BY HIM OR HER OF SUCH SECTIONS, THE
COMPANY SHALL BE ENTITLED TO MAKE APPLICATION TO A COURT OF COMPETENT
JURISDICTION FOR EQUITABLE RELIEF BY WAY OF INJUNCTION OR OTHERWISE (WITHOUT
BEING REQUIRED TO POST A BOND). THIS PROVISION SHALL NOT, HOWEVER, BE CONSTRUED
AS A WAIVER OF ANY OF THE RIGHTS WHICH THE COMPANY MAY HAVE FOR DAMAGES UNDER
THIS PLAN OR OTHERWISE, AND, EXCEPT AS LIMITED IN SECTION 13(B), ALL OF THE
COMPANY'S RIGHTS AND REMEDIES SHALL BE UNRESTRICTED.
10.
SUCCESSORS; BINDING AGREEMENT.
(A)
THE COMPANY WILL REQUIRE ANY SUCCESSOR (WHETHER DIRECT OR
INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY TO
UNCONDITIONALLY ASSUME ALL OF THE OBLIGATIONS OF THE COMPANY HEREUNDER. FAILURE
OF THE COMPANY TO OBTAIN SUCH ASSUMPTION BEFORE THE EFFECTIVENESS OF ANY SUCH
SUCCESSION SHALL CONSTITUTE GOOD REASON HEREUNDER AND SHALL ENTITLE THE
PARTICIPANT TO COMPENSATION AND OTHER BENEFITS FROM THE COMPANY IN THE SAME
AMOUNT AND ON THE SAME TERMS AS THE PARTICIPANT WOULD BE ENTITLED HEREUNDER IF
THE PARTICIPANT'S EMPLOYMENT WERE TERMINATED FOLLOWING A CHANGE IN CONTROL BY
REASON OF A QUALIFYING TERMINATION, EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE
FOREGOING, THE DATE ON WHICH ANY SUCCESSION BECOMES EFFECTIVE SHALL BE DEEMED
THE DATE OF TERMINATION.
(B)
THE BENEFITS PROVIDED UNDER THIS PLAN SHALL INURE TO THE BENEFIT
OF AND BE ENFORCEABLE BY THE PARTICIPANT'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND