THE CONFIDENTIAL INFORMATION, TOGETHER WITH ALL COPIES
THEREOF, THAT ARE IN THE PARTICIPANT'S POSSESSION OR CONTROL, OTHER THAN SUCH
MATERIALS AS SHALL BE NECESSARY TO PERMIT THE PARTICIPANT TO PREPARE THE
PARTICIPANT'S TAX RETURNS.
(5)
NOTHING IN THIS SECTION 5.2 SHALL BE
CONSTRUED SO AS TO PREVENT THE PARTICIPANT FROM USING, IN CONNECTION WITH
HIS/HER EMPLOYMENT FOR HIMSELF OR AN EMPLOYER OTHER THAN THE COMPANY OR ANY OF
ITS AFFILIATES, KNOWLEDGE THAT WAS ACQUIRED BY PARTICIPANT DURING THE COURSE OF
HIS/HER EMPLOYMENT WITH THE COMPANY AND ITS AFFILIATES, AND WHICH IS GENERALLY
KNOWN TO PERSONS OF HIS/HER EXPERIENCE IN OTHER COMPANIES IN THE SAME INDUSTRY.
5.3
NONCOMPETITION AND NONSOLICITATION.
EACH
PARTICIPANT WHO BECOMES ELIGIBLE FOR A RETENTION BONUS UNDER THIS PLAN AGREES AS
FURTHER CONSIDERATION FOR SUCH BENEFIT AND IN CONSIDERATION OF THE RECEIPT OF
CONFIDENTIAL INFORMATION FROM THE COMPANY OR ANY OF ITS AFFILIATES, FOR THE
LONGER OF (I) ONE (1) YEAR AFTER THE DATE OF TERMINATION, OR (II) THE PERIOD
DURING WHICH THE PARTICIPANT RECEIVES RETENTION BONUS PAYMENTS UNDER
SECTION 4.1, THE PARTICIPANT SHALL NOT (I) TO THE EXTENT PARTICIPANT IS LISTED
ON EXHIBIT A-1 HERETO, BE EMPLOYED BY, OR OTHERWISE ENGAGE OR BE INTERESTED IN,
ANY BUSINESS WHICH IS COMPETITIVE WITH ANY BUSINESS OF THE COMPANY OR OF ANY OF
ITS AFFILIATES IN WHICH THE PARTICIPANT WAS ENGAGED DURING HIS/HER EMPLOYMENT
PRIOR TO HIS/HER TERMINATION, (II) SOLICIT, DIRECTLY OR INDIRECTLY, ANY
PROSPECTIVE ACQUISITION TARGET OF THE COMPANY OR ITS AFFILIATES, THE KNOWLEDGE
OF WHICH WAS ACQUIRED BY PARTICIPANT DURING THE COURSE OF HIS/HER EMPLOYMENT
WITH THE COMPANY AND ITS AFFILIATES, FOR THE PURPOSE OF ACQUIRING SUCH
PROSPECTIVE ACQUISITION TARGET OR OTHERWISE PROVIDING SUCH TARGET ANY SERVICES
OR PRODUCTS OFFERED BY OR AVAILABLE FROM THE COMPANY OR ITS AFFILIATES; OR (III)
EMPLOY OR SOLICIT, DIRECTLY OR INDIRECTLY, FOR EMPLOYMENT ANY PERSON WHO IS AN
EMPLOYEE OF THE COMPANY OR ANY OF ITS AFFILIATES OR WHO WAS AN EMPLOYEE OF THE
COMPANY OR ANY OF ITS AFFILIATES AT ANY TIME DURING THE 12 MONTH PERIOD
IMMEDIATELY PRIOR TO ANY SUCH SOLICITATION OR EMPLOYMENT.
NOTWITHSTANDING THE
FOREGOING, IT IS UNDERSTOOD THAT THE PARTICIPANT MAY BENEFICIALLY OWN SECURITIES
IN ANY CORPORATION WHOSE SECURITIES ARE
4
PUBLICLY TRADED, PROVIDED THAT SUCH OWNERSHIP SHALL BE LESS THAN TWO (2%)
PERCENT OF THE EQUITY SECURITIES OF ANY SUCH CORPORATION.
SECTION 6
AMENDMENT OR TERMINATION
6.1
AMENDMENT AND TERMINATION.
THE BOARD MAY,
FROM TIME TO TIME, MAKE AMENDMENTS TO THE PLAN, AND MAY TERMINATE THIS PLAN AT
ANY TIME; PROVIDED, HOWEVER THAT NO SUCH AMENDMENT SHALL HAVE ANY ADVERSE EFFECT
ON THE RETENTION BONUS GRANTS MADE AS OF THE EFFECTIVE DATE OF THE PLAN.
6.2
SUCCESSORS.
THE OBLIGATIONS OF THE COMPANY
UNDER THE PLAN SHALL BE BINDING UPON ANY ASSIGNEE OR SUCCESSOR IN INTEREST
THERETO.
SECTION 7
MISCELLANEOUS
7.1
ADJUSTMENT FOR TAX EFFECTS.
IF ANY PAYMENTS
OR THE VALUE OF ANY BENEFITS RECEIVED OR TO BE RECEIVED BY THE PARTICIPANT UNDER
THIS PLAN, AFTER TAKING INTO ACCOUNT ALL OTHER PAYMENTS AND ALL OTHER BENEFITS