OR ITS
AFFILIATES HAVE SPECIFIC PLANS AT THE TIME OF THE TERMINATION EVENT TO ENGAGE IN
ONE OR MORE SUCH ACTIVITIES, OF WHICH PLANS EXECUTIVE IS AWARE AT THAT TIME).
NOTWITHSTANDING THE PRECEDING SENTENCE, A PERSON OR ENTITY SHALL BE TREATED AS A
COMPETITIVE BUSINESS FOR PURPOSES OF THIS AGREEMENT ONLY IF THE COMPANY INCLUDES
SUCH PERSON OR ENTITY (WHICH, UNLESS OTHERWISE SPECIFIED BY THE COMPANY, SHALL
BE CONSIDERED TO INCLUDE ALL OF THE SUBSIDIARIES AND OTHER AFFILIATES OF SUCH
LISTED PERSON OR ENTITY) ON A LIST TO BE PREPARED BY THE COMPANY AT OR SHORTLY
AFTER THE TIME OF THE TERMINATION EVENT, SUCH LIST IS PROVIDED TO EXECUTIVE, AND
SUCH LIST INCLUDES NOT MORE THAN 15 PERSONS OR ENTITIES.
Notwithstanding any provision in this Agreement to the contrary, it shall not be
a violation of this Section 5.4(c) if any one or more of the following shall
occur:
(I)
EXECUTIVE MAY OWN, DIRECTLY OR INDIRECTLY, SOLELY AS A PASSIVE
INVESTMENT, SECURITIES OF ANY PERSON ENGAGED IN A COMPETITIVE BUSINESS, WHICH
SECURITIES ARE PUBLICLY TRADED ON A NATIONAL OR REGIONAL STOCK EXCHANGE OR ON
THE OVER-THE-COUNTER MARKET, IF EXECUTIVE (A) IS NOT A CONTROLLING PERSON OF, OR
A MEMBER OF A GROUP THAT CONTROLS, SUCH PERSON AND (B) DOES NOT, DIRECTLY OR
INDIRECTLY, OWN 5% OR MORE OF ANY CLASS OF SECURITIES OF SUCH PERSON.
(II)
IF EXECUTIVE IS PROVIDING SERVICES TO OR FOR THE BENEFIT OF AN
ENTITY THAT HAS TWO OR MORE DISTINCT BUSINESS UNITS, AT LEAST ONE OF WHICH DOES
NOT CONSTITUTE A COMPETITIVE BUSINESS, EXECUTIVE MAY PROVIDE SERVICES TO SUCH
ENTITY SO LONG AS EXECUTIVE DOES NOT PROVIDE SERVICES, DIRECTLY OR INDIRECTLY,
TO OR FOR THE BENEFIT OF A BUSINESS UNIT THAT CONSTITUTES A COMPETITIVE
BUSINESS.
(III)
IF EXECUTIVE IS PROVIDING SERVICES TO OR FOR THE BENEFIT OF AN
ENTITY THAT DOES NOT ENGAGE IN A COMPETITIVE BUSINESS, AND SUCH ENTITY
SUBSEQUENTLY IS ACQUIRED BY A PERSON OR ENTITY THAT DOES ENGAGE IN A COMPETITIVE
BUSINESS, EXECUTIVE MAY CONTINUE SUCH EMPLOYMENT SO LONG AS EXECUTIVE DOES NOT
PERSONALLY ENGAGE, DIRECTLY OR INDIRECTLY, IN SUCH COMPETITIVE BUSINESS OR
OTHERWISE ADVISE OR ASSIST SUCH COMPETITIVE BUSINESS.
(D)
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALTHOUGH EXECUTIVE AND
THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN THIS SECTION 5.4 TO BE
REASONABLE, IF A FINAL JUDICIAL DETERMINATION IS MADE BY A COURT OF COMPETENT
JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER RESTRICTION CONTAINED IN
THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST EXECUTIVE, THE PROVISIONS
OF THIS AGREEMENT SHALL NOT BE RENDERED VOID BUT SHALL BE DEEMED AMENDED TO
APPLY AS TO SUCH MAXIMUM TIME OR TERRITORY AND TO SUCH MAXIMUM EXTENT AS SUCH
COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE ENFORCEABLE.
ALTERNATIVELY, IF
ANY COURT OF COMPETENT JURISDICTION FINDS THAT ANY RESTRICTION CONTAINED IN THIS
AGREEMENT IS UNENFORCEABLE, AND SUCH RESTRICTION CANNOT BE AMENDED SO AS TO MAKE
IT ENFORCEABLE, SUCH FINDING SHALL NOT AFFECT THE ENFORCEABILITY OF ANY OF THE
OTHER RESTRICTIONS CONTAINED HEREIN.
(E)
EXECUTIVE