CORPORATE OFFICER, DIRECTOR OR
OTHERWISE), NOR HAVING ANY OWNERSHIP INTERESTED IN OR PARTICIPATING IN THE
FINANCING, OPERATION, MANAGEMENT OR CONTROL OF, ANY PERSON, FIRM, CORPORATION OR
BUSINESS THAT COMPETES WITH THE COMPANY OR IS A CUSTOMER OR CLIENT OF THE
COMPANY DURING THE ONE YEAR PERIOD FOLLOWING THE EMPLOYMENT TERMINATION DATE
("COMPETITION") ; PROVIDED, HOWEVER, THAT FOLLOWING HIS TERMINATION OF
EMPLOYMENT WITH THE COMPANY, CONSULTANT SHALL BE PERMITTED TO WORK FOR AN ENTITY
IN COMPETITION WITH THE COMPANY WHOSE PRIMARY BUSINESS IS NOT PROVIDING PRODUCTS
OR SERVICES COMPETITIVE WITH THE PRODUCTS OR SERVICES OF THE COMPANY, SO LONG
CONSULTANT DOES NOT ENGAGE IN A BUSINESS THAT MAKES SUCH ENTITY IN COMPETITION
WITH THE COMPANY.
NOTWITHSTANDING THE FOREGOING, CONSULTANT MAY, WITHOUT
VIOLATING THIS SECTION 8, OWN, AS A PASSIVE INVESTMENT, SHARES OF CAPITAL STOCK
OF A PUBLICLY-HELD CORPORATION THAT ENGAGES IN COMPETITION WHERE THE NUMBER OF
SHARES OF SUCH CORPORATION'S CAPITAL STOCK THAT ARE OWNED BY CONSULTANT
REPRESENT LESS THAN THREE PERCENT OF THE TOTAL NUMBER OF SHARES OF SUCH
CORPORATION'S CAPITAL STOCK OUTSTANDING.
MOREOVER, CONSULTANT MAY PETITION THE
COMPANY'S CHIEF EXECUTIVE OFFICER FOR WRITTEN PERMISSION TO BE EMPLOYED BY AN
ENTITY IN COMPETITION, WHICH PERMISSION SHALL NOT UNREASONABLY BE WITHHELD IF,
THE CHIEF EXECUTIVE OFFICER IN HIS SOLE DISCRETION, DETERMINES THAT SUCH
EMPLOYMENT WILL NOT UNDULY COMPROMISE THE COMPANY.
(B)
NON-SOLICITATION.
UNTIL THE DATE 12 MONTHS AFTER THE TERMINATION
OF CONSULTANT'S EMPLOYMENT WITH THE COMPANY FOR ANY REASON, CONSULTANT AGREES
AND ACKNOWLEDGES THAT CONSULTANT'S RIGHT TO RECEIVE THE SEVERANCE PAYMENTS SET
FORTH IN SECTION 4 (TO THE EXTENT CONSULTANT IS OTHERWISE ENTITLED TO SUCH
PAYMENTS) SHALL BE CONDITIONED UPON CONSULTANT NOT EITHER DIRECTLY OR INDIRECTLY
SOLICITING, INDUCING, RECRUITING OR ENCOURAGING AN EMPLOYEE TO LEAVE HIS OR HER
EMPLOYMENT EITHER FOR CONSULTANT OR FOR ANY OTHER ENTITY OR PERSON WITH WHICH OR
WHOM CONSULTANT HAS A BUSINESS RELATIONSHIP.
(C)
UNDERSTANDING OF COVENANTS.
CONSULTANT REPRESENTS THAT HE (I) IS
FAMILIAR WITH THE FOREGOING COVENANTS NOT TO COMPETE AND NOT TO SOLICIT, AND
(II) IS FULLY AWARE OF HIS OBLIGATIONS HEREUNDER, INCLUDING, WITHOUT LIMITATION,
THE REASONABLENESS OF THE LENGTH OF TIME, SCOPE AND GEOGRAPHIC COVERAGE OF THESE
COVENANTS.
(D)
REMEDY FOR BREACH.
UPON ANY BREACH OF THIS SECTION BY CONSULTANT,
ALL SEVERANCE PAYMENTS PURSUANT TO SECTION 4 SHALL IMMEDIATELY CEASE, AND THAT
SHALL BE THE SOLE REMEDY AVAILABLE TO THE COMPANY FOR SUCH BREACH.
6
9.
NO PENDING OR FUTURE LAWSUITS.
CONSULTANT REPRESENTS THAT HE HAS
NO LAWSUITS, CLAIMS, OR ACTIONS PENDING IN HIS NAME, OR ON BEHALF OF ANY OTHER
PERSON OR ENTITY, AGAINST THE COMPANY OR ANY OTHER PERSON OR ENTITY REFERRED TO
HEREIN.
CONSULTANT ALSO REPRESENTS THAT HE DOES NOT INTEND TO BRING ANY CLAIMS
ON HIS OWN BEHALF OR ON BEHALF OF ANY OTHER PERSON OR ENTITY AGAINST THE COMPANY
OR ANY OTHER PERSON OR ENTITY REFERRED TO HEREIN, EXCEPT AS NECESSARY TO ENFORCE
HIS RIGHTS WITH RESPECT TO ANY CONTINUING OBLIGATIONS OF THE COMPANY NOT
RELEASED HEREIN.
THE COMPANY REPRESENTS THAT THE COMPANY HAS NO LAWSUITS,
CLAIMS,