OR FTDI'S SUBSIDIARIES OR SUCCESSORS.
THE EXECUTIVE AGREES AND ACKNOWLEDGES THAT ALL OF SUCH INFORMATION, IN ANY FORM,
AND COPIES AND EXTRACTS THEREOF ARE AND SHALL REMAIN THE SOLE AND EXCLUSIVE
PROPERTY OF THE COMPANY, AND UPON TERMINATION OF HIS EMPLOYMENT WITH THE
COMPANY, THE EXECUTIVE SHALL RETURN TO THE COMPANY THE ORIGINALS AND ALL COPIES
(AND SHALL DELETE ALL SUCH ITEMS IN ELECTRONIC FORMAT) OF ANY SUCH INFORMATION
PROVIDED TO OR ACQUIRED BY THE EXECUTIVE IN CONNECTION WITH THE PERFORMANCE OF
HIS DUTIES FOR THE COMPANY, AND SHALL RETURN TO THE COMPANY ALL FILES,
CORRESPONDENCE, COMPUTER EQUIPMENT AND DISKS OR OTHER COMMUNICATIONS (INCLUDING
ANY SUCH MATERIALS IN ELECTRONIC FORMAT) RECEIVED, MAINTAINED OR ORIGINATED BY
THE EXECUTIVE DURING THE COURSE OF HIS EMPLOYMENT.
(C)
NO INTERFERENCE AND
NON-SOLICITATION.
DURING THE RESTRICTED PERIOD, THE EXECUTIVE SHALL NOT,
WHETHER FOR HIS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OTHER INDIVIDUAL,
PARTNERSHIP, FIRM, CORPORATION OR OTHER BUSINESS ORGANIZATION (OTHER THAN THE
COMPANY), SOLICIT, ENDEAVOR TO ENTICE AWAY FROM THE COMPANY, FTDI, OR ANY OF THE
COMPANY'S OR FTDI'S SUBSIDIARIES OR AFFILIATED COMPANIES, OR OTHERWISE INTERFERE
WITH THE RELATIONSHIP OF THE COMPANY
2
OR ANY OF ITS SUBSIDIARIES OR AFFILIATED COMPANIES WITH, ANY PERSON WHO, TO THE
KNOWLEDGE OF THE EXECUTIVE, IS (OR HAS AT ANY TIME WITHIN THE PRECEDING THREE
MONTHS BEEN) EMPLOYED BY OR OTHERWISE ENGAGED TO PERFORM SERVICES FOR THE
COMPANY, FTDI OR ANY OF THE COMPANY'S OR FTDI'S SUBSIDIARIES OR AFFILIATED
COMPANIES (INCLUDING, BUT NOT LIMITED TO, ANY INDEPENDENT SALES REPRESENTATIVES
OR ORGANIZATIONS) OR ANY ENTITY WHO IS, OR WAS WITHIN THE THEN MOST RECENT
12-MONTH PERIOD, A CUSTOMER OR CLIENT OF THE COMPANY, FTDI, ANY PREDECESSOR OF
THE COMPANY OR FTDI OR ANY OF THE COMPANY'S OR FTDI'S SUBSIDIARIES OR AFFILIATED
COMPANIES (A "CUSTOMER") OR A SUPPLIER OR VENDOR OF THE COMPANY OR FTDI OR ANY
OF THE COMPANY'S OR FTDI'S SUBSIDIARIES OR AFFILIATED COMPANIES (A "SUPPLIER");
PROVIDED, HOWEVER, THAT THIS SECTION 1(C) SHALL NOT PROHIBIT THE EXECUTIVE FROM
EMPLOYING, FOR HIS OWN ACCOUNT, FOLLOWING A TERMINATION OF THE EMPLOYMENT OF THE
EXECUTIVE, ANY PERSON EMPLOYED BY A CUSTOMER OR SUPPLIER, IF SUCH EMPLOYMENT IS
NOT IN CONNECTION WITH A COMPETITIVE ACTIVITY.
SECTION 2.
CALCULATION OF TIME PERIOD.
THE
EXECUTIVE AGREES THAT IF THE EXECUTIVE VIOLATES THE PROVISIONS OF
SECTION 1(A) OF THIS AGREEMENT, THE RUNNING OF THE RESTRICTED PERIOD SHALL BE
TOLLED FOR THE PERIOD IN WHICH THE EXECUTIVE IS IN VIOLATION OF SUCH
NON-COMPETITION PROVISIONS.
THE EXECUTIVE UNDERSTANDS THAT THE FOREGOING
RESTRICTIONS MAY LIMIT THE EXECUTIVE'S ABILITY TO EARN A LIVELIHOOD IN A
BUSINESS ENGAGED IN A COMPETITIVE ACTIVITY, BUT THE EXECUTIVE NEVERTHELESS
BELIEVES THAT THE EXECUTIVE HAS RECEIVED AND WILL RECEIVE SUFFICIENT
CONSIDERATION AND OTHER BENEFITS AS AN EMPLOYEE OF THE COMPANY AND AS OTHERWISE
PROVIDED IN CONNECTION WITH THE MERGER TO CLEARLY JUSTIFY RESTRICTIONS THAT, IN
ANY EVENT, GIVEN HIS EDUCATION, SKILLS AND ABILITY, THE EXECUTIVE DOES NOT
BELIEVE WOULD PREVENT THE EXECUTIVE FROM EARNING A LIVING.
SECTION 3.
IRREPARABLE INJURY.
IT IS