CURRENT OR PROSPECTIVE
CUSTOMER OF ANY MEMBER OF THE COMPANY AFFILIATED GROUP DURING THE EXECUTIVE'S
EMPLOYMENT AND WITH WHOM THE EXECUTIVE HAD CONTACT; PROVIDED, THAT,
NOTWITHSTANDING THE FOREGOING, THE EXECUTIVE SHALL NOT BE DEEMED TO BE IN
VIOLATION OF CLAUSE (I) OR CLAUSE (III) OF THE FOREGOING BY VIRTUE OF
(I) REJOINING FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP (OR ANY OF ITS
SUCCESSORS OR AFFILIATES) AS A PARTNER, MEMBER OR EMPLOYEE, AND ACTING IN SUCH
CAPACITY OR (II) ACTING AS AN ATTORNEY (AS PARTNER, SHAREHOLDER, MEMBER OR
EMPLOYEE) OR VICE PRESIDENT, DIRECTOR OR MANAGING DIRECTOR OR IN A SIMILAR
POSITION AT ANY OTHER LAW FIRM, INVESTMENT BANKING FIRM OR CONSULTING FIRM,
INSTITUTIONAL INVESTOR OR SIMILAR
15
ENTITY, IN EACH CASE SO LONG AS THE EXECUTIVE TAKES REASONABLE STEPS TO INSULATE
HIMSELF FROM THE BUSINESSES AND ACTIVITIES OF ANY SUCH ENTITY THAT COMPETE WITH
THE CORE BUSINESSES DURING ANY PERIOD THAT THIS SECTION 9(B) IS IN EFFECT.
(C)
PROPRIETARY RIGHTS.
THE EXECUTIVE ASSIGNS
ALL OF THE EXECUTIVE'S INTEREST IN ANY AND ALL INVENTIONS, DISCOVERIES,
IMPROVEMENTS AND PATENTABLE OR COPYRIGHTABLE WORKS INITIATED, CONCEIVED OR MADE
BY THE EXECUTIVE, EITHER ALONE OR IN CONJUNCTION WITH OTHERS, DURING THE
EMPLOYMENT TERM AND RELATED TO THE BUSINESS OR ACTIVITIES OF ANY MEMBER OF THE
COMPANY AFFILIATED GROUP TO THE COMPANY OR ITS NOMINEE.
WHENEVER REQUESTED TO
DO SO BY THE COMPANY, THE EXECUTIVE SHALL EXECUTE ANY AND ALL APPLICATIONS,
ASSIGNMENTS OR OTHER INSTRUMENTS THAT THE COMPANY SHALL IN GOOD FAITH DEEM
NECESSARY TO APPLY FOR AND OBTAIN TRADEMARKS, PATENTS OR COPYRIGHTS OF THE
UNITED STATES OR ANY FOREIGN COUNTRY OR OTHERWISE PROTECT THE INTEREST OF ANY
MEMBER OF THE COMPANY AFFILIATED GROUP THEREIN.
THESE OBLIGATIONS SHALL
CONTINUE BEYOND THE CONCLUSION OF THE EMPLOYMENT TERM WITH RESPECT TO
INVENTIONS, DISCOVERIES, IMPROVEMENTS OR COPYRIGHTABLE WORKS INITIATED,
CONCEIVED OR MADE BY THE EXECUTIVE DURING THE EMPLOYMENT TERM.
(D)
ACKNOWLEDGMENT.
THE EXECUTIVE EXPRESSLY
RECOGNIZES AND AGREES THAT THE RESTRAINTS IMPOSED BY THIS SECTION 9 ARE
REASONABLE AS TO TIME AND GEOGRAPHIC SCOPE AND ARE NOT OPPRESSIVE.
THE
EXECUTIVE FURTHER EXPRESSLY RECOGNIZES AND AGREES THAT THE RESTRAINTS IMPOSED BY
THIS SECTION 9 REPRESENT A REASONABLE AND NECESSARY RESTRICTION FOR THE
PROTECTION OF THE LEGITIMATE INTERESTS OF THE COMPANY AFFILIATED GROUP, THAT THE
FAILURE BY THE EXECUTIVE TO OBSERVE AND COMPLY WITH THE COVENANTS AND AGREEMENTS
IN THIS SECTION 9 WILL CAUSE IRREPARABLE HARM TO THE COMPANY AFFILIATED GROUP,
THAT IT IS AND WILL CONTINUE TO BE DIFFICULT TO ASCERTAIN THE HARM AND DAMAGES
TO THE COMPANY AFFILIATED GROUP THAT SUCH A FAILURE BY THE EXECUTIVE WOULD
CAUSE, THAT
16
THE CONSIDERATION RECEIVED BY THE EXECUTIVE FOR ENTERING INTO THESE COVENANTS
AND AGREEMENTS IS FAIR, THAT THE COVENANTS AND AGREEMENTS AND THEIR ENFORCEMENT
WILL NOT DEPRIVE THE EXECUTIVE OF AN ABILITY TO EARN A REASONABLE LIVING, AND
THAT THE EXECUTIVE HAS ACQUIRED KNOWLEDGE AND SKILLS IN THIS FIELD THAT WILL
ALLOW THE EXECUTIVE TO OBTAIN EMPLOYMENT WITHOUT VIOLATING THESE COVENANTS AND
AGREEMENTS.
THE EXECUTIVE FURTHER EXPRESSLY ACKNOWLEDGES THAT