PARTIES (INCLUDING ANY
INDEPENDENT CONTRACTOR OR CONSULTANT).
(C)
THE PARTIES HERETO ACKNOWLEDGE AND AGREE
THAT, NOTWITHSTANDING ANYTHING IN SECTION 5.3(B)(I) HEREOF, (I) THE EXECUTIVE
MAY OWN OR HOLD, SOLELY AS PASSIVE INVESTMENTS, SECURITIES OF PERSONS ENGAGED IN
ANY BUSINESS THAT WOULD OTHERWISE BE INCLUDED IN SECTION 5.3(B)(I), AS LONG AS
WITH RESPECT TO EACH SUCH INVESTMENT THE SECURITIES HELD BY THE EXECUTIVE DO NOT
EXCEED FIVE PERCENT (5%) OF THE OUTSTANDING SECURITIES OF SUCH PERSON AND SUCH
SECURITIES ARE PUBLICLY TRADED AND REGISTERED UNDER SECTION 12 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT"), AND (II) THE EXECUTIVE
MAY SERVE ON THE BOARD OF DIRECTORS (OR OTHER COMPARABLE POSITION) OR AS AN
OFFICER OF ANY ENTITY AT THE REQUEST OF THE BOARD; PROVIDED, HOWEVER, THAT IN
THE CASE OF INVESTMENTS OTHERWISE PERMITTED UNDER CLAUSE (I) ABOVE, THE
EXECUTIVE SHALL NOT BE PERMITTED TO, DIRECTLY OR INDIRECTLY, PARTICIPATE IN, OR
ATTEMPT TO INFLUENCE, THE MANAGEMENT, DIRECTION OR POLICIES OF (OTHER THAN
THROUGH THE EXERCISE OF ANY VOTING RIGHTS HELD BY THE EXECUTIVE IN CONNECTION
WITH SUCH SECURITIES), OR LEND THE EXECUTIVE'S NAME TO, ANY SUCH PERSON.
(D)
THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT,
FOR PURPOSES OF THIS SECTION 5.3, INDIRECT ACTS BY THE EXECUTIVE SHALL INCLUDE,
WITHOUT LIMITATION, AN ACT BY THE EXECUTIVE'S SPOUSE, ANCESTOR, LINEAL
DESCENDANT, LINEAL DESCENDANT'S SPOUSE, SIBLING OR OTHER MEMBER OF THE
EXECUTIVE'S IMMEDIATE FAMILY.
(E)
THE EXECUTIVE ACKNOWLEDGES THAT (I) THE
RESTRICTIVE COVENANTS CONTAINED IN THIS SECTION 5.3 HEREOF ARE ANCILLARY TO AND
PART OF AN OTHERWISE ENFORCEABLE AGREEMENT, SUCH BEING THE AGREEMENTS CONCERNING
CONFIDENTIAL INFORMATION AND OTHER CONSIDERATION AS STATED IN THIS AGREEMENT,
(II) AT THE TIME THAT THESE RESTRICTIVE COVENANTS ARE MADE, THE LIMITATIONS AS
TO TIME, GEOGRAPHIC SCOPE AND ACTIVITY TO BE RESTRAINED, AS DESCRIBED HEREIN,
ARE REASONABLE AND DO NOT IMPOSE A GREATER RESTRAINT THAN NECESSARY TO PROTECT
THE GOOD WILL AND OTHER LEGITIMATE BUSINESS INTERESTS OF THE COMPANY, INCLUDING
WITHOUT LIMITATION, CONFIDENTIAL INFORMATION (INCLUDING TRADE SECRETS), CLIENT,
CUSTOMER AND/OR VENDOR RELATIONSHIPS, CLIENT AND/OR CUSTOMER GOODWILL AND
BUSINESS PRODUCTIVITY, (III) IN THE EVENT OF TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT, THE EXECUTIVE'S EXPERIENCES AND CAPABILITIES ARE SUCH THAT THE
EXECUTIVE CAN OBTAIN GAINFUL EMPLOYMENT WITHOUT VIOLATING THIS AGREEMENT AND
WITHOUT THE EXECUTIVE INCURRING UNDUE HARDSHIP, (IV) BASED ON THE RELEVANT
BENEFITS AND OTHER NEW CONSIDERATION PROVIDED FOR IN THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, THE DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION, THE
RESTRICTIVE COVENANTS OF THIS SECTION 5.3, AS APPLICABLE ACCORDING TO THEIR
TERMS, SHALL REMAIN IN FULL FORCE AND EFFECT EVEN IN THE EVENT OF THE
EXECUTIVE'S INVOLUNTARY TERMINATION FROM EMPLOYMENT, WITH OR WITHOUT CAUSE AND
(V) THE EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT AND HAS GIVEN CAREFUL
CONSIDERATION TO THE RESTRAINTS IMPOSED UPON THE EXECUTIVE BY THIS AGREEMENT AND
CONSENTS TO THE TERMS OF THE RESTRICTIVE COVENANTS IN THIS SECTION 5.3, WITH THE
KNOWLEDGE THAT THIS AGREEMENT MAY BE TERMINATED AT ANY TIME IN ACCORDANCE WITH
THE PROVISIONS HEREOF.
14
5.4
DEFINITIONS.
FOR PURPOSES OF THIS AGREEMENT,