(II)
NOTWITHSTANDING THE FOREGOING, THE
AGGREGATE OWNERSHIP BY THE EXECUTIVE OF NO MORE THAN TWO PERCENT (2%) (ON A
FULLY-DILUTED BASIS) OF THE OUTSTANDING EQUITY SECURITIES OF ANY ENTITY, WHICH
SECURITIES ARE TRADED ON A NATIONAL OR FOREIGN SECURITIES EXCHANGE, QUOTED ON
THE NASDAQ STOCK MARKET OR OTHER AUTOMATED QUOTATION SYSTEM, AND WHICH ENTITY
COMPETES WITH THE COMPANY (OR ANY PART THEREOF) WITHIN THE TERRITORY, SHALL NOT
(BY ITSELF) BE DEEMED TO BE GIVING OR LENDING FUNDS TO, OTHERWISE FINANCING OR
HAVING A FINANCIAL INTEREST IN A COMPETITOR.
IN THE EVENT THAT ANY ENTITY IN
WHICH THE EXECUTIVE HAS ANY FINANCIAL OR OTHER INTEREST DIRECTLY OR INDIRECTLY
ENTERS INTO THE LINE OF BUSINESS DURING THE NON-COMPETE PERIOD, THE EXECUTIVE
SHALL DIVEST ALL OF HIS INTEREST (OTHER THAN ANY AMOUNT PERMITTED TO BE HELD
PURSUANT TO THE FIRST SENTENCE OF THIS SECTION 7(A)(II)) IN SUCH ENTITY WITHIN
THIRTY (30) DAYS AFTER LEARNING THAT SUCH ENTITY HAS ENTERED THE LINE OF
BUSINESS.
10
(III)
THE EXECUTIVE COVENANTS AND AGREES THAT
DURING THE PERIOD COMMENCING ON THE DATE HEREOF AND ENDING ON THE LATER OF (X)
THE FIRST ANNIVERSARY OF THE TERMINATION OF THE EMPLOYMENT PERIOD OR (Y) FOR SO
LONG AS SEVERANCE PAYMENTS ARE BEING MADE TO THE EXECUTIVE PURSUANT TO
SECTION 4(C), THE EXECUTIVE WILL NOT, DIRECTLY OR INDIRECTLY, EITHER FOR HIMSELF
OR FOR ANY OTHER PERSON, (1) SOLICIT ANY EMPLOYEE OF THE COMPANY (OTHER THAN
SUCH EXECUTIVE'S PERSONAL ASSISTANT OR SECRETARY) OR ANY AFFILIATE TO TERMINATE
HIS OR HER EMPLOYMENT WITH THE COMPANY OR ANY AFFILIATE, (2) EMPLOY ANY SUCH
INDIVIDUAL DURING HIS OR HER EMPLOYMENT WITH THE COMPANY OR ANY AFFILIATE AND
FOR A PERIOD OF SIX MONTHS AFTER SUCH INDIVIDUAL TERMINATES HIS OR HER
EMPLOYMENT WITH THE COMPANY OR ANY AFFILIATE OR (3) SOLICIT ANY VENDOR OR
BUSINESS AFFILIATE OF THE COMPANY TO CEASE TO DO BUSINESS WITH THE COMPANY OR TO
CHANGE ITS PRACTICES WITH RESPECT TO THE COMPANY OR ANY AFFILIATE.
(B)
THE EXECUTIVE UNDERSTANDS THAT THE FOREGOING
RESTRICTIONS MAY LIMIT HIS ABILITY TO EARN A LIVELIHOOD IN A BUSINESS SIMILAR TO
THE BUSINESS OF THE COMPANY OR ITS AFFILIATES, BUT HE NEVERTHELESS BELIEVES THAT
HE HAS RECEIVED AND WILL RECEIVE SUFFICIENT CONSIDERATION AND OTHER BENEFITS AS
AN EMPLOYEE OF THE COMPANY OR HOLDER OF COMMON STOCK OF PARENT AND AS OTHERWISE
PROVIDED HEREUNDER TO CLEARLY JUSTIFY SUCH RESTRICTIONS WHICH, IN ANY EVENT
(GIVEN HIS EDUCATION, SKILLS AND ABILITY), THE EXECUTIVE DOES NOT BELIEVE WOULD
PREVENT HIM FROM OTHERWISE EARNING A LIVING.
(C)
THE COVENANTS CONTAINED IN SECTION 7(A) AND
7(B) ARE FOR THE SOLE BENEFIT OF THE COMPANY AND MAY BE REDUCED (BUT NOT
INCREASED) IN SCOPE, OR CURTAILED AS TO TERRITORY, TIME PERIOD, OR BOTH, WITHOUT
RESULTING IN A MODIFICATION OF ANY OTHER PROVISION OF THIS AGREEMENT, AS THE
COMPANY MAY DETERMINE IN ITS SOLE DISCRETION.
(D)
THE PROVISIONS OF THIS SECTION 7 SHALL
TERMINATE IN THE EVENT THE COMPANY FAILS TO MAKE ANY PAYMENTS REQUIRED BY
SECTION 4(C) AND SUCH FAILURE REMAINS