ABOVE
AND THEN HELD BY EMPLOYEE SHALL BE FORFEITED AND RETURNED TO THE COMPANY WITHOUT
CONSIDERATION, AND
(D)
IN THE EVENT EMPLOYEE HAS SOLD OR OTHERWISE DISPOSED OF SHARES
ACQUIRED PURSUANT TO THE VESTING OF ANY RSU WITHIN FIVE (5) YEARS PRIOR TO THE
DATE OF BOARD DETERMINATION OF (I), (II), OR (III) ABOVE OR WITHIN THREE
(3) YEARS PRIOR TO THE DATE OF BOARD DETERMINATION OF (IV) ABOVE, EMPLOYEE SHALL
PAY TO THE COMPANY THE GREATER OF (X) ANY PROCEEDS RECEIVED FROM SUCH SALE OR
OTHER DISPOSITION, OR (Y) THE FAIR MARKET VALUE (AS DETERMINED BY THE BOARD IN
GOOD FAITH) OF SUCH SHARES AS OF THE DATE OF BOARD DETERMINATION OF MISCONDUCT
OR BREACH.
(6) Insert for SVP and above.
4
SECTION 4
NON-COMPETITION AND CONFIDENTIALITY
4.1.
NON-COMPETITION.
(A)
FROM THE DATE HEREOF WHILE EMPLOYED BY THE COMPANY AND FOR A
ONE-YEAR PERIOD FOLLOWING THE DATE EMPLOYEE CEASES TO BE EMPLOYED BY THE COMPANY
(THE "RESTRICTED PERIOD"), IRRESPECTIVE OF THE CAUSE, MANNER OR TIME OF ANY
TERMINATION, EMPLOYEE SHALL NOT USE HIS OR HER STATUS WITH THE COMPANY TO OBTAIN
LOANS, GOODS OR SERVICES FROM ANOTHER ORGANIZATION ON TERMS THAT WOULD NOT BE
AVAILABLE TO HIM OR HER IN THE ABSENCE OF HIS OR HER RELATIONSHIP TO THE
COMPANY.
(B)
DURING THE RESTRICTED PERIOD, EMPLOYEE SHALL NOT MAKE ANY
STATEMENTS OR PERFORM ANY ACTS INTENDED TO OR WHICH MAY HAVE THE EFFECT OF
ADVANCING THE INTEREST OF ANY COMPETITORS OF THE COMPANY OR ANY OF ITS
AFFILIATES OR IN ANY WAY INJURING THE INTERESTS OF THE COMPANY OR ANY OF ITS
AFFILIATES AND THE COMPANY AND ITS AFFILIATES SHALL NOT MAKE OR AUTHORIZE ANY
PERSON TO MAKE ANY STATEMENT THAT WOULD IN ANY WAY INJURE THE PERSONAL OR
BUSINESS REPUTATION OR INTERESTS OF EMPLOYEE; PROVIDED, HOWEVER, THAT, SUBJECT
TO SECTION 4.2, NOTHING HEREIN SHALL PRECLUDE THE COMPANY AND ITS AFFILIATES OR
EMPLOYEE FROM GIVING TRUTHFUL TESTIMONY UNDER OATH IN RESPONSE TO A SUBPOENA OR
OTHER LAWFUL PROCESS OR TRUTHFUL ANSWERS IN RESPONSE TO QUESTIONS FROM A
GOVERNMENT INVESTIGATION; PROVIDED FURTHER, HOWEVER, THAT NOTHING HEREIN SHALL
PROHIBIT THE COMPANY AND ITS AFFILIATES FROM DISCLOSING THE FACT OF ANY
TERMINATION OF EMPLOYEE'S EMPLOYMENT OR THE CIRCUMSTANCES FOR SUCH A
TERMINATION.
FOR PURPOSES OF THIS SECTION 4.1(B), THE TERM "COMPETITOR" MEANS
ANY ENTERPRISE OR BUSINESS THAT IS ENGAGED IN, OR HAS PLANS TO ENGAGE IN, AT ANY
TIME DURING THE RESTRICTED PERIOD, ANY ACTIVITY THAT COMPETES WITH THE
BUSINESSES CONDUCTED DURING OR AT THE TERMINATION OF EMPLOYEE'S EMPLOYMENT, OR
THEN PROPOSED TO BE CONDUCTED, BY THE COMPANY AND ITS AFFILIATES IN A MANNER
THAT IS OR WOULD BE MATERIAL IN RELATION TO THE BUSINESSES OF THE COMPANY OR THE
PROSPECTS FOR THE BUSINESSES OF THE COMPANY (IN EACH CASE, WITHIN 100 MILES OF
ANY GEOGRAPHICAL AREA WHERE THE COMPANY OR ITS AFFILIATES MANUFACTURES,
PRODUCES, SELLS, LEASES, RENTS, LICENSES OR OTHERWISE PROVIDES ITS PRODUCTS OR
SERVICES).
DURING THE RESTRICTED PERIOD, EMPLOYEE, WITHOUT PRIOR EXPRESS
WRITTEN APPROVAL BY THE BOARD, SHALL