Common use of Restrictions on Competition Clause in Contracts

Restrictions on Competition. Executive acknowledges that as --------------------------- Senior Vice President of New Product Development he will be a "high impact" person in the Company's business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development of strategy and products, and is responsible for new product development nationally and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, has significant and regular contact with customers and suppliers of the Company, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder plus a period of two years (or such longer period, not in excess of three years, to the extent termination payments are paid to Executive pursuant to (sections) 2.04, 2.05 or 2.06 in an amount representing a period in excess of two years) following the termination of Executive's employment, including without limitation termination by the Company for cause or without cause (excepting a termination pursuant to Section 2.01) Executive shall not, in the United States of America engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are the same as or similar to the Products and services sold by the Company at any time and from time to time during the last two years prior to the termination of Executive's employment hereunder; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's obligations hereunder. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (section) 1.02, then the provisions of this (section) 4.05 and (section's) 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter period.

Restrictions on Competition. Executive acknowledges that as --------------------------- Senior Vice President of President, New Product Development Development, he will be a "high impact" person in the Company's business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development of strategy improvements and innovations in existing products and new products, and is responsible works directly with the Senior Vice President for new product development nationally New Product Development, and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, thereby has regular and significant and regular contact with customers and suppliers of the CompanyCompany nationally and internationally, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products products, and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder plus a period of two years (or such longer period, not in excess of three years, to the extent termination payments are paid to Executive pursuant to (sections) ss. 2.04, 2.05 or 2.06 in an amount representing for a period in excess of two years) following the termination of Executive's employment, including without limitation termination by the Company for cause or without cause (excepting a termination pursuant to Section 2.012.01 and also excepting an Executive termination under 2.04(b) for which the non compete is coextensive with the length of payments herein for which this non-competition period is one (1) year), Executive shall not, in the United States of America engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are included in the same as following categories: ventilation, sleep therapy or similar to the Products and services sold diagnostics, oxygen delivery, oximetry, patient interface, any new products commercialized by the Company at during Executive's employment, or any time and from time to time during product which on the last two years prior to the date of termination of Executive's employment hereunderhereunder is actively in the concept or development stage with significant committed ongoing financial resources; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision provision; or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's obligations hereunder, it recognizes that those obligations are material to the Company and that the Company believes that violation of those obligations will cause the Company irreparable harm. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (section) ss. 1.02, then the provisions of this (section) ss. 4.05 and (section's) ss.'s 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter period.

Restrictions on Competition. Executive acknowledges that as Vice --------------------------- Senior Vice President of President, New Product Development Development, he will be a "high impact" person in the Company's business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development of strategy improvements and innovations in existing products and new products, and is responsible works directly with the Senior Vice President for new product development nationally New Product Development, and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, thereby has regular and significant and regular contact with customers and suppliers of the CompanyCompany nationally and internationally, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products products, and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder plus a period of two years (or such longer period, not in excess of three years, to the extent termination payments are paid to Executive pursuant to (sectionsS) 2.04, 2.05 or 2.06 in an amount representing for a period in excess of two years) following the termination of Executive's employment, including without limitation termination by the Company for cause or without cause (excepting a termination pursuant to Section 2.012.01 and also excepting an Executive termination under 2.04(b) for which the non compete is coextensive with the length of payments herein for which this non-competition period is one (1) year), Executive shall not, in the United States of America engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are the same as or similar to the Products and services sold by the Company at any time and from time to time during the last two years prior to the termination of Executive's employment hereunder; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's obligations hereunder. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (sectionS) 1.02, then the provisions of this (sectionS) 4.05 and (section's) S)'s 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter period.

Restrictions on Competition. Executive acknowledges that as Vice --------------------------- Senior Vice President of President, New Product Development Development, he will be a "high impact" person in the Company's business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development of strategy improvements and innovations in existing products and new products, and is responsible works directly with the Senior Vice President for new product development nationally New Product Development, and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, thereby has regular and significant and regular contact with customers and suppliers of the CompanyCompany nationally and internationally, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products products, and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder plus a period of two years (or such longer period, not in excess of three years, to the extent termination payments are paid to Executive pursuant to (sections) 2.04s)2.04, 2.05 or 2.06 in an amount representing for a period in excess of two years) following the termination of Executive's employment, including without limitation termination by the Company for cause or without cause (excepting a termination pursuant to Section 2.012.01 and also excepting an Executive termination under 2.04(b) for which the non compete is coextensive with the length of payments herein for which this non-competition period is one (1) year), Executive shall not, in the United States of America engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are included in the same as following categories: ventilation, sleep therapy or similar to the Products and services sold diagnostics, oxygen delivery, oximetry, patient interface, any new products commercialized by the Company at during Executive's employment, or any time and from time to time during product which on the last two years prior to the date of termination of Executive's employment hereunderhereunder is actively in the concept or development stage with significant committed ongoing financial resources; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision provision; or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's obligations hereunder, it recognizes that those obligations are material to the Company and that the Company believes that violation of those obligations will cause the Company irreparable harm. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (section) 1.02s)1.02, then the provisions of this (section) 4.05 s)4.05 and (section's) s)'s 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter period.

Restrictions on Competition. Executive acknowledges that as Vice --------------------------- Senior Vice President of New Product Development President, International, he will be a "high impact" person in the Company's business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development and marketing of strategy existing products and new products, and is responsible for new product development nationally works directly with the President and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, CEO. He also has regular and significant and regular contact with customers and suppliers of the CompanyCompany nationally and internationally, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products products, and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder plus a period of two years (or such longer period, not in excess of three years, to the extent termination payments are paid to Executive pursuant to (sectionsS) 2.04, 2.05 or 2.06 in an amount representing for a period in excess of two years) following the termination of Executive's employment, including without limitation termination by the Company for cause or without cause (excepting a termination pursuant to Section 2.012.01 and also excepting an Executive termination under 2.04(b) for which the non compete is coextensive with the length of payments herein for which this non-competition period is one (1) year), Executive shall not, in the United States of America or in any other country in which Executive has represented the interests of the Company engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business. For purposes of this Agreement, the term "Competing Business" shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are the same as or similar to the Products and services sold by the Company at any time and from time to time during the last two years prior to the termination of Executive's employment hereunder; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's obligations hereunder. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (sectionS) 1.02, then the provisions of this (sectionS) 4.05 and (section's) S)'s 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter period.

Restrictions on Competition. Executive acknowledges that as --------------------------- Senior Executive Vice President of New Product Development and Chief Operating Officer he will be a "“high impact" ” person in the Company's ’s business who is in possession of selective and specialized skills, learning abilities, supplier and customer contacts, and supplier and customer information as a result of his relationship with the Company, and agrees that the Company has a substantial business interest in the covenant described below. Executive further acknowledges that he is involved at the highest level of the Company in the development of strategy and products, and is responsible for new product development nationally and internationally, serves on the Leadership Council of the Company with responsibility for strategic planning, has significant and regular contact with customers and suppliers of the Company, and that he has access to and responsibility for trade secret and confidential information pertaining to the business of the Company, its products and plans. In recognition of that status, Executive covenants and agrees that during the period of Executive's employment hereunder Term plus a period of two years (or such longer period, not in excess of three years, to the extent termination Separation of Service payments are paid to Executive pursuant to (sections) Sections 2.04, 2.05 or 2.06 in an amount representing a period in excess of two years) following the termination Executive’s Separation of Executive's employmentService, including without limitation termination Separation of Service by the Company for cause or without cause (excepting a termination Separation of Service pursuant to Section 2.01) ), Executive shall not, in the United States of America engage, directly or indirectly, whether as principal or as agent, officer, director, employee, consultant, shareholder (other than as a shareholder owning up to 5% of the outstanding stock of any company whose stock is publicly traded and listed on a national securities exchange or included in NASDAQ), alone or in association with any other person, corporation or other entity, in any Competing Business; provided, however, that with respect to a Separation of Service occurring during the Change of Control Protection Period, the foregoing restriction shall apply for a period equal to one half of the applicable period otherwise prescribed by this sentence. For purposes of this Agreement, the term "“Competing Business" ” shall mean and include any person, corporation or other entity which develops, manufactures, sells, markets or attempts to develop, manufacture, sell or market any product or services which are the same as or similar to the Products and services sold by the Company at any time and from time to time during the last two years prior to the termination Executive’s Separation of Executive's employment Service hereunder; provided, however, that for purposes of determining what constitutes a Competing Business there shall not be included (x) any product or service of any entity which product or service Executive determines is not material to the business or prospects of the Company and which product or service the Company's ’s Board, having been requested to do so by Executive, also so determines; the parties agree that any product which has been marketed in the United States for five years and has not achieved a five percent revenue level for the Company is not material for purposes of this provision or (y) any product or service of any entity so long as the Executive and such entity can demonstrate to the reasonable satisfaction of the Company that Executive is and will continue to be effectively isolated from, and not participate in the development, manufacture, sale or marketing of, such product or service, but only so long as Executive is effectively so isolated and does not so participate. To trigger this provision, the Executive and entity must perform the following: (i) the Executive must provide the Company with a letter pledging that he will abide by this Agreement; provided, however, that this requirement shall not apply in the event of a Separation of Service during the Change of Control Protection Period, and (ii) the prospective/new employer must provide a letter acknowledging that it is aware of the Executive's ’s obligations hereunder; provided, however, that this requirement shall not apply in the event of a Separation of Service during the Change of Control Protection Period. The letter also must contain a pledge by the new/prospective employer that it will abide by those obligations. In the event the employment of Executive terminates at the conclusion of the Term expires before Executive obtains the age of 65 and because the Company has elected not to further extend the Term pursuant to (section) Section 1.02, then the provisions of this (section) Section 4.05 and (section's) Sections 4.06 and 4.07 shall not be applicable after the conclusion of the Term unless the Company advises Executive at least six months prior to conclusion of the Term that it will continue to pay the Base Salary in effect at conclusion of the Term for such two-year period or such shorter portion thereof as the Company may specify (which specification shall foreshorten shorten such two-year period accordingly) and the Company pays such amounts during such two-year or shorter periodperiod in equal bi-weekly installments; provided, however, that payment of any such amount will not begin until six (6) months after the expiration of the Term and any payment for this six-month waiting period will be paid in a lump sum as part of the first payment immediately after the six-month period has passed and thereafter any payments due will be paid bi-weekly in accordance with the Company’s then current payroll practice; and provided further, however, that, in the event that Executive receives payments contemplated by Section 2.05 as a result of the Company’s failure to extend the Term in a Change in Control Protection Period as set forth in Section 2.04(a)(x), then Sections 4.05, 4.06 and 4.07 shall apply for the following time period(s) without any further payment: Section 4.05 (eighteen months), Section 4.06 (one year) and Section 4.07 (one year). For the avoidance of doubt, (1) if the Company elects to continue to pay Executive’s Base Salary as contemplated by the immediately preceding sentence so that Sections 4.05, 4.06 and 4.07 will apply following the Company’s failure to extend the Term, such payments shall be in addition to any other payments contemplated by this Agreement, and (2) the Company may only make such election if Section 4.05, 4.06 and 4.07 would not otherwise not apply.