one dollar ($1.00) less than three times the Executives base amount, the Executive shall immediately repay such excess to the Employer upon notification that an overpayment has been made. Nothing in this Section 3.5 shall require the Employer to be responsible for, or have any liability or obligation with respect to, any Executives excise tax liabilities under section 4999 of the Code.
3.6 Coordination with Certain Other Agreements. The benefits under and participation in this Plan are intended to supersede and replace the severance and separation benefits to which an Executive may be entitled under any other plan, policy, agreement or arrangement. By executing a Participation Agreement with the Company to participate in this Plan, an Executive shall waive any right to severance or separation benefits under any other plan, policy, agreement or arrangement of any Employer.
3.7 No Mitigation. An Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Article III or Section 4.2 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Article III or Section 4.2 be reduced by any compensation or benefit earned by the Executive as the result of employment by another employer.
IV. RESTRICTIVE COVENANTS
4.1 Non-Competition and Non-Solicitation Obligations. In consideration of the payments and benefits that may be paid or provided to the Executive hereunder and to protect the trade secrets and confidential information of the Company that have been and will in the future be disclosed or entrusted to the Executive, the business goodwill of the Company or its affiliates, and the business opportunities that have been and will in the future be disclosed or entrusted to the Executive by the Company or its affiliates, the Company and the Executive agree to the provisions of this Article IV. The Executive agrees that during the Restricted Period, the Executive will not:
(a) directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for the Executives own benefit or for the benefit of any other person or entity either (i) hire, contract or solicit, or attempt any of the foregoing with respect to hiring any employee of the Company or its affiliates, or (i) induce or otherwise counsel, advise, or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or
(b) within any geographic area or market where the Company or any of its affiliates are conducting any business or have, during the twelve months preceding the termination of the Executives employment with Company, conducted such business or proposed to conduct business, as applicable:
(i) directly or indirectly participate in the ownership, management, operation or control of, or be connected as an officer, employee, partner, director, contractor or otherwise with, or have any financial interest in or aid or assist anyone else in the conduct of, any business similar to that conducted by the Company or its affiliates or provide or sell a service or product that is the same, substantially similar to or otherwise competitive with the products and services provided or sold by the Company or its affiliates (each, a Competitive Operation); provided, however, that this provision shall not preclude the Executive from owning less than 2% of the equity securities of any publicly held Competitive Operation so long as the Executive does not serve as an employee, officer, director or consultant to such business;
(ii) directly or indirectly, either as principal, agent, independent contractor, consultant, director, officer, employee, employer, advisor, stockholder, partner or in any other individual or representative capacity whatsoever, either for the Executives own benefit or for the benefit of any other person or entity call upon, solicit, divert or take away, any customer or vendor of the Company or its affiliates with whom the Executive dealt, directly or indirectly, during the Executives engagement with Company or its affiliates, in connection with a Competitive Operation; or
(iii) call upon any prospective acquisition candidate on the Executives own behalf or on behalf of any Competitive Operation, which candidate is a Competitive Operation or which candidate was, to the Executives knowledge after due inquiry, either called upon by the Company or for which the Company or any of its affiliates made an acquisition analysis, for the purpose of acquiring such entity.