insurance for the Covered Executive if the Covered Executive had remained employed by the Employer for an additional 12 months. Such severance amount shall be paid in a lump sum within 30 days of the date of termination of employment; provided, however, that if the 30-day period begins in one calendar year and ends in a second calendar year, such amount shall be paid in the second calendar year by the last day of such 30-day period.
4. Noncompetition and Nonsolicitation. In the event severance benefit is payable to a Covered Executive under this Plan, the Covered Executive shall agree in the Separation Agreement and Release that he or she shall not, without the prior written consent of the Employer, directly or indirectly:
(a) engage, participate or assist in, either individually or as an owner, partner, employee, consultant, director, officer, trustee, or agent of any business that engages or attempts to engage in, directly or indirectly, the acquisition, development, construction, operation, management, or leasing of any commercial real estate property in any of the Employer’s Markets (as hereinafter defined) at the time of the Covered Executive’s termination of employment;
(b) intentionally interfere with, disrupt or attempt to disrupt the relationship, contractual or otherwise, between the Employer and any tenant, supplier, contractor, lender, employee, or governmental agency or authority; or
(c) call upon, compete for, solicit, divert, or take away, or attempt to divert or take away any of the tenants or employees of the Employer, either for himself or herself or for any other business, operation, corporation, partnership, association, agency, or other person or entity.
“Market” as used herein means an area covering a 25 mile radius around (x) any property or land owned by the Employer, under development by the Employer or with respect to which the Employer has an agreement or option to acquire a property, development or land or (y) any property or development for which the Employer provides third party development or management services; provided that for any such property, development or land located in New York City, no such radial area shall extend beyond New York City.
This Section 4 shall not be interpreted to prevent the Covered Executive from owning up to two percent of the outstanding stock of a public company engaged in business described above or engaging in Minority Interest Passive Investments which shall mean acquiring, holding, and exercising the voting rights associated with an investment made through (i) the purchase of securities (including partnership interests) that represent a non-controlling, minority interest in an entity or (ii) the lending of money, in either case with the purpose or intent of obtaining a return on such investment but without management by the Covered Executive of the property or business to which such investment directly or indirectly relates and without any business or strategic consultation by the Covered Executive with such entity.
5. Section 409A. The severance benefits payable under this Plan are intended to be “short term deferrals” exempt from the application of Section 409A of the Internal Revenue Code of 1986, as amended.