consent of the Company, directly or indirectly, either for Executive or for or through any other individual, firm, partnership, corporation, or other entity own, manage, control, participate in, consult with, or render services for any business or enterprise that competes with any business or division of the Company or any Company Subsidiary (each, a “Related Entity”), in any geographic location within the United States in which the Company or a Related Entity operates. For purposes of this Agreement, the term “participate” includes any direct or indirect interest in any enterprise, whether as an officer, director, employee, partner, sole proprietor, agent, representative, independent contractor, consultant, franchisor, franchisee, advisor, creditor, owner or otherwise; provided that the term “participate” shall not include ownership of less than five percent of the common stock of a publicly held corporation whose common stock is traded on a national securities exchange or in the over-the-counter market. As of the Closing, Parent and the Parent Subsidiaries (as defined in the Merger Agreement) will each be a Related Entity for purposes of this Agreement.
(b) Covenant Not to Solicit. Notwithstanding any other agreement between the Company or any Company Subsidiary, on the one hand, and Executive, on the other hand, to the contrary, in consideration of the compensation to be paid to Executive under this Agreement, Executive agrees that the non-solicitation restrictions pursuant to the Company’s 2014 Amended and Restated Long-Term Incentive Plan, as amended from time to time, including any award agreements granted thereunder (the “2014 LTIP”), shall be extended to apply for the duration of the Restricted Period. As of the Closing, references to the “Company” for purposes of the non-solicitation restrictions under the 2014 LTIP will be deemed to include Parent and the Parent Subsidiaries.
Section 2. Compensation.
(a) Payment. In addition to any other payments or benefits that Executive may be entitled to as a result of a termination of his employment and in consideration for the covenants set forth in Section 1 hereof, upon and subject to the occurrence of the Closing, the Company agrees to pay Executive an amount equal to $18,000,000 (the “Restrictive Covenant Payment”), subject to the terms and conditions set forth herein. The Restrictive Covenant Payment will be paid in a lump sum within 30 days following the Effective Date. For the avoidance of doubt, Section 2(f) (“Certain Tax Provisions”) of the Change in Control Agreement (as defined below) will apply with respect to the Restrictive Covenant Payment.
(b) Clawback. In the event of a breach by Executive of any of the covenants and agreements contained in Section 1 prior to the end of the Restriction Period, the Company may, in its sole discretion, require that Executive pay to the Company, within 30 days following the date the Company first becomes aware of such breach, an amount equal to the after-tax portion of the Restrictive Covenant Payment received by Executive.
Section 3. Enforcement. In the event of a breach by Executive of any of the covenants and agreements contained in Section 1, to which the Company has not consented in writing, the Company shall be entitled to one or more of the following remedies, in addition to any other remedy provided for in this Agreement or as a matter of law, to the extent that such remedies are not by their nature exclusive:
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