AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT

Exhibit 10.8

 

AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT

 

THIS AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT (this “Agreement”) is made as of February 9, 2005, by and among Syniverse Holdings, LLC, a Delaware limited liability company (“Holdings LLC”), Syniverse Holdings, Inc., a Delaware corporation (the “Company”), Syniverse Technologies, Inc., a Delaware corporation (“Employer”), and Wayne G. Nelson (“Executive”).

 

This Agreement amends and restates that certain Senior Management Agreement (the “Prior Agreement”), dated as of February 14, 2002, by and among Holdings LLC, Employer and Executive. The Company, Holdings LLC, Employer and Executive desire to amend and restate the Prior Agreement in order to facilitate a dissolution of Holdings LLC and an initial public offering of the Company’s common stock.

 

Holdings LLC and Executive entered into the Prior Agreement pursuant to which Executive purchased, and Holdings LLC sold, 405,405.41 of Holdings LLC’s Common Units (the “Common Units”). The Common Units acquired by Executive pursuant to Section 1(a) of the Prior Agreement are referred to herein as “Carried Units”. Certain definitions are set forth in Section 9 of this Agreement.

 

The execution and delivery of the Prior Agreement by Holdings LLC, Employer and Executive was a condition to the purchase of Holdings LLC’s Class B Preferred Units and Common Units by GTCR Fund VII, L.P., a Delaware limited partnership (“GTCR Fund VII”), GTCR Fund VII/A, L.P., a Delaware limited partnership (“GTCR Fund VII/A”), GTCR Co-Invest, L.P., a Delaware limited partnership (“GTCR Co-Invest”, together with GTCR Fund VII, GTCR Fund VII/A and any other investment fund managed by GTCR Golder Rauner, L.L.C., each an “Investor” and collectively, the “Investors”) pursuant to a unit purchase agreement between Holdings LLC and the Investors dated as of February 14, 2002 (the “Purchase Agreement”). Certain provisions of this Agreement are intended for the benefit of, and will be enforceable by, the Investors.

 

Employer desires to employ Executive on the terms and conditions set forth herein, and Executive is willing to accept such employment on such terms and conditions.

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, (i) the parties to the Prior Agreement hereby amend and restate the Prior Agreement, effective as of immediately prior to the earlier of (x) the distribution by Holdings LLC to its members of the outstanding capital stock of the Company and (y) the consummation of the initial Public Offering of the Company’s common stock (such shares, the “Common Shares” and such date, the “Effective Date”) and (ii) the parties to this Agreement hereby agree as follows:

 

PROVISIONS RELATING TO CARRIED SHARES

 

1. Acquisition of Carried Shares.

 

(a) On the Effective Date, Executive will acquire 178,180 Common Shares and 1.902 shares of Class A Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Shares”), from Holdings LLC as a distribution with respect to the 405,405.41 Carried Units acquired by Executive pursuant to the Prior Agreement. The Common Shares and Preferred Shares acquired by Executive pursuant to this Section 1(a) are sometimes referred to herein as “Carried Shares.” On or promptly following the Effective Date, the Company will deliver to Executive (i) certificates representing the Preferred Shares and any such Common Shares that are vested as of the Effective Date pursuant to Section 2 hereof, and (ii) copies of the certificates representing any such Common Shares that are not then vested pursuant to Section 2 hereof. In exchange, Executive hereby authorizes Holdings LLC and the Company to cancel on the Effective Date the certificate or certificates representing the Carried Units.

 

(b) Within 30 days after the acquisition of the Common Shares hereunder, Executive will make an effective election with the Internal Revenue Service under Section 83(b) of the Internal Revenue Code and the regulations promulgated thereunder in the form of Exhibit A attached hereto.

 

(c) Until the occurrence of a Sale of the Company, any certificates evidencing Carried Shares that are not vested as of the Effective Date shall be held by the Company for the benefit of Executive and the other holder(s) of Carried Shares. Upon the occurrence of a Sale of the Company, the Company will return any such certificates for the Carried Shares to the record holders thereof. At the written request of the Executive, the Company shall provide, not more than once per calendar quarter, certificates evidencing Carried Shares that have then vested to the record holder thereof.

 

(d) In connection with the acquisition of the Common Shares and Preferred Shares hereunder, Executive represents and warrants to the Company that:

 

(i) Executive is an executive officer of the Employer or a Subsidiary, is sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Common Shares;

 

(ii) This Agreement constitutes the legal, valid and binding obligation of Executive, enforceable in accordance with its terms, and the execution, delivery and performance of this Agreement by Executive does not and will not conflict with, violate or cause a breach of any agreement, contract or instrument to which Executive is a party or any judgment, order or decree to which Executive is subject; and

 

(iii) Executive is a resident of the State of Florida.

 

(e) As an inducement to the Company to issue the Carried Shares to Executive, and as a condition thereto, Executive acknowledges and agrees that neither the issuance of the Carried Shares to Executive nor any provision contained herein shall entitle

 

2

Executive to remain in the employment of the Company, Employer or their respective Subsidiaries or affect the right of the Company, Employer or their respective Subsidiaries to terminate Executive’s employment at any time for any reason.

 

(f) Concurrently with the execution of this Agreement, Executive shall execute in blank ten stock transfer powers in the form of Exhibit B attached hereto (the “Stock Powers”) with respect to the Common Shares and shall deliver such Stock Powers to the Company. The Stock Powers shall authorize the Company to assign, transfer and deliver the Common Shares to the appropriate acquiror thereof pursuant to Section 3 below and under no other circumstances.

 

(g) Executive is neither a party to, nor bound by, any other employment agreement, consulting agreement, noncompete agreement, nonsolicitation agreement or confidentiality agreement.

 

2. Vesting of Carried Shares.

 

(a) The Preferred Shares and 106,908 Common Shares issued to Executive in respect of the Carried Units that have vested pursuant to the Prior Agreement will be vested when issued and the remaining 71,272 Common Shares shall be subject to vesting in the manner specified in this Section 2. Except as otherwise provided in Section 2(b) below, 12.5% of the remaining Common Shares will become vested on each Quarter Date such that on February 14, 2007, the Common Shares will be 100% vested, in each case, however, if and only if as of each such Quarter Date Executive has been continuously employed by the Company, Employer or any of their respective Subsidiaries from the date of this Agreement through and including such Quarter Date.

 

(b) Upon the occurrence of a Sale of the Company, all Carried Shares that have not yet become vested shall become vested at the time of such event, if as of the date of such event Executive is still employed by the Company, Employer or any of their respective Subsidiaries. Carried Shares that have become vested are referred to herein as “Vested Shares.” All Carried Shares that have not vested are referred to herein as “Unvested Shares.”

 

3. Repurchase Option.

 

(a) In the event Executive ceases to be employed by the Company, Employer or their respective Subsidiaries for any reason (the “Separation”), the Unvested Shares (whether held by Executive or one or more of Executive’s transferees, other than the Company) will be subject to repurchase, in each case by the Company and the Investors pursuant to the terms and conditions set forth in this Section 3 (the “Repurchase Option”). The Company may assign its repurchase rights set forth in this Section 3 to any Person.

 

(b) In the event of a Separation the purchase price for each Unvested Share will be the lesser of (i) Executive’s Original Cost for the Carried Unit(s) in respect of which such Share was issued to Executive and (ii) the Fair Market Value of such Share as of the date of the Repurchase Notice (defined below).

 

3

(c) The Board may elect to purchase all or any portion of the Unvested Shares by delivering written notice (the “Repurchase Notice”) to the holder or holders of the Unvested Shares within ninety (90) days after the Separation. The Repurchase Notice will set forth the number of Unvested Shares to be acquired from each holder, the aggregate consideration to be paid for such Unvested Shares and the time and place for the closing of the transaction. The number of Unvested Shares to be repurchased by the Company shall first be satisfied to the extent possible from the Unvested Shares held by Executive at the time of delivery of the Repurchase Notice. If the number of Unvested Shares then held by Executive is less than the total number of Unvested Shares which the Company has elected to purchase, the Company shall purchase the remaining Unvested Shares elected to be purchased from the other holder(s) of Unvested Shares under this Agreement, pro rata according to the number of Unvested Shares held by such other holder(s) at the time of delivery of such Repurchase Notice (determined as nearly as practicable to the nearest share). The number of Unvested Shares to be repurchased hereunder will be allocated among Executive and the other holders of Unvested Shares (if any) pro rata according to the number of Unvested Shares to be purchased from such Person.

 

(d) Intentionally omitted.

 

(e) The closing of the purchase of the Unvested Shares pursuant to the Repurchase Option shall take place on the date designated by the Company in the Repurchase Notice, which date shall not be more than one month nor less than five days after the delivery of such notice. The Company will pay for the Unvested Shares to be purchased by it pursuant to the Repurchase Option by first offsetting amounts outstanding under any bona fide debts owed by Executive to the Company and will pay the remainder of the purchase price by a check or wire transfer of funds. The Company will be entitled to receive customary representations and warranties from the sellers regarding such sale and to require that all sellers’ signatures be guaranteed.

 

(f) Notwithstanding anything to the contrary contained in this Agreement, all repurchases of Unvested Shares by the Company pursuant to the Repurchase Option shall be subject to applicable restrictions contained in the Delaware General Corporation Law or such other governing corporate law, and in the Company’s and its Subsidiaries’ debt and equity financing agreements. If any such restrictions prohibit (i) the repurchase of Unvested Shares hereunder which the Company is otherwise entitled to make or (ii) dividends or other transfers of funds from one or more Subsidiaries to the Company to enable such repurchases, then the Company may make such repurchases (x) as soon as it is permitted to make repurchases or receive funds from Subsidiaries under such restrictions or (y) by means of a subordinated note payable in up to three equal annual installments beginning on the first anniversary of the closing of such purchase and bearing interest (payable quarterly) at a rate per annum equal to the prime rate announced from time to time by JPMorgan Chase & Co., a New York banking corporation, as the Board may elect in its discretion.

 

(g) Notwithstanding anything to the contrary contained in this Agreement, if the Fair Market Value of the Unvested Shares is finally determined to be an amount at least 10% greater than the per Share repurchase price for such Unvested Shares in the Repurchase Notice, the Company shall have the right to revoke its exercise of the Repurchase Option for all or any portion of the Unvested Shares elected to be repurchased by it by delivering notice of such

 

4

revocation in writing to the holders of Unvested Shares during the thirty-day period beginning on the date that the Company is given written notice that the Fair Market Value of Unvested Shares was finally determined to be an amount at least 10% greater than the per share repurchase price for Unvested Shares set forth in the Repurchase Notice.

 

(h) Intentionally omitted.

 

4. Restrictions on Transfer of Carried Shares.

 

(a) Transfer of Carried Shares. The holders of Carried Shares shall not Transfer any interest in any Carried Shares, except pursuant to (i) the provisions of Section 3 hereof, (ii) a sale of the Company approved by the Board and the holders of a majority of the Common Shares then outstanding (an “Approved Sale”) or (iii) the provisions of Section 4(b) below.

 

(b) Certain Permitted Transfers. The restrictions in this Section 4 will not apply with respect to any Transfer of Carried Shares made (i) pursuant to applicable laws of descent and distribution or to such Person’s legal guardian in the case of any mental incapacity or among such Person’s Family Group, (ii) in connection with the Company’s initial Public Offering of the Common Shares upon the underwriters’ exercise of their option to purchase additional Common Shares to the extent set forth in the Company’s Registration Statement on Form S-1 (Registration No. 333-120444) filed with the Securities and Exchange Commission on November 12, 2004, as amended, or (iii) at such time as the Investors sell Common Shares to any unaffiliated third party, but in the case of this clause (iii) only an amount of shares (the “Transfer Amount”) equal to the lesser of (A) the number of Vested Shares owned by Executive and (B) the number of Common Shares owned by Executive multiplied by a fraction (the “Transfer Fraction”), the numerator of which is the number of Common Shares sold by the Investors in such sale and the denominator of which is the total number of Common Shares held by the Investors prior to the sale; provided that, if at the time of such sale of Common Shares by the Investors, Executive chooses not to Transfer the Transfer Amount, Executive shall retain the right to Transfer an amount of Common Shares at a future date equal to the lesser of (x) the number of Vested Shares owned by Executive at such future date and (y) the number of Common Shares owned by Executive at such future date multiplied by the Transfer Fraction; provided further that the restrictions contained in this Section 4 will continue to be applicable to the Carried Shares after any Transfer of the type referred to in clause (i) above and the transferees of such Carried Shares must agree in writing to be bound by the provisions of this Agreement. Any transferee of Carried Shares pursuant to a Transfer in accordance with the provisions of this Section 4(b)(i) is herein referred to as a “Permitted Transferee.” Upon the Transfer of Carried Shares pursuant to this Section 4(b), the transferring holder of Carried Shares will deliver a written notice (a “Transfer Notice”) to the Company. In the case of a Transfer pursuant to clause (i) hereof, the Transfer Notice will disclose in reasonable detail the identity of the Permitted Transferee(s).

 

(c) Termination of Restrictions. The restrictions set forth in this Section 4 will continue with respect to each Carried Share until the earlier of (i) the date on which such Carried Shares have been transferred in a Public Sale permitted by this Section 4, or (ii) the consummation of an Approved Sale.

 

5

5. Additional Restrictions on Transfer of Carried Shares.

 

(a) Legend. The certificates representing the Carried Shares will bear a legend in substantially the following form:

 

“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED AS OF FEBRUARY 9, 2005, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET FORTH IN AN AMENDED AND RESTATED SENIOR MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND AN EXECUTIVE OF THE COMPANY DATED AS OF FEBRUARY 9, 2005. A COPY OF SUCH AGREEMENT MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY’S PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE.”

 

(b) Opinion of Counsel. No holder of Carried Shares may Transfer any Carried Shares (except pursuant to an effective registration statement under the Securities Act) without first delivering to the Company a written notice describing in reasonable detail the proposed Transfer, together with an opinion of counsel (reasonably acceptable in form and substance to the Company) that neither registration nor qualification under the Securities Act and applicable state securities laws is required in connection with such transfer. In addition, if the holder of the Carried Shares delivers to the Company an opinion of counsel that no subsequent Transfer of such Carried Shares shall require registration under the Securities Act, the Company shall promptly upon such contemplated Transfer deliver new certificates for such Carried Shares which do not bear the Securities Act portion of the legend set forth in Section 5(a). If the Company is not required to deliver new certificates for such Carried Shares not bearing such legend, the holder thereof shall not Transfer the same until the prospective transferee has confirmed to the Company in writing its agreement to be bound by the conditions contained in this Section 5.

 

PROVISIONS RELATING TO EMPLOYMENT

 

6. Employment. Employer agrees to employ Executive and Executive accepts such employment for the period beginning as of February 14, 2002 and ending upon his separation pursuant to Section 6(c) hereof (the “Employment Period”).

 

(a) Position and Duties.

 

(i) During the Employment Period, Executive shall serve as the Vice President – Controller of Employer and its Subsidiaries and shall have the normal duties, responsibilities and authority implied by such position, subject to the power of the Chief Executive Officer and the Board to expand or limit such duties, responsibilities and authority and to override actions of Executive.

 

6

(ii) Executive shall report to the Chief Financial Officer and/or the President of Employer and Executive shall devote his best efforts and his full business time and attention to the business and affairs of the Company, Employer and their Subsidiaries.

 

(b) Salary, Bonus and Benefits. During the Employment Period, Employer will pay Executive a base salary (the “Annual Base Salary”) of $153,000 per annum, subject to any increases as determined by the Board based upon the Company’s achievements of budgetary and other objectives set by the Board. For any fiscal year, Executive shall be eligible for an annual bonus of up to 50% of the Executive’s then applicable Annual Base Salary based upon the achievement by the Company, Employer and their Subsidiaries of budgetary and other objectives set by the Board; provided that with respect to the first year for which Executive is eligible for a bonus, such bonus shall be paid on a pro rata basis based upon that portion of the year that remained after the date of this Agreement. In addition, during the Employment Period, Executive will be entitled to such other benefits approved by the Board and made available to the senior management of the Company, Employer and their Subsidiaries.

 

(c) Separation. The Employment Period will continue until Executive’s resignation, disability (as determined by the Board in its good faith judgment) or death or until the Employer decides to terminate Executive’s employment with or without Cause. If Executive’s employment is terminated by Employer without Cause, during the six-month period commencing on the date of termination (the “Initial Severance Period”), Employer shall pay to Executive each month during the Initial Severance Period an aggregate amount equal to 1/12^th of his Annual Base Salary in effect as of the end of the Employment Period, payable in equal installments on the Employer’s regular salary payment dates. Employer may (in its sole discretion) elect to extend the Initial Severance Period for up to three additional six-month periods (each an “Additional Severance Period”) by providing Executive written notice of such extension no less than 60 days prior to the last day of the Initial Severance Period or the then effective Additional Severance Period and paying Executive during each month of any such Additional Severance Period an additional amount equal to 1/12^th of his Annual Base Salary, payable in equal installments on the Employer’s regular salary payment dates. (The Initial Severance Period and all applicable Additional Severance Periods are collectively referred to herein as the “Severance Period”). The amounts payable pursuant to this Section 6(c) shall be reduced by the amount of any compensation Executive earns or receives with respect to any other employment during the period in which he is receiving severance. Upon request from time to time, Executive shall furnish Employer with a true and complete certificate specifying any such compensation earned or received by him while receiving any severance payments from Employer.

 

7. Confidential Information.

 

(a) Obligation to Maintain Confidentiality. Executive acknowledges that the information, observations and data obtained by him during the course of his performance under this Agreement concerning the business and affairs of the Company, Employer and their respective Subsidiaries and Affiliates are the property of the Company, Employer or such

 

7

Subsidiaries and Affiliates, including information concerning acquisition opportunities in or reasonably related to the Company’s and Employer’s and their respective Subsidiaries’ business or industry of which Executive becomes aware during the Employment Period. Therefore, Executive agrees that he will not disclose to any unauthorized Person or use for his own account any of such information, observations or data without the Board’s prior written consent, unless and to the extent that the aforementioned matters become generally known to and available for use by the public other than as a result of Executive’s acts or omissions to act. Executive agrees to deliver to the Company at a Separation, or at any other time the Company may request in writing, all memoranda, notes, plans, records, reports and other documents (and copies thereof) relating to the business of the Company, Employer and their respective Subsidiaries and Affiliates (including, without limitation, all acquisition prospects, lists and contact information) which he may then possess or have under his control.

 

(b) Ownership of Property. Executive acknowledges that all inventions, innovations, improvements, developments, methods, processes, programs, designs, analyses, drawings, reports, and all similar or related information (whether or not patentable) that relate to the Company’s, Employer’s or any of their respective Subsidiaries’ or Affiliates’ actual or anticipated business, research and development, or existing or future products or services and that are conceived, developed, contributed to, made, or reduced to practice by Executive (either solely or jointly with others) while employed by the Company, Employer or any of their respective Subsidiaries or Affiliates (including any of the foregoing that constitutes any proprietary information or records) (“Work Product”) belong to the Company, Employer or such Subsidiary or Affiliate and Executive hereby assigns, and agrees to assign, all of the above Work Product to the Company, Employer or to such Subsidiary or Affiliate. Any copyrightable work prepared in whole or in part by Executive in the course of his work for any of the foregoing entities shall be deemed a “work made for hire” under the copyright laws, and the Company, Employer or such Subsidiary or Affiliate shall own all rights therein. To the extent that any such copyrightable work is not a “work made for hire,” Executive hereby assigns and agrees to assign to the Company, Employer or such Subsidiary or Affiliate all right, title, and interest, including without limitation, copyright in and to such copyrightable work. Executive shall promptly disclose such Work Product and copyrightable work to the Board and perform all actions reasonably requested by the Board (whether during or after the Employment Period) to establish and confirm the Company’s, Employer’s or such Subsidiary’s or Affiliate’s ownership (including, without limitation, assignments, consents, powers of attorney, and other instruments).

 

(c) Third Party Information. Executive understands that the Company, Employer and their respective Subsidiaries and Affiliates will receive from third parties confidential or proprietary information (“Third Party Information”) subject to a duty on the Company’s, Employer’s and their respective Subsidiaries’ and Affiliates’ part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the Employment Period and thereafter, and without in any way limiting the provisions of Section 7(a) above, Executive will hold Third Party Information in the strictest confidence and will not disclose to anyone (other than personnel of the Company, Employer or their respective Subsidiaries or Affiliates who need to know such information in connection with their work for the Company, Employer or their respective Subsidiaries or Affiliates) or use, except in connection with his work for the Company, Employer or their respective Subsidiaries or Affiliates, Third Party Information unless expressly authorized by a member of the Board in writing or required by applicable law or by judicial, legislative or regulatory process.

 

8

(d) Use of Information of Prior Employers. During the Employment Period, Executive will not improperly use or disclose any confidential information or trade secrets, if any, of any former employers or any other Person to whom Executive has an obligation of confidentiality, and will not bring onto the premises of the Company, Employer or any of their respective Subsidiaries or Affiliates any unpublished documents or any property belonging to any former employer or any other Person to whom Executive has an obligation of confidentiality unless consented to in writing by the former employer or Person. Executive will use in the performance of his duties only information which is (i) generally known and used by Persons with training and experience comparable to Executive’s and that is (x) common knowledge in the industry or (y) is otherwise legally in the public domain, (ii) is otherwise provided or developed by the Company, Employer or any of their respective Subsidiaries or Affiliates or (iii) in the case of materials, property or information belonging to any former employer or other Person to whom Executive has an obligation of confidentiality, approved for such use in writing by such former employer or Person.

 

8. Noncompetition and Nonsolicitation. Executive acknowledges that in the course of his employment with Employer he will become familiar with the Company’s, Employer’s and their respective Subsidiaries’ trade secrets and with other confidential information concerning the Company, Employer and such Subsidiaries and that his services will be of special, unique and extraordinary value to the Company and Employer and such Subsidiaries. Therefore, Executive agrees that:

 

(a) Noncompetition. During the Employment Period and (i) in the event of a termination of Executive’s employment by Employer without Cause, the Severance Period or (ii) in the event of a termination of Executive’s employment for any other reason, for a period of two years thereafter (collectively, the “Noncompete Period”), he shall not, anywhere in the world, directly or indirectly own, manage, control, participate in, consult with, render services for, or in any manner engage in any business relating to the provision of interoperability solutions, clearing and settlement services, software and network services and related services to telecommunications companies and other third parties that compete with the businesses of the Company, Employer or their respective Subsidiaries or any business in which the Company, Employer or any of their respective Subsidiaries has entertained discussions or has requested and received information relating to the acquisition of such business by the Company, Employer or their respective Subsidiaries prior to the Separation; provided, however, that the Executive may own up to 1% of any class of an issuer’s publicly traded securities.

 

(b) Nonsolicitation. During the Noncompete Period, Executive shall not directly or indirectly through another entity (i) induce or attempt to induce any employee of the Company, Employer or their respective Subsidiaries to leave the employ of the Company, Employer or such Subsidiary, or in any way interfere with the relationship between the Company, Employer and any of their respective Subsidiaries and any employee thereof, (ii) hire any person who was an employee of the Company, Employer or any of their respective Subsidiaries within one year prior to the time such employee was hired by Executive, (iii) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company, Employer or any of their respective Subsidiaries to cease doing business with the Company,

 

9

Employer or such Subsidiary or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company and any Subsidiary or (iv) directly or indirectly acquire or attempt to acquire an interest in any business relating to the business of the Company, Employer or any of their respective Subsidiaries and with which the Company, Employer and any of their respective Subsidiaries has entertained discussions or has requested and received information relating to the acquisition of such business by the Company, Employer or any of their respective Subsidiaries in the two-year period immediately preceding a Separation.

 

(c) Enforcement. If, at the time of enforcement of Section 7 or this Section 8, a court holds that the restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, scope or geographical area reasonable under such circumstances shall be substituted for the stated perio