Saks Fifth Avenue 2008 Annual Report Download - page 266

reasonably necessary to preserve its goodwill and the confidentiality of the Confidential Information in accordance
with this Agreement, and that includes all other terms and conditions that the Company determines in its sole
discretion are reasonably necessary under the circumstances. The restrictions in the foregoing sentences of this
Section 12(b)(iv)(D) apply to the Executive’s direct and indirect performance of the same or similar activities the
Executive has performed for the Company or any of its affiliates and to all other activities that reasonably could lead
to the use or the disclosure of Confidential Information. The Executive will not have violated this Section 12(b)(iv)
(D) solely as a result of the Executive’s investment in capital stock or other securities of a Competitor or any of its
Affiliates (as defined below in this Section 12(b)(iv)(D)) listed on a national securities exchange or actively traded
in the over-the-counter market if the Executive and the members of the Executive’s immediate family together do
not, directly or indirectly, hold more than one percent of all such shares of capital stock or other securities issued
and outstanding. For purposes of this Section 12(b)(iv)(D), the term “Competitor” means each of The Neiman
Marcus Group, Inc., Barney’s New York, Inc., Nordstrom, Inc., and the Bloomingdale’s division of Federated
Department Stores, Inc., and the Affiliates and successors of each of them. For purposes of this Section 12(b)(iv)
(D), “Affiliate” means with respect to a specific corporation, limited liability company, general or limited
partnership, sole proprietorship, or other for profit or non-profit business organization or association (each the
“subject entity”), any other corporation, limited liability company, general or limited partnership, sole
proprietorship, or other for profit or non-profit business organization or association directly or indirectly controlling
or controlled by or directly or indirectly under common control with the subject entity.
(v) The Executive acknowledges and agrees that (A) the restrictions contained in this Section 12(b) are ancillary to an
otherwise enforceable agreement, (B) the agreements and undertakings of the Company in this Agreement and the
Executive’s position and responsibilities with the Company give rise to, and are valid consideration for, the Company’s
interest in restricting the Executive’s post-employment activities, (C) the restrictions are reasonably designed to enforce the
Executive’s agreements and undertakings in this Section 12(b) and the Executive’s common-law obligations and duties
owed to the Company and its affiliates, (D) the restrictions are reasonable and necessary, valid and enforceable under New
York law, and do not impose a greater restraint than reasonably necessary to protect the goodwill and other legitimate
business interests of the Company and its affiliates and the Confidential Information, (E) the agreements and undertakings
of the Company and the Executive in this Section 12(b) are not contingent on the duration of the Executive’s employment
with the Company; and (F) absent the agreements and undertakings made by the Executive in this Section 12(b), the
Company would not provide the Executive with Confidential Information, would not authorize the Executive to engage in
activities that would create new and additional Confidential Information, and would not have entered into this Agreement.
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