PAYMENTS AND BENEFITS.
IN THE EVENT THAT ANY
AMOUNT PAYABLE TO EXECUTIVE BY THE COMPANY OR ANY OF ITS AFFILIATES (WHETHER
UNDER THE AGREEMENT OR OTHERWISE) (A) CONSTITUTES A "PARACHUTE PAYMENT" WITHIN
THE MEANING OF SECTION 280G OF THE CODE, AND (B) BUT FOR THIS SECTION 6, WOULD
BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE (THE "EXCISE
TAX"), THEN SUCH PAYMENT(S) SHALL BE EITHER (I) DELIVERED IN FULL, OR
(II) DELIVERED TO SUCH LESSER EXTENT AS WOULD RESULT IN NO PORTION OF SUCH
PAYMENT(S) BENEFITS BEING SUBJECT TO THE EXCISE TAX, WHICHEVER OF THE FOREGOING
AMOUNTS, TAKING INTO ACCOUNT THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME
TAXES AND THE EXCISE TAX, RESULTS IN THE RECEIPT BY EXECUTIVE ON AN AFTER-TAX
BASIS, OF THE GREATEST AMOUNT, NOTWITHSTANDING THAT ALL OR SOME PORTION OF SUCH
PAYMENT MAY BE TAXABLE UNDER SECTION 4999 OF THE CODE.
UNLESS THE COMPANY AND
EXECUTIVE OTHERWISE AGREE IN WRITING, ANY DETERMINATION REQUIRED UNDER THIS
SECTION SHALL BE MADE IN WRITING IN GOOD FAITH BY A PROFESSIONAL ADVISOR
REASONABLY SELECTED BY THE COMPANY (THE "ADVISOR"), IN GOOD FAITH CONSULTATION
WITH EXECUTIVE.
IF A REDUCTION IS REQUIRED IN ACCORDANCE WITH THIS SECTION,
CASH PAYMENTS WILL BE REDUCED BEFORE ANY ACCELERATION OF VESTING OR FORFEITURE
CONDITIONS ARE ELIMINATED AND FUTURE PAYMENTS WILL BE REDUCED BEFORE AMOUNTS
THAT ARE IMMEDIATELY PAYABLE.
FOR PURPOSES OF MAKING THE CALCULATIONS REQUIRED
BY THIS
6
SECTION, THE ADVISOR MAY MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS
CONCERNING APPLICABLE TAXES AND MAY RELY ON REASONABLE, GOOD FAITH
INTERPRETATIONS CONCERNING THE APPLICATION OF SECTIONS 280G AND 4999 OF THE
CODE.
THE COMPANY AND EXECUTIVE SHALL FURNISH TO THE ADVISOR SUCH INFORMATION
AND DOCUMENTS AS THE ADVISOR MAY REASONABLY REQUEST IN ORDER TO MAKE A
DETERMINATION UNDER THIS SECTION 6. THE COMPANY SHALL BEAR ALL COSTS THE ADVISOR
MAY REASONABLY INCUR IN CONNECTION WITH ANY CALCULATIONS CONTEMPLATED BY THIS
SECTION 6.
7.
COVENANTS BY EXECUTIVE.
(A)
CONFIDENTIALITY AND NON-DISCLOSURE.
EXECUTIVE ACKNOWLEDGES THAT
BY VIRTUE OF HIS EMPLOYMENT WITH THE COMPANY, HE HAS AND WILL IN THE FUTURE BE
EXPOSED TO OR HAS HAD OR MAY HAVE ACCESS TO CONFIDENTIAL INFORMATION OF COMPANY
OR ITS AFFILIATES REGARDING ITS OR THEIR BUSINESSES (WHETHER OR NOT DEVELOPED BY
EXECUTIVE), INCLUDING, BUT NOT LIMITED TO, ALGORITHMS, SOURCE CODE, SYSTEM
DESIGNS, DATA FORMATS, ANALYTICAL PROCESSES, METHODOLOGIES, BUSINESS PRACTICES,
FINANCIAL INFORMATION OR PROJECTIONS, CUSTOMER LISTS OR RECORDS, CUSTOMER
INFORMATION, EMPLOYEE RECORDS, MARK-UPS, PROJECT MATERIALS, MARKETING
TECHNIQUES, SUPPLIER INFORMATION, ACCOUNTING METHODOLOGIES, CREATIONS OR OTHER
INFORMATION THAT GIVES, OR MAY GIVE, THE COMPANY OR ITS AFFILIATES AN ADVANTAGE
IN THE MARKETPLACE AGAINST ITS COMPETITORS (ALL OF THE FOREGOING ARE HEREINAFTER
REFERRED TO COLLECTIVELY AS THE "PROPRIETARY INFORMATION" EXCEPT FOR INFORMATION
THAT WAS IN THE PUBLIC DOMAIN WHEN ACQUIRED OR DEVELOPED BY THE COMPANY, OR THAT
SUBSEQUENTLY ENTERS THE PUBLIC DOMAIN OTHER THAN AS A RESULT OF A BREACH OF THIS
OR ANY OTHER AGREEMENT OR COVENANT).
EXECUTIVE FURTHER ACKNOWLEDGES THAT IT
WOULD BE POSSIBLE FOR EXECUTIVE, UPON TERMINATION OF HIS EMPLOYMENT