BUT
UNTAKEN VACATION DAYS, OTHERWISE PAYABLE TO HIM UNDER SECTIONS 4.1 THROUGH 4.5
RESPECTIVELY THROUGH THE LAST DAY OF HIS ACTUAL EMPLOYMENT BY THE COMPANY
(COLLECTIVELY, THE "ACCRUED OBLIGATIONS").
6.2
TERMINATION BY THE COMPANY WITHOUT CAUSE.
IN THE EVENT THAT
EXECUTIVE'S EMPLOYMENT IS TERMINATED PURSUANT TO SECTION 5.2:
THE COMPANY
SHALL: (A) PAY TO EXECUTIVE THE ACCRUED OBLIGATIONS PLUS TWO TIMES HIS ANNUAL
BASE SALARY AND 65% OF HIS TARGETED TOTAL BONUS AMOUNT THEN IN EFFECT, OR THREE
TIMES SUCH ANNUAL BASE SALARY AND 65% OF HIS TARGETED TOTAL BONUS AMOUNT IF SUCH
TERMINATION OCCURS WITHIN TWELVE MONTHS FOLLOWING A CHANGE IN CONTROL (A
"TERMINATION ON CIC"), LESS APPLICABLE WITHHOLDINGS, IN A LUMP SUM TO BE PAID
WITHIN 30 DAYS OF TERMINATION; (B) PROVIDE HEALTH AND DENTAL INSURANCE BENEFITS
AS SET FORTH IN SECTION 4.5 FOR A TWENTY-FOUR MONTH PERIOD, OR A THIRTY-SIX
MONTH PERIOD IF SUCH TERMINATION IS A TERMINATION ON CIC; (C) PAY TO EXECUTIVE A
LUMP SUM CASH EQUIVALENT OF THE VALUE OF ALL OTHER FRINGE BENEFITS PROVIDED TO
EXECUTIVE PURSUANT TO SECTION 4.5 ABOVE IMMEDIATELY PRIOR TO SUCH TERMINATION,
VALUED AT THE COST TO THE COMPANY OF SUCH OTHER FRINGE BENEFITS OVER A
TWENTY-FOUR
4
MONTH PERIOD, OR A THIRTY-SIX MONTH PERIOD IF SUCH TERMINATION IS A TERMINATION
ON CIC, AND PAID WITHIN 30 DAYS OF TERMINATION; AND (D) PAY TO EXECUTIVE A BONUS
PAYMENT PURSUANT TO SECTION 4.2 FOR THE FISCAL YEAR IN WHICH EXECUTIVE IS
TERMINATED, WITH SUCH AMOUNT BEING EQUAL TO THE TOTAL BONUS AMOUNT FOR SUCH YEAR
(LESS ALL AMOUNTS OF THE TOTAL BONUS AMOUNT THAT HAVE BEEN PAID IN SUCH YEAR)
MULTIPLIED BY THE QUOTIENT OF THE NUMBER OF FULL OR PARTIAL WEEKS EXECUTIVE WAS
EMPLOYED DURING SUCH FISCAL YEAR DIVIDED BY 52, AND PAYABLE WITHIN 30 DAYS OF
TERMINATION.
EXECUTIVE'S RESTRICTED SHARES SHALL CONTINUE TO VEST FOR
TWENTY-FOUR MONTHS FOLLOWING SUCH TERMINATION.
6.3
Section
409A of the Internal Revenue Code. This Agreement is
intended to comply with the "short-term deferral" rule of the regulations under
section 409A of the Internal Revenue Code of 1986, as amended ("Section 409A")
and, as a result, not to be subject to Section 409A.
If and to the extent that
section 409A does apply to any payments under this Agreement, such payments
shall be paid only upon an event permitted under 409A and at the earliest date
permitted by Section 409A.
7.
NON-DISCLOSURE AND NON-COMPETITION.
7.1
PROPRIETARY INFORMATION.
(A)
EXECUTIVE AGREES THAT ALL INFORMATION AND KNOW-HOW, WHETHER OR NOT
IN WRITING, OF A PRIVATE, SECRET OR CONFIDENTIAL NATURE CONCERNING THE COMPANY'S
BUSINESS OR FINANCIAL AFFAIRS (COLLECTIVELY, "PROPRIETARY INFORMATION") IS AND
SHALL BE THE EXCLUSIVE PROPERTY OF THE COMPANY.
BY WAY OF ILLUSTRATION, BUT NOT
LIMITATION, PROPRIETARY INFORMATION MAY INCLUDE INVENTIONS, PRODUCTS, PROCESSES,
METHODS, TECHNIQUES, FORMULAS, COMPOSITIONS, COMPOUNDS, PROJECTS, DEVELOPMENTS,
PLANS, RESEARCH DATA, CLINICAL DATA, FINANCIAL DATA, PERSONNEL DATA, COMPUTER
PROGRAMS, AND CUSTOMER AND SUPPLIER LISTS.
EXECUTIVE WILL NOT DISCLOSE ANY
PROPRIETARY INFORMATION TO OTHERS OUTSIDE THE COMPANY OR USE THE SAME FOR ANY
UNAUTHORIZED