A TRADE SECRET AND THAT IS
NOT GENERALLY KNOWN BY OR AVAILABLE THROUGH LEGAL MEANS TO THE PUBLIC,
INCLUDING, BUT NOT LIMITED TO, INFORMATION REGARDING THE BUYER'S, ANY OF ITS
AFFILIATE'S OR THE COMPANY'S CUSTOMERS OR PROSPECTIVE CUSTOMERS, ACQUISITION
TARGETS, SUPPLIERS, MANUFACTURERS AND DISTRIBUTORS GAINED BY SELLER AS A RESULT
OF HIS OR HER EMPLOYMENT WITH THE BUYER, ITS AFFILIATES OR THE COMPANY.
SELLER
HEREBY AGREES THAT WITH REGARD TO EACH ITEM CONSTITUTING ALL OR ANY PORTION OF
THE TRADE SECRETS AND NON-PUBLIC INFORMATION, AT ALL TIMES DURING WHICH SUCH
ITEM CONTINUES TO CONSTITUTE A TRADE SECRET OR NON-PUBLIC INFORMATION,
RESPECTIVELY:
(A)
SELLER SHALL HOLD IN CONFIDENCE ALL TRADE SECRETS AND ALL
NON-PUBLIC INFORMATION AND WILL NOT, EITHER DIRECTLY OR INDIRECTLY, USE, SELL,
LEND, LEASE, DISTRIBUTE, LICENSE, GIVE, TRANSFER, ASSIGN, SHOW, DISCLOSE,
DISSEMINATE, REPRODUCE, COPY, APPROPRIATE OR OTHERWISE COMMUNICATE ANY TRADE
SECRETS OR NON-PUBLIC INFORMATION, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
BUYER, UNLESS THE FURNISHING OF SUCH INFORMATION IS REQUIRED BY LAW, IN WHICH
CASE SELLER MAY MAKE SUCH DISCLOSURE ONLY TO THE EXTENT NECESSARY, IN THE
OPINION OF COUNSEL FOR SELLER, TO COMPLY WITH SUCH LEGAL REQUIREMENT.
IN THE
EVENT THAT SELLER IS REQUIRED BY LAW TO DISCLOSE ANY TRADE SECRET OR NON-PUBLIC
INFORMATION, SELLER WILL, AS PROMPTLY AS POSSIBLE AND IN ANY EVENT PRIOR TO THE
MAKING
3
OF SUCH DISCLOSURE, NOTIFY THE BUYER OF ANY SUCH REQUIREMENT AND WILL COOPERATE
WITH THE BUYER IN SEEKING A PROTECTIVE ORDER OR OTHER MEANS OF PROTECTING THE
CONFIDENTIALITY OF ANY SUCH TRADE SECRET OR NON-PUBLIC INFORMATION; AND
(B)
SELLER SHALL IMMEDIATELY NOTIFY THE BUYER OF ANY UNAUTHORIZED
DISCLOSURE OR USE OF ANY TRADE SECRETS OR NON-PUBLIC INFORMATION OF WHICH THE
SELLER BECOMES AWARE.
SELLER SHALL ASSIST THE BUYER, TO THE EXTENT NECESSARY,
IN THE PROCUREMENT OR ANY PROTECTION OF THE BUYER'S, ANY OF ITS AFFILIATE'S OR
THE COMPANY'S RIGHTS TO OR IN ANY OF THE TRADE SECRETS OR NON-PUBLIC
INFORMATION.
5.
MISCELLANEOUS.
(A)
SEVERABILITY AND BLUE PENCIL DOCTRINE.
WHENEVER POSSIBLE, EACH
PROVISION OF THIS AGREEMENT SHALL BE INTERPRETED IN SUCH MANNER AS TO BE
EFFECTIVE AND VALID UNDER APPLICABLE LAW. HOWEVER, IF THE DURATION OR
GEOGRAPHICAL EXTENT OF, OR BUSINESS ACTIVITIES COVERED BY, THIS AGREEMENT ARE IN
EXCESS OF WHAT IS VALID AND ENFORCEABLE UNDER APPLICABLE LAW, THEN SUCH
PROVISION SHALL BE CONSTRUED TO COVER ONLY THAT DURATION, GEOGRAPHICAL EXTENT OR
ACTIVITIES THAT ARE VALID AND ENFORCEABLE.
SELLER ACKNOWLEDGES THE UNCERTAINTY
OF THE LAW IN THIS RESPECT AND EXPRESSLY STIPULATES THAT THIS AGREEMENT IS TO BE
GIVEN THE CONSTRUCTION THAT RENDERS ITS PROVISIONS VALID AND ENFORCEABLE TO THE
MAXIMUM EXTENT (NOT EXCEEDING ITS EXPRESS TERMS) POSSIBLE UNDER APPLICABLE LAW.
FURTHER, IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE PROHIBITED BY OR
INVALID UNDER APPLICABLE LAW, SUCH PROVISION WILL BE INEFFECTIVE ONLY TO THE
EXTENT OF SUCH PROHIBITION OR INVALIDITY, WITHOUT INVALIDATING THE REMAINDER OF
SUCH PROVISION OR THE REMAINING PROVISIONS OF THIS AGREEMENT.
(B)
REMEDIES.
SELLER ACKNOWLEDGES THAT IT WOULD BE DIFFICULT TO FULLY
COMPENSATE THE