BOUND BY CONFIDENTIALITY OBLIGATIONS), ANY NON-PUBLIC,
PROPRIETARY OR CONFIDENTIAL INFORMATION OBTAINED BY EXECUTIVE IN CONNECTION WITH
THE COMMENCEMENT OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY OR AT ANY TIME
THEREAFTER DURING THE COURSE OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY -
INCLUDING WITHOUT LIMITATION TRADE SECRETS, KNOW-HOW, RESEARCH AND DEVELOPMENT,
4
SOFTWARE, DATABASES, INVENTIONS, PROCESSES, FORMULAE, TECHNOLOGY, DESIGNS AND
OTHER INTELLECTUAL PROPERTY, INFORMATION CONCERNING FINANCES, INVESTMENTS,
PROFITS, PRICING, COSTS, PRODUCTS, SERVICES, VENDORS, CUSTOMERS, CLIENTS,
PARTNERS, INVESTORS, PERSONNEL, COMPENSATION, RECRUITING, TRAINING, ADVERTISING,
SALES, MARKETING, PROMOTIONS, GOVERNMENT AND REGULATORY ACTIVITIES AND APPROVALS
- CONCERNING THE PAST, CURRENT OR FUTURE BUSINESS, ACTIVITIES AND OPERATIONS OF
THE COMPANY AND/OR ANY THIRD PARTY THAT HAS DISCLOSED OR PROVIDED ANY OF THE
SAME TO THE COMPANY ON A CONFIDENTIAL BASIS (PROVIDED THAT WITH RESPECT TO SUCH
THIRD PARTY EXECUTIVE KNOWS OR REASONABLY SHOULD HAVE KNOWN THAT THE THIRD PARTY
PROVIDED IT TO THE COMPANY ON A CONFIDENTIAL BASIS) ("CONFIDENTIAL INFORMATION")
WITHOUT THE PRIOR WRITTEN AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE
COMPANY; PROVIDED, HOWEVER, THAT IN ANY EVENT EXECUTIVE SHALL BE PERMITTED TO
DISCLOSE ANY CONFIDENTIAL INFORMATION REASONABLY NECESSARY (I) TO PERFORM
EXECUTIVE'S DUTIES WHILE EMPLOYED WITH THE COMPANY OR (II) IN CONNECTION WITH
ANY LITIGATION OR ARBITRATION INVOLVING THIS OR ANY OTHER AGREEMENT ENTERED INTO
BETWEEN EXECUTIVE AND THE COMPANY BEFORE, ON OR AFTER THE DATE OF THIS AGREEMENT
IN CONNECTION WITH ANY ACTION OR PROCEEDING IN RESPECT THEREOF.
(II)
"CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE ANY INFORMATION THAT
IS (A) GENERALLY KNOWN TO THE INDUSTRY OR THE PUBLIC OTHER THAN AS A RESULT OF
EXECUTIVE'S BREACH OF THIS COVENANT OR ANY BREACH OF OTHER CONFIDENTIALITY
OBLIGATIONS BY THIRD PARTIES TO THE EXTENT THE EXECUTIVE KNOWS OR REASONABLY
SHOULD HAVE KNOWN OF SUCH BREACH BY SUCH THIRD PARTIES; (B) MADE LEGITIMATELY
AVAILABLE TO EXECUTIVE BY A THIRD PARTY (UNLESS EXECUTIVE KNOWS OR REASONABLY
SHOULD HAVE KNOWN THAT SUCH THIRD PARTY HAS BREACHED ANY CONFIDENTIALITY
OBLIGATION); OR (C) REQUIRED BY LAW OR BY ANY COURT, ARBITRATOR, MEDIATOR OR
ADMINISTRATIVE OR LEGISLATIVE BODY (INCLUDING ANY COMMITTEE THEREOF) WITH ACTUAL
OR APPARENT JURISDICTION TO ORDER EXECUTIVE TO DISCLOSE OR MAKE ACCESSIBLE ANY
INFORMATION; PROVIDED THAT, WITH RESPECT TO CLAUSE (C) EXECUTIVE, EXCEPT AS
OTHERWISE PROHIBITED BY LAW OR REGULATION, SHALL GIVE PROMPT WRITTEN NOTICE TO
THE COMPANY OF SUCH REQUIREMENT, DISCLOSE NO MORE INFORMATION THAN IS SO
REQUIRED, AND SHALL REASONABLY COOPERATE WITH ANY ATTEMPTS BY THE COMPANY, AT
ITS SOLE COST, TO OBTAIN A PROTECTIVE ORDER OR SIMILAR TREATMENT PRIOR TO MAKING
SUCH DISCLOSURE.
(III)
EXCEPT AS REQUIRED BY LAW OR OTHERWISE SET FORTH IN
SECTION 3(II) ABOVE, OR UNLESS OR UNTIL PUBLICLY DISCLOSED BY THE COMPANY,
EXECUTIVE WILL NOT DISCLOSE TO ANYONE, OTHER THAN EXECUTIVE'S IMMEDIATE FAMILY
AND LEGAL, TAX OR FINANCIAL ADVISORS, THE MATERIAL PROVISIONS OF THIS AGREEMENT;
PROVIDED THAT EXECUTIVE MAY DISCLOSE THE PROVISIONS OF THIS AGREEMENT (A) TO ANY
PROSPECTIVE FUTURE EMPLOYER PROVIDED THEY AGREE TO MAINTAIN THE CONFIDENTIALITY
OF SUCH TERMS OR (B) IN CONNECTION WITH ANY LITIGATION OR ARBITRATION INVOLVING
THIS AGREEMENT.