THE TIME OF THE SALE.
6
12.
RESTRICTIVE COVENANTS.
(A)
EXECUTIVE
ACKNOWLEDGES AND AGREES THAT AS A RESULT OF HIS EMPLOYMENT BY THE COMPANY, THE
EXECUTIVE HAD OBTAINED, AND WILL CONTINUE TO HAVE THE OPPORTUNITY TO OBTAIN,
CONFIDENTIAL INFORMATION AS TO THE COMPANY AND ITS AFFILIATES AND THEY WILL
SUFFER SUBSTANTIAL DAMAGE, WHICH WOULD BE DIFFICULT TO ASCERTAIN, IF THE
EXECUTIVE SHOULD USE SUCH CONFIDENTIAL INFORMATION AND THAT BECAUSE OF THE
NATURE OF THE INFORMATION THAT IS, AND WILL BE, KNOWN TO THE EXECUTIVE IT IS
NECESSARY FOR THE COMPANY AND ITS AFFILIATES TO BE PROTECTED BY THE
CONFIDENTIALITY RESTRICTIONS SET FORTH HEREIN.
EXECUTIVE FURTHER ACKNOWLEDGES
AND AGREES WITH THE COMPANY THAT, AS A RESULT OF HIS EMPLOYMENT BY THE COMPANY,
THE EXECUTIVE HAS HAD, AND WILL CONTINUE TO HAVE, THE OPPORTUNITY TO DEVELOP
RELATIONSHIPS WITH EXISTING EMPLOYEES, CUSTOMERS AND OTHER BUSINESS ASSOCIATES
OF THE COMPANY, WHICH RELATIONSHIPS CONSTITUTE "GOODWILL" OF THE COMPANY AND ITS
AFFILIATES, AND THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE COMPANY AND ITS
AFFILIATES WOULD BE IRREPARABLY DAMAGED IF THE EXECUTIVE WERE TO TAKE ACTIONS
THAT WOULD DAMAGE OR MISAPPROPRIATE SUCH "GOODWILL."
(B)
CONFIDENTIAL INFORMATION.
DURING AND AFTER
THE EMPLOYMENT TERM, THE EXECUTIVE SHALL NOT USE FOR HIS OWN BENEFIT OR DISCLOSE
TO ANY THIRD-PARTY ANY CONFIDENTIAL INFORMATION (AS DEFINED BELOW) RELATING TO
THE COMPANY OR ITS AFFILIATES (AND THEIR RESPECTIVE BUSINESSES), OBTAINED BY THE
EXECUTIVE DURING HIS EMPLOYMENT BY THE COMPANY.
FOR PURPOSES OF THIS AGREEMENT,
CONFIDENTIAL INFORMATION MEANS: (I) ANY INFORMATION WHICH IS PROPRIETARY OR
UNIQUE TO THE COMPANY OR ITS AFFILIATES (OR THEIR BUSINESSES), INCLUDING, BUT
NOT LIMITED TO, TRADE SECRET INFORMATION, MATTERS OF A TECHNICAL NATURE SUCH AS
PROCESSES, SYSTEMS, FUNCTIONAL SPECIFICATIONS, BLUEPRINTS, COMPUTER PROGRAMS,
KNOW-HOW, IMPROVEMENTS, DISCOVERIES, DESIGNS, INVENTIONS, DEVICES, TECHNIQUES,
DATA AND FORMULAS, RESEARCH SUBJECTS AND RESULTS; (II) INFORMATION OF A
STRATEGIC NATURE, INCLUDING, BUT NOT LIMITED TO, ANY INFORMATION WITH RESPECT TO
MARKETING METHODS, PLANS AND STRATEGIES, DISTRIBUTION CHANNELS, FORECASTS,
PRODUCTS, OPERATIONS, REVENUES, UNPUBLISHED FINANCIAL STATEMENTS, EXPENSES,
BUDGETS, PROJECTIONS, PROFITS, SALES, KEY PERSONNEL, CUSTOMERS (INCLUDING
CUSTOMER LISTS AND CUSTOMER CONTACTS), SUPPLIERS, COSTS AND PRICING POLICIES;
(III) INFORMATION AS TO EMPLOYEES AND CONSULTANTS, INCLUDING, BUT NOT LIMITED
TO, CAPABILITIES, COMPETENCE, STATUS WITH THE COMPANY AND COMPENSATION LEVELS;
AND (IV) ANY INFORMATION THE COMPANY OR AN AFFILIATE HAS INDICATED TO THE
EXECUTIVE IN AN UNAMBIGUOUS WRITING IS CONFIDENTIAL.
CONFIDENTIAL INFORMATION
SHALL NOT INCLUDE INFORMATION: (X) THAT IS OTHERWISE PUBLIC KNOWLEDGE OR KNOWN
WITHIN THE APPLICABLE INDUSTRY, (Y) DISCLOSED IN CONNECTION WITH PERFORMANCE OF
THE EXECUTIVE'S DUTIES HEREUNDER AS THE EXECUTIVE DEEMS IN GOOD FAITH TO BE
NECESSARY TO BE SO DISCLOSED OR (Z) COMPELLED PURSUANT TO THE ORDER OF A COURT
OR OTHER GOVERNMENTAL OR LEGAL BODY HAVING JURISDICTION OVER SUCH MATTER.
IN
THE EVENT THE EXECUTIVE IS COMPELLED BY ORDER OF A COURT OR OTHER GOVERNMENTAL
OR LEGAL BODY TO COMMUNICATE OR DIVULGE ANY CONFIDENTIAL INFORMATION TO ANYONE
OTHER THAN THE FOREGOING, THE EXECUTIVE SHALL PROMPTLY NOTIFY THE COMPANY'S
GENERAL COUNSEL OF ANY SUCH ORDER SO THAT THE COMPANY