FIRM SERVING AS THE
INDEPENDENT AUDITOR OF THE COMPANY OR OF ANOTHER COMPANY THAT IS A PARTY TO A
BUSINESS COMBINATION, IF APPLICABLE;
(5)
"PARACHUTE VALUE" OF A PAYMENT SHALL MEAN
THE PRESENT VALUE AS OF THE DATE OF THE CHANGE OF CONTROL FOR PURPOSES OF
SECTION 280G OF THE CODE OF THE PORTION OF SUCH PAYMENT THAT CONSTITUTES A
"PARACHUTE PAYMENT" UNDER SECTION 280G(B)(2), AS DETERMINED BY THE ACCOUNTING
FIRM FOR PURPOSES OF DETERMINING WHETHER AND TO WHAT EXTENT THE EXCISE TAX WILL
APPLY TO SUCH PAYMENT; AND
(6)
"REDUCED AMOUNT" SHALL MEAN THE AMOUNT OF
AGREEMENT PAYMENTS THAT (X) HAS A PRESENT VALUE THAT IS LESS THAN THE PRESENT
VALUE OF ALL AGREEMENT PAYMENTS AND (Y) RESULTS
14
IN AGGREGATE NET AFTER-TAX RECEIPTS FOR ALL PAYMENTS THAT ARE GREATER THAN THE
NET AFTER-TAX RECEIPTS FOR ALL PAYMENTS THAT WOULD RESULT IF THE AGGREGATE
PRESENT VALUE OF AGREEMENT PAYMENTS WERE ANY OTHER AMOUNT THAT IS LESS THAN THE
PRESENT VALUE OF ALL AGREEMENT PAYMENTS.
SECTION 9.
CONFIDENTIAL
INFORMATION.
THE EXECUTIVE SHALL HOLD IN A FIDUCIARY CAPACITY FOR THE BENEFIT
OF THE COMPANY ALL SECRET OR CONFIDENTIAL INFORMATION, KNOWLEDGE OR DATA
RELATING TO THE COMPANY OR THE AFFILIATED COMPANIES, AND THEIR RESPECTIVE
BUSINESSES, WHICH INFORMATION, KNOWLEDGE OR DATA SHALL HAVE BEEN OBTAINED BY THE
EXECUTIVE DURING THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY OR THE AFFILIATED
COMPANIES AND WHICH INFORMATION, KNOWLEDGE OR DATA SHALL NOT BE OR BECOME PUBLIC
KNOWLEDGE (OTHER THAN BY ACTS BY THE EXECUTIVE OR REPRESENTATIVES OF THE
EXECUTIVE IN VIOLATION OF THIS AGREEMENT).
AFTER TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, THE EXECUTIVE SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY OR AS MAY OTHERWISE BE REQUIRED BY LAW OR LEGAL PROCESS,
COMMUNICATE OR DIVULGE ANY SUCH INFORMATION, KNOWLEDGE OR DATA TO ANYONE OTHER
THAN THE COMPANY AND THOSE PERSONS DESIGNATED BY THE COMPANY.
IN NO EVENT SHALL
AN ASSERTED VIOLATION OF THE PROVISIONS OF THIS SECTION 9 CONSTITUTE A BASIS FOR
DEFERRING OR WITHHOLDING ANY AMOUNTS OTHERWISE PAYABLE TO THE EXECUTIVE UNDER
THIS AGREEMENT.
SECTION 10.
SUCCESSORS.
(A)
THIS
AGREEMENT IS PERSONAL TO THE EXECUTIVE, AND, WITHOUT THE PRIOR WRITTEN CONSENT
OF THE COMPANY, SHALL NOT BE ASSIGNABLE BY THE EXECUTIVE OTHER THAN BY WILL OR
THE LAWS OF DESCENT AND DISTRIBUTION.
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF AND BE ENFORCEABLE BY THE EXECUTIVE'S LEGAL REPRESENTATIVES.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
EXCEPT AS
PROVIDED IN SECTION 10(C), WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY THE COMPANY.
(C)
THE COMPANY WILL REQUIRE ANY SUCCESSOR
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY TO ASSUME
EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION