A SINGLE SUM OR IN INSTALLMENTS IN THE
ABSENCE OF SUCH DELAY) SHALL BE PAID OR REIMBURSED TO EXECUTIVE IN A LUMP SUM,
AND ALL REMAINING PAYMENTS AND BENEFITS DUE UNDER THIS AGREEMENT SHALL BE PAID
OR PROVIDED IN ACCORDANCE WITH THE NORMAL PAYMENT DATES SPECIFIED FOR THEM
HEREIN.
FOR PURPOSES OF CODE SECTION 409A, EXECUTIVE'S RIGHT TO RECEIVE
INSTALLMENT PAYMENTS PURSUANT TO THIS AGREEMENT SHALL BE TREATED AS A RIGHT TO
RECEIVE A SERIES OF SEPARATE AND DISTINCT PAYMENTS.
(I)
NO PAYMENTS, BENEFITS AND ENTITLEMENTS
RECEIVED BY EXECUTIVE HEREUNDER WILL BE SUBJECT TO ANY "GROSS-UP" PAYMENT OR
ADJUSTMENT WITH RESPECT TO ANY EXCISE TAX, OR ANY OTHER FEDERAL AND STATE INCOME
OR OTHER TAXES THAT MAY BE PAYABLE BY EXECUTIVE.
5.
CONFIDENTIAL INFORMATION.
(A)
OBLIGATION TO MAINTAIN CONFIDENTIALITY.
EXECUTIVE ACKNOWLEDGES THAT THE CONTINUED SUCCESS OF THE COMPANY AND ITS
SUBSIDIARIES, DEPENDS UPON THE USE AND PROTECTION OF A LARGE BODY OF
CONFIDENTIAL AND PROPRIETARY INFORMATION.
ALL OF SUCH CONFIDENTIAL AND
PROPRIETARY INFORMATION NOW EXISTING OR TO BE DEVELOPED IN THE FUTURE WILL BE
REFERRED TO IN THIS AGREEMENT AS "CONFIDENTIAL INFORMATION."
CONFIDENTIAL
INFORMATION WILL BE INTERPRETED AS BROADLY AS POSSIBLE TO INCLUDE ALL
INFORMATION OF ANY SORT (WHETHER MERELY REMEMBERED OR EMBODIED IN A TANGIBLE OR
INTANGIBLE FORM) THAT IS (I) RELATED TO THE COMPANY'S OR ITS SUBSIDIARIES'
CURRENT OR POTENTIAL BUSINESS AND (II) IS NOT GENERALLY OR PUBLICLY KNOWN.
CONFIDENTIAL INFORMATION INCLUDES, WITHOUT SPECIFIC LIMITATION, THE INFORMATION,
OBSERVATIONS AND DATA OBTAINED BY HIM DURING THE COURSE OF HIS PERFORMANCE UNDER
THIS AGREEMENT CONCERNING THE BUSINESS AND AFFAIRS OF THE COMPANY AND ITS
SUBSIDIARIES, INFORMATION CONCERNING ACQUISITION OPPORTUNITIES IN OR REASONABLY
RELATED TO THE COMPANY'S OR ITS SUBSIDIARIES' BUSINESS OR INDUSTRY OF WHICH
EXECUTIVE BECOMES AWARE DURING THE EMPLOYMENT PERIOD, THE PERSONS OR ENTITIES
THAT ARE CURRENT, FORMER OR PROSPECTIVE SUPPLIERS OR CUSTOMERS OF ANY ONE OR
MORE OF THEM DURING EXECUTIVE'S COURSE OF PERFORMANCE UNDER THIS AGREEMENT, AS
WELL AS DEVELOPMENT, TRANSITION AND TRANSFORMATION PLANS, METHODOLOGIES AND
METHODS OF DOING BUSINESS, STRATEGIC, MARKETING AND EXPANSION PLANS, INCLUDING
PLANS REGARDING PLANNED AND POTENTIAL SALES, FINANCIAL AND BUSINESS PLANS,
EMPLOYEE LISTS AND TELEPHONE NUMBERS, LOCATIONS OF SALES REPRESENTATIVES, NEW
AND EXISTING PROGRAMS AND SERVICES, PRICES AND TERMS, CUSTOMER SERVICE,
INTEGRATION PROCESSES, REQUIREMENTS AND COSTS OF PROVIDING SERVICE, SUPPORT AND
EQUIPMENT.
THEREFORE, EXECUTIVE AGREES THAT HE SHALL NOT DISCLOSE TO ANY
UNAUTHORIZED PERSON OR
7
USE FOR HIS OWN ACCOUNT ANY OF SUCH CONFIDENTIAL INFORMATION WITHOUT BOTH
BOARD'S PRIOR WRITTEN CONSENT, UNLESS AND TO THE EXTENT THAT ANY CONFIDENTIAL
INFORMATION (I) BECOMES GENERALLY KNOWN TO AND AVAILABLE FOR USE BY THE PUBLIC
OTHER THAN AS A RESULT OF EXECUTIVE'S ACTS OR OMISSIONS TO ACT OR (II) IS
REQUIRED TO BE DISCLOSED PURSUANT TO ANY APPLICABLE LAW OR COURT ORDER (PROVIDED
THAT EXECUTIVE PROVIDES THE COMPANY WITH PRIOR NOTICE OF THE CONTEMPLATED
DISCLOSURE AND COOPERATES WITH THE COMPANY AT ITS EXPENSE IN SEEKING A
PROTECTIVE ORDER OR OTHER APPROPRIATE PROTECTION OF SUCH INFORMATION).
EXECUTIVE AGREES TO DELIVER TO THE COMPANY AT