willful misconduct.
D.
INDIVIDUAL HAS NOT DISCLOSED AND WILL NOT DISCLOSE COMPANY
INFORMATION (DEFINED BELOW) AT ANY TIME PRIOR TO OR AFTER THE EFFECTIVE DATE OF
THIS AGREEMENT, OTHER THAN PURSUANT TO HIS PERFORMANCE OF DUTIES FOR COMPANY.
INDIVIDUAL HAS RETURNED TO COMPANY, OR WILL RETURN TO COMPANY BY THE DATE
PAYMENT HEREUNDER IS DUE, ALL COMPANY PROPERTY (DEFINED BELOW) NOT PURCHASED
FROM COMPANY AND WILL RETURN TO COMPANY IF REQUESTED BY COMPANY ALL DOCUMENTS
CONTAINING COMPANY INFORMATION AND ANY COPIES, DUPLICATES, REPRODUCTIONS OR
EXCERPTS OF COMPANY INFORMATION.
1.
"COMPANY INFORMATION" MEANS ANY
CONFIDENTIAL OR PROPRIETARY LEGAL, FINANCIAL, MARKETING, BUSINESS, TECHNICAL,
MANAGEMENT OR BUSINESS PLANS, BUSINESS STRATEGIES, SOFTWARE, SOFTWARE
EVALUATIONS, SYSTEMS DESIGNS, TRADE SECRETS, PERSONNEL INFORMATION, MARKETING
METHODS AND TECHNIQUES, CUSTOMER LISTS, OR OTHER INFORMATION, INCLUDING, BUT NOT
LIMITED TO, INFORMATION WHICH INDIVIDUAL PREPARED, CAUSED TO BE PREPARED, OR
RECEIVED IN CONNECTION WITH INDIVIDUAL'S EMPLOYMENT WITH COMPANY, AS IT RELATES
TO COMPANY, ITS EMPLOYEES OR ITS CUSTOMERS. COMPANY INFORMATION DOES NOT
INCLUDE: INFORMATION OR KNOWLEDGE: (A) WHICH MAY SUBSEQUENTLY COME INTO THE
PUBLIC DOMAIN AFTER THE INDIVIDUAL'S TERMINATION OF EMPLOYMENT (OR IS IN THE
PUBLIC DOMAIN PRIOR TO INDIVIDUAL'S TERMINATION OF EMPLOYMENT) OTHER THAN BY WAY
OF UNAUTHORIZED DISCLOSURE BY INDIVIDUAL; (B) WHICH INDIVIDUAL IS REQUIRED TO
DISCLOSE BY APPLICABLE LAW, SUBPOENA, OR ORDER OF A GOVERNMENTAL AGENCY OR COURT
AFTER TEN (10) DAYS NOTICE (IF SUCH NOTICE IS PRACTICABLE) HAS BEEN PROVIDED TO
COMPANY OF SUCH ORDER OR (C) .
2.
"COMPANY PROPERTY" SHALL INCLUDE, BUT
NOT BE LIMITED TO, KEYS, ACCESS CARDS, FILES, MEMORANDA, REPORTS, SOFTWARE,
CREDIT CARDS, COMPUTER DISKS, INSTRUCTIONAL AND MANAGEMENT MANUALS, BOOKS,
CELLULAR PHONES AND COMPUTER EQUIPMENT.
E.
INDIVIDUAL AND COMPANY HAVE HAD AN ADEQUATE OPPORTUNITY TO
NEGOTIATE THESE TERMS, HAVE HAD AN ADEQUATE OPPORTUNITY TO CONSULT WITH COUNSEL
IF SO DESIRED, AND THIS AGREEMENT SETS FORTH THE COMPLETE AGREEMENT BETWEEN
INDIVIDUAL AND COMPANY. NO OTHER
2
covenants or representations, express or implied, have been made or relied upon,
and no other consideration, other than that set forth herein, is due or owing.
F.
INDIVIDUAL ACKNOWLEDGES THAT INDIVIDUAL HAS BEEN ADVISED BY
COMPANY TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT.
INDIVIDUAL ALSO ACKNOWLEDGES BEING GIVEN AT LEAST TWENTY-ONE (21) DAYS WITHIN
WHICH TO CONSIDER THIS AGREEMENT, AND INDIVIDUAL HAS BEEN ADVISED THAT FOR A
PERIOD OF SEVEN (7) DAYS FOLLOWING EXECUTION OF THIS AGREEMENT, INDIVIDUAL MAY
REVOKE THIS AGREEMENT AND THAT IT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE LATER OF (I) THE EXPIRATION OF SAID SEVEN (7) DAY PERIOD OR (II) THE
DATE THIS AGREEMENT IS APPROVED BY THE U.S. BANKRUPTCY COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT IF THE SALE TRANSACTION DOES NOT
CLOSE, THEN THIS AGREEMENT SHALL BE NULL AND VOID AB INITIO AND WITHOUT ANY
FURTHER FORCE OR EFFECT. INDIVIDUAL AGREES THAT CHANGES IN THIS AGREEMENT WILL
NOT RESTART THE RUNNING OF THE AFOREMENTIONED 21-DAY CONSIDERATION PERIOD.
INDIVIDUAL ALSO AGREES THAT INDIVIDUAL MAY SIGN THIS AGREEMENT AT ANY TIME
DURING THE 21-DAY