OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES.
"CONFIDENTIAL INFORMATION" SHALL MEAN
INFORMATION ABOUT THE COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, AND
THEIR RESPECTIVE BUSINESSES, EMPLOYEES, CONSULTANTS, CONTRACTORS, CLIENTS AND
CUSTOMERS THAT IS NOT DISCLOSED BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
AFFILIATES FOR FINANCIAL REPORTING PURPOSES OR OTHERWISE GENERALLY MADE
AVAILABLE TO THE PUBLIC (OTHER THAN
4
BY EXECUTIVE'S BREACH OF THE TERMS HEREOF OR THE TERMS OF ANY PREVIOUS
CONFIDENTIALITY OBLIGATION BY EXECUTIVE TO THE COMPANY) AND THAT WAS LEARNED OR
DEVELOPED BY EXECUTIVE IN THE COURSE OF EMPLOYMENT BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES OR AFFILIATES, INCLUDING (WITHOUT LIMITATION) ANY PROPRIETARY
KNOWLEDGE, TRADE SECRETS, DATA, FORMULAE, INFORMATION AND CLIENT AND CUSTOMER
LISTS AND ALL PAPERS, RESUMES, AND RECORDS (INCLUDING COMPUTER RECORDS) OF THE
DOCUMENTS CONTAINING SUCH CONFIDENTIAL INFORMATION.
EXECUTIVE ACKNOWLEDGES THAT
SUCH CONFIDENTIAL INFORMATION IS SPECIALIZED, UNIQUE IN NATURE AND OF GREAT
VALUE TO THE COMPANY AND ITS SUBSIDIARIES OR AFFILIATES, AND THAT SUCH
INFORMATION GIVES THE COMPANY AND ITS SUBSIDIARIES OR AFFILIATES A COMPETITIVE
ADVANTAGE.
EXECUTIVE AGREES TO DELIVER OR RETURN TO THE COMPANY, AT THE
COMPANY'S REQUEST AT ANY TIME OR UPON TERMINATION OR EXPIRATION OF EXECUTIVE'S
EMPLOYMENT OR AS SOON THEREAFTER AS POSSIBLE, ALL DOCUMENTS, COMPUTER TAPES AND
DISKS, RECORDS, LISTS, DATA, DRAWINGS, PRINTS, NOTES AND WRITTEN INFORMATION
(AND ALL COPIES THEREOF) FURNISHED BY THE COMPANY AND ITS SUBSIDIARIES OR
AFFILIATES OR PREPARED BY EXECUTIVE IN THE COURSE OF EXECUTIVE'S EMPLOYMENT BY
THE COMPANY AND ITS SUBSIDIARIES OR AFFILIATES.
AS USED IN THIS AGREEMENT,
"SUBSIDIARIES" AND
"AFFILIATES" SHALL MEAN ANY COMPANY CONTROLLED BY,
CONTROLLING OR UNDER COMMON CONTROL WITH THE COMPANY.
(B)
NON-COMPETITION.
IN CONSIDERATION OF THIS AGREEMENT, AND FOR
OTHER GOOD AND VALUABLE CONSIDERATION PROVIDED HEREUNDER, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY EXECUTIVE, EXECUTIVE HEREBY
AGREES AND COVENANTS THAT, DURING EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND
FOR A PERIOD OF (12) TWELVE MONTHS THEREAFTER, EXECUTIVE SHALL NOT, WITHOUT THE
PRIOR WRITTEN CONSENT OF THE COMPANY, DIRECTLY OR INDIRECTLY, ENGAGE IN OR
BECOME ASSOCIATED WITH A COMPETITIVE ACTIVITY.
FOR PURPOSES OF THIS
SECTION 2(B),
(I) A "COMPETITIVE ACTIVITY" MEANS ANY BUSINESS OR OTHER ENDEAVOR
INVOLVING PRODUCTS OR SERVICES THAT ARE THE SAME OR SIMILAR TO PRODUCTS OR
SERVICES (THE "COMPANY PRODUCTS OR SERVICES") THAT ANY BUSINESS OF THE COMPANY
IS ENGAGED IN PROVIDING AS OF THE DATE HEREOF OR AT ANY TIME DURING THE TERM,
PROVIDED SUCH BUSINESS OR ENDEAVOR IS IN THE UNITED STATES, OR IN ANY FOREIGN
JURISDICTION IN WHICH THE COMPANY PROVIDES, OR HAS PROVIDED DURING THE TERM, THE
RELEVANT COMPANY PRODUCTS OR SERVICES, AND (II) EXECUTIVE SHALL BE CONSIDERED TO
HAVE BECOME "ASSOCIATED WITH A COMPETITIVE ACTIVITY" IF EXECUTIVE BECOMES
DIRECTLY OR INDIRECTLY INVOLVED AS AN OWNER, PRINCIPAL, EMPLOYEE, OFFICER,
DIRECTOR, INDEPENDENT CONTRACTOR, REPRESENTATIVE, STOCKHOLDER, FINANCIAL BACKER,
AGENT, PARTNER, MEMBER, ADVISOR, LENDER, CONSULTANT OR IN ANY OTHER INDIVIDUAL
OR REPRESENTATIVE CAPACITY WITH ANY INDIVIDUAL, PARTNERSHIP, CORPORATION OR
OTHER ORGANIZATION THAT IS ENGAGED IN A COMPETITIVE ACTIVITY.
NOTWITHSTANDING
ANYTHING ELSE IN