PAYMENTS MAY BE MADE UNDER THIS AGREEMENT BEFORE THE DATE THAT IS SIX MONTHS
AFTER THE TERMINATION (OR, IF EARLIER, THE DATE OF DEATH OF THE SPECIFIED
EMPLOYEE). IN SUCH CASE, ALL PAYMENTS TO WHICH YOU ARE ENTITLED DURING THE FIRST
SIX MONTHS SHALL BE ACCUMULATED AND PAID ON THE FIRST DATE OF THE SEVENTH MONTH
FOLLOWING TERMINATION.
(H)
IF IT IS DETERMINED THAT ANY PAYMENTS HEREUNDER, EITHER SEPARATELY
OR IN CONJUNCTION WITH ANY OTHER PAYMENTS, BENEFITS AND ENTITLEMENTS RECEIVED BY
YOU HEREUNDER, WOULD CONSTITUTE AN "EXCESS PARACHUTE PAYMENT" WITHIN THE MEANING
OF SECTION 280G OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
AND THEREBY BE SUBJECT TO THE EXCISE TAX IMPOSED BY SECTION 4999 OF THE CODE
(THE "EXCISE TAX"), THEN IN SUCH EVENT, THE COMPANY SHALL BE OBLIGATED TO PAY TO
YOU PROMPTLY FOLLOWING SUCH DETERMINATION AND UPON NOTICE THEREOF A "GROSS-UP"
PAYMENT IN AN AMOUNT EQUAL TO THE AMOUNT OF SUCH EXCISE TAX, PLUS ALL FEDERAL
AND STATE INCOME OR OTHER TAXES WITH RESPECT TO THE PAYMENT OF THE AMOUNT OF
SUCH EXCISE TAX, INCLUDING ALL SUCH TAXES (INCLUDING ANY ADDITIONAL EXCISE TAX)
WITH RESPECT TO ANY SUCH GROSS-UP PAYMENT.
5.
CONFIDENTIAL INFORMATION.
(A)
OBLIGATION TO MAINTAIN CONFIDENTIALITY. YOU ACKNOWLEDGE 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 EXISTING PRIOR HERETO, 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 YOU DURING THE
COURSE OF YOUR 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 IT SUBSIDIARIES'
BUSINESS OR INDUSTRY OF WHICH YOU BECOME AWARE DURING YOUR EMPLOYMENT, THE
PERSONS OR ENTITIES THAT ARE CURRENT, FORMER OR PROSPECTIVE SUPPLIERS OR
CUSTOMERS OF ANY ONE OR MORE OF THEM DURING YOUR 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, YOU AGREE THAT YOU SHALL NOT DISCLOSE
TO ANY UNAUTHORIZED PERSON OR USE FOR YOUR OWN ACCOUNT ANY OF SUCH CONFIDENTIAL
INFORMATION
6
without both Board's prior written consent, unless and to the extent that any
Confidential Information (i) becomes generally