UNLESS EXECUTIVE SHALL
APPROVE THEREOF;
(IV)
THE COMPANY COMMITS A MATERIAL BREACH OF THIS
AGREEMENT OR PURPORTS TO ATTEMPT TO TERMINATE IT FOR CAUSE WITHOUT THE RIGHT TO
DO SO; AND
(V)
THE FAILURE TO PROVIDE TO EXECUTIVE ANY
APPLICABLE EMPLOYEE BENEFIT OR ANY INDEMNIFICATION PROTECTION PROVIDED TO OTHER
SENIOR EXECUTIVE OFFICERS OF THE COMPANY, UNLESS EXECUTIVE SHALL APPROVE
THEREOF.
(H)
FOR PURPOSES OF THIS AGREEMENT, "CHANGE IN
CONTROL" SHALL HAVE THE SAME MEANING AS IS SET FORTH IN THE 2008 PLAN, BUT IF
THE COMPANY'S STOCKHOLDERS DO NOT APPROVE THE 2008 PLAN AT THE 2008 MEETING,
THEN "CHANGE IN CONTROL" SHALL HAVE THE SAME MEANING AS SET FORTH IN THE 1997
PLAN.
5.
CONFIDENTIAL INFORMATION.
EXECUTIVE
ACKNOWLEDGES THAT THE INFORMATION, OBSERVATIONS AND DATA OBTAINED BY HER PRIOR
TO THE DATE OF THIS AGREEMENT AND HEREAFTER WHILE EMPLOYED BY THE COMPANY
CONCERNING THE BUSINESS OR AFFAIRS OF THE COMPANY AND ITS SUBSIDIARIES
("CONFIDENTIAL INFORMATION") ARE THE PROPERTY OF THE COMPANY AND ITS
SUBSIDIARIES.
THEREFORE, EXECUTIVE AGREES THAT SHE SHALL NOT DISCLOSE TO ANY
UNAUTHORIZED PERSON OR USE FOR HER OWN PURPOSES ANY CONFIDENTIAL INFORMATION
WITHOUT THE PRIOR WRITTEN CONSENT OF THE BOARD, UNLESS AND TO THE EXTENT THAT
THE AFOREMENTIONED MATTERS BECOME GENERALLY KNOWN TO AND AVAILABLE FOR USE BY
THE PUBLIC OTHER THAN AS A RESULT OF EXECUTIVE'S ACTS OR OMISSIONS.
EXECUTIVE
SHALL DELIVER TO THE COMPANY AT THE TERMINATION OF THE EMPLOYMENT PERIOD, OR AT
ANY OTHER TIME THE COMPANY MAY REQUEST, ALL MEMORANDA, NOTES, PLANS, RECORDS,
REPORTS, COMPUTER TAPES, PRINTOUTS AND SOFTWARE AND OTHER DOCUMENTS AND DATA
(AND COPIES THEREOF) RELATING TO THE CONFIDENTIAL INFORMATION OR THE BUSINESS OF
THE COMPANY OR ANY SUBSIDIARY WHICH SHE MAY THEN POSSESS OR HAVE UNDER HER
CONTROL.
5
6.
NON-COMPETE, NON-SOLICITATION.
(A)
IN FURTHER CONSIDERATION OF THE
COMPENSATION TO BE PAID TO EXECUTIVE HEREUNDER, EXECUTIVE ACKNOWLEDGES THAT IN
THE COURSE OF HER EMPLOYMENT WITH THE COMPANY SHE HAS BECOME AND WILL CONTINUE
TO BE FAMILIAR WITH THE COMPANY'S AND ITS SUBSIDIARIES' TRADE SECRETS AND WITH
OTHER CONFIDENTIAL INFORMATION AND THAT HER SERVICES HAVE BEEN AND SHALL BE OF
SPECIAL, UNIQUE AND EXTRAORDINARY VALUE TO THE COMPANY AND ITS SUBSIDIARIES.
THEREFORE, EXECUTIVE AGREES THAT, DURING THE EMPLOYMENT PERIOD AND FOR EIGHTEEN
(18) MONTHS THEREAFTER (THE "NONCOMPETE PERIOD"), SHE SHALL NOT DIRECTLY OR
INDIRECTLY OWN ANY INTEREST IN, MANAGE, CONTROL, PARTICIPATE IN, CONSULT WITH,
RENDER SERVICES FOR, OR IN ANY MANNER ENGAGE IN ANY BUSINESS COMPETING WITH THE
BUSINESSES OF THE COMPANY OR ITS SUBSIDIARIES, AS SUCH BUSINESSES EXIST OR ARE
IN PROCESS ON THE DATE OF THE TERMINATION OF EXECUTIVE'S EMPLOYMENT, WITHIN ANY
GEOGRAPHICAL AREA IN WHICH THE COMPANY OR ITS SUBSIDIARIES ENGAGE OR PLAN TO
ENGAGE IN SUCH BUSINESSES.
NOTHING HEREIN SHALL PROHIBIT EXECUTIVE FROM BEING A
PASSIVE OWNER OR NOT MORE THAN 2% OF THE OUTSTANDING STOCK OF ANY CLASS OF A
CORPORATION WHICH IS PUBLICLY TRADED, SO LONG AS EXECUTIVE HAS NO ACTIVE
PARTICIPATION IN THE BUSINESS OF SUCH CORPORATION.
(B)
DURING THE NONCOMPETE PERIOD, EXECUTIVE
SHALL