COMMON
STOCK GRANTED TO CONSULTANT IN CONNECTION WITH HIS EMPLOYMENT BY THE COMPANY),
THE VESTING OF WHICH SHALL BE ON THE SAME SCHEDULE AS CONSULTANT HAD PRIOR TO
TERMINATION OF EMPLOYMENT BUT SUBJECT TO THE CONTINUING PERFORMANCE BY
CONSULTANT OF SERVICES TO THE COMPANY AS SET FORTH IN THIS AGREEMENT DURING SUCH
VESTING SCHEDULE, (II) THE PARTICIPATION BY CONSULTANT IN THE COMPANY'S STOCK
OPTION RESTORATION PROGRAM FOR 2005, AND (III) THAT CONSULTANT'S TERMINATION OF
EMPLOYMENT SHALL BE CONSIDERED TO BE AN "EARLY RETIREMENT" (FOR SUCH OPTIONS AS
SUCH CONCEPT IS RELEVANT)
FOR PURPOSES OF ALL OUTSTANDING OPTIONS HELD BY HIM
PRIOR TO HIS TERMINATION.
THE PARTIES ACKNOWLEDGE THAT, UPON THE EFFECTIVE
DATE, CONSULTANT IS FULLY VESTED IN HIS ACCOUNT COMPANY'S SUPPLEMENTAL EXECUTIVE
RETIREMENT PLAN (THE "SERP") AND IS ENTITLED TO RECEIVE THE DISTRIBUTION OF THE
ACCRUED BALANCE OF $2,595,239.66 IN SUCH ACCOUNT IN ACCORDANCE WITH ALL
AVAILABLE ELECTIONS, AS PROVIDED IN THE SERP.
5.
CONFIDENTIAL INFORMATION.
(A)
AS USED HEREIN, "CONFIDENTIAL INFORMATION"
MEANS ALL CONFIDENTIAL OR PROPRIETARY INFORMATION, WHETHER ORAL OR WRITTEN, NOW
OR HEREAFTER DEVELOPED, ACQUIRED OR USED BY THE COMPANY AND RELATING TO THE
COMPANY'S BUSINESS, OR THAT OF ITS AFFILIATES, THAT IS NOT GENERALLY KNOWN TO
OTHERS IN THE COMPANY'S AREA OF BUSINESS, INCLUDING, WITHOUT LIMITATION (TO THE
EXTENT CONFIDENTIAL): (1) ANY TRADE SECRETS, WORK PRODUCT, PROCESSES, ANALYSES,
KNOW-HOW OR OTHER INTELLECTUAL PROPERTY OF THE COMPANY; (2) THE COMPANY'S
ADVERTISING, PRODUCT DEVELOPMENT, STRATEGIC AND BUSINESS PLANS AND INFORMATION;
(3) THE PRICES AT WHICH THE COMPANY HAS SOLD OR OFFERED TO SELL ITS PRODUCTS OR
SERVICES; AND (4) THE COMPANY'S FINANCIAL STATEMENTS AND OTHER FINANCIAL
INFORMATION.
(B)
IN THE COURSE OF PERFORMING SERVICES FOR THE
COMPANY PRIOR TO THE DATE HEREOF AS AN EMPLOYEE OF THE COMPANY AND SUBSEQUENT TO
THE DATE HEREOF UNDER THIS AGREEMENT, CONSULTANT HAS RECEIVED OR MAY RECEIVE OR
HAVE ACCESS TO COMMERCIALLY VALUABLE CONFIDENTIAL INFORMATION.
CONSULTANT
ACKNOWLEDGES AND AGREES THAT THE CONFIDENTIAL INFORMATION (TO THE EXTENT IT CAN
BE OWNED) IS AND WILL BE THE COMPANY'S SOLE AND EXCLUSIVE PROPERTY.
CONSULTANT
WILL NOT USE ANY CONFIDENTIAL INFORMATION FOR HIS OWN BENEFIT OR DISCLOSE ANY
CONFIDENTIAL INFORMATION TO ANY THIRD PARTY (EXCEPT IN THE COURSE OF PERFORMING
THE SERVICES UNDER THIS AGREEMENT), EITHER DURING OR SUBSEQUENT TO THE TERM OF
THIS AGREEMENT.
AT THE EARLIER OF THE TERMINATION OF THIS AGREEMENT OR THE
COMPANY'S REQUEST, CONSULTANT WILL PROMPTLY DELIVER TO THE COMPANY ALL
DOCUMENTS, COMPUTER DISKS AND OTHER COMPUTER STORAGE DEVICES, AND OTHER PAPERS
AND MATERIALS (INCLUDING ALL COPIES THEREOF IN WHATEVER FORM) CONTAINING OR
INCORPORATING ANY CONFIDENTIAL INFORMATION OR OTHERWISE RELATING TO IN ANY WAY
TO THE COMPANY'S BUSINESS, OR THAT OF ITS AFFILIATES, THAT ARE IN HIS POSSESSION
OR UNDER HIS CONTROL.
IT IS UNDERSTOOD
4
AND AGREED THAT THE CONFIDENTIALITY AGREEMENT DATED MARCH 2, 1998 WILL CONTINUE
TO BE BINDING UPON THE CONSULTANT IN ACCORDANCE WITH ITS TERMS, AND THAT THE
CHANGE OF CONTROL AGREEMENT DATED DECEMBER 14, 2001 BY AND BETWEEN THE COMPANY
AND CONSULTANT IS TERMINATED; PROVIDED, HOWEVER,