UNDER SECTION 4999 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR
ANY SIMILAR TAX THAT MAY HEREAFTER BE IMPOSED (THE "EXCISE TAX"), AND (II) IT
WOULD BE ECONOMICALLY ADVANTAGEOUS TO THE EXECUTIVE TO REDUCE SUCH COVERED
PAYMENTS TO AVOID IMPOSITION OF THE EXCISE TAX, THE COVERED PAYMENTS SHALL BE
REDUCED TO AN AMOUNT WHICH MAXIMIZES THE AGGREGATE PRESENT VALUE (AS DETERMINED
IN ACCORDANCE WITH SECTION 280G(D)(4) OF THE CODE OR ANY SUCCESSOR PROVISION OF
THE CODE) OF THE COVERED PAYMENTS WITHOUT CAUSING THE COVERED PAYMENTS TO BE
SUBJECT TO THE EXCISE TAX.
THE REDUCTION DESCRIBED IN THIS SECTION 6(I) SHALL
ONLY BE MADE IF THE NET AFTER-TAX AMOUNT TO BE RECEIVED BY THE EXECUTIVE AFTER
GIVING EFFECT TO THE REDUCTION WILL BE GREATER THAN THE NET AFTER-TAX AMOUNT
THAT WOULD BE RECEIVED BY THE EXECUTIVE WITHOUT THE REDUCTION.
THE EXECUTIVE
SHALL IN HIS SOLE DISCRETION DETERMINE WHICH AND HOW MUCH OF THE COVERED
PAYMENTS SHALL BE ELIMINATED OR REDUCED CONSISTENT WITH THE REQUIREMENTS OF THIS
SECTION 6(I).
5
(J)
SURVIVAL OF OPERATIVE SECTIONS.
UPON ANY TERMINATION OF THE
EXECUTIVE'S EMPLOYMENT, THE PROVISIONS OF SECTION 6(F) THROUGH SECTION 6(I), AND
SECTION 7 THROUGH SECTION 17 OF THIS AGREEMENT SHALL SURVIVE TO THE EXTENT
NECESSARY TO GIVE EFFECT TO THE PROVISIONS THEREOF.
SECTION 7.
RESTRICTIVE COVENANTS.
THE EXECUTIVE ACKNOWLEDGES AND
AGREES THAT THE AGREEMENTS AND COVENANTS CONTAINED IN THIS SECTION 7 ARE (I)
REASONABLE AND VALID IN GEOGRAPHICAL AND TEMPORAL SCOPE AND IN ALL OTHER
RESPECTS, AND (II) ESSENTIAL TO PROTECT THE VALUE OF THE COMPANY'S BUSINESS AND
ASSETS AND BY HIS EMPLOYMENT WITH THE COMPANY, AND THAT THE EXECUTIVE WILL
OBTAIN KNOWLEDGE, CONTACTS, KNOW-HOW, TRAINING AND EXPERIENCE AND THERE IS A
SUBSTANTIAL PROBABILITY THAT SUCH KNOWLEDGE, KNOW-HOW, CONTACTS, TRAINING AND
EXPERIENCE COULD BE USED TO THE SUBSTANTIAL ADVANTAGE OF A COMPETITOR OF THE
COMPANY AND TO THE COMPANY'S SUBSTANTIAL DETRIMENT.
FOR PURPOSES OF THIS
SECTION 7, REFERENCES TO THE COMPANY SHALL BE DEEMED TO INCLUDE HOLDINGS.
(A)
CONFIDENTIAL INFORMATION.
AT ANY TIME DURING AND AFTER THE END OF
THE EMPLOYMENT TERM, WITHOUT THE PRIOR WRITTEN CONSENT OF THE BOARD, EXCEPT TO
THE EXTENT REQUIRED BY AN ORDER OF A COURT HAVING JURISDICTION OR UNDER SUBPOENA
FROM AN APPROPRIATE GOVERNMENT AGENCY, IN WHICH EVENT, THE EXECUTIVE SHALL USE
HIS BEST EFFORTS TO CONSULT WITH THE BOARD PRIOR TO RESPONDING TO ANY SUCH ORDER
OR SUBPOENA, AND EXCEPT AS REQUIRED IN THE PERFORMANCE OF HIS DUTIES HEREUNDER,
THE EXECUTIVE SHALL NOT DISCLOSE ANY CONFIDENTIAL OR PROPRIETARY TRADE SECRETS,
CUSTOMER LISTS, DRAWINGS, DESIGNS, INFORMATION REGARDING PRODUCT DEVELOPMENT,
MARKETING PLANS, SALES PLANS, MANUFACTURING PLANS, MANAGEMENT ORGANIZATION
INFORMATION, OPERATING POLICIES OR MANUALS, BUSINESS PLANS, FINANCIAL RECORDS,
PACKAGING DESIGN OR OTHER FINANCIAL, COMMERCIAL, BUSINESS OR TECHNICAL
INFORMATION (I) RELATING TO THE COMPANY, OR (II) THAT THE COMPANY OR ANY OF ITS
AFFILIATES MAY RECEIVE BELONGING TO SUPPLIERS, CUSTOMERS OR OTHERS WHO DO
BUSINESS WITH THE COMPANY ("CONFIDENTIAL INFORMATION").
EXECUTIVE'S OBLIGATION
UNDER THIS SECTION 7(A) SHALL NOT APPLY TO ANY INFORMATION WHICH (I) IS KNOWN