REGULATIONS PROMULGATED UNDER SECTION 409A, TO MAKE USE OF
ANY EXEMPTIONS AVAILABLE UNDER SECTION 409A, INCLUDING THE SHORT-TERM DEFERRAL
EXEMPTION (WHICH MAY REQUIRE THE ACCELERATION OF CERTAIN CASH TERMINATION
BENEFITS), THE SEPARATION PAY EXEMPTION, AND THE LIMITED PAYMENT EXEMPTION.
3.7.
TERMINATION OBLIGATIONS.
(A)
EXECUTIVE HEREBY ACKNOWLEDGES AND AGREES
THAT ALL COMPANY PROPERTY AND MATERIALS FURNISHED OR MADE AVAILABLE TO OR
ACQUIRED BY EXECUTIVE IN THE COURSE OF OR INCIDENT TO EXECUTIVE'S EMPLOYMENT,
BELONG TO THE COMPANY AND SHALL BE PROMPTLY RETURNED TO THE COMPANY UPON
TERMINATION OF EXECUTIVE'S EMPLOYMENT FOR WHATEVER REASON. "COMPANY PROPERTY AND
MATERIALS" FOR SUCH PURPOSE INCLUDES (I) ALL ELECTRONIC DEVICES OWNED, LEASED,
OR MADE AVAILABLE BY THE COMPANY FOR EXECUTIVE'S USE, INCLUDING PERSONAL
COMPUTERS, FAX MACHINES, CELLULAR TELEPHONES, PAGERS, AND TAPE RECORDERS, AND
(II) ALL BOOKS, MANUALS, RECORDS, REPORTS, NOTES, CONTRACTS, LISTS, BLUEPRINTS,
MAPS AND OTHER DOCUMENTS, OR MATERIALS, OR COPIES THEREOF (INCLUDING COMPUTER
FILES) BELONGING TO, AND ALL OTHER PROPRIETARY INFORMATION RELATING TO THE
BUSINESS OF, THE COMPANY. FOLLOWING TERMINATION, EXECUTIVE WILL NOT RETAIN ANY
WRITTEN OR OTHER TANGIBLE MATERIAL CONTAINING ANY PROPRIETARY INFORMATION OF THE
COMPANY AND, UPON REQUEST, WILL CONFIRM EXECUTIVE'S COMPLIANCE WITH THIS
SUBSECTION IN WRITING.
(B)
EXECUTIVE'S OBLIGATIONS UNDER THIS
SECTION 3.7 AND SECTION 4 SHALL SURVIVE TERMINATION OF EXECUTIVE'S EMPLOYMENT
AND THE EXPIRATION OF THIS AGREEMENT.
(C)
UPON TERMINATION OF EXECUTIVE'S EMPLOYMENT,
EXECUTIVE WILL BE DEEMED TO HAVE RESIGNED FROM ALL OFFICES AND DIRECTORSHIPS
THEN HELD WITH THE COMPANY OR ANY OF ITS AFFILIATES.
3.8.
NO DUTY TO MITIGATE. NO AMOUNT DUE TO
EXECUTIVE UNDER THIS AGREEMENT BY VIRTUE OF THE TERMINATION OF EXECUTIVE'S
EMPLOYMENT (OTHER THAN PAYMENTS TO BE PROVIDED IN RESPECT OF HEALTH BENEFITS TO
THE EXTENT THAT EXECUTIVE IS ENTITLED TO SIMILAR BENEFITS BY VIRTUE OF NEW
EMPLOYMENT) SHALL BE REDUCED BY OR ON ACCOUNT OF ANY COMPENSATION RECEIVED BY
EXECUTIVE AS THE RESULT OF EMPLOYMENT BY ANOTHER EMPLOYER.
SECTION 4.
RESTRICTIVE COVENANTS
4.1.
CONFIDENTIALITY. IN THE PERFORMANCE OF
EXECUTIVE'S DUTIES HEREUNDER EXECUTIVE SHALL ABIDE BY AND BE BOUND BY THE
COMPANY'S CODE OF CONDUCT, INCLUDING THE CONFIDENTIALITY AND NONSOLICITATION
RESTRICTIONS SET FORTH THEREIN. IN ADDITION AND NOT IN LIEU OR IN
6
SUBSTITUTION THEREFOR, EXECUTIVE SHALL NOT, DURING EXECUTIVE'S EMPLOYMENT OR AT
ANY TIME THEREAFTER, DIRECTLY OR INDIRECTLY, DISCLOSE OR MAKE AVAILABLE TO ANY
PERSON FOR ANY REASON OR PURPOSE WHATSOEVER, ANY CONFIDENTIAL INFORMATION (AS
DEFINED BELOW). EXECUTIVE AGREES THAT, UPON TERMINATION OF EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, ALL CONFIDENTIAL INFORMATION IN EXECUTIVE'S
POSSESSION THAT IS IN WRITTEN OR OTHER TANGIBLE FORM (TOGETHER WITH ALL COPIES
OR DUPLICATES THEREOF, INCLUDING COMPUTER FILES), WHETHER OR NOT OTHERWISE
INCLUDED AMONG THE PERSONAL PROPERTY REQUIRED TO BE RETURNED PURSUANT TO
SECTION 3.7(A), SHALL BE RETURNED TO THE COMPANY AND SHALL NOT BE RETAINED BY
EXECUTIVE OR FURNISHED OR DISCLOSED TO ANY THIRD PARTY IN ANY FORM EXCEPT AS
PROVIDED HEREIN; PROVIDED, HOWEVER, THAT EXECUTIVE SHALL NOT BE OBLIGATED TO
TREAT AS CONFIDENTIAL ANY INFORMATION THAT (I) WAS PUBLICLY KNOWN AT THE TIME OF
DISCLOSURE TO EXECUTIVE, (II) BECOMES