the limitations imposed under Code Section 162(m) as
performance-based compensation on grant within the meaning of Code Section
162(m) and the regulations promulgated thereunder. The Company hereby further
agrees and acknowledges that all shares of stock issued to Executive have been
or will be registered under the Securities Act of 1933, as amended (the
"Securities Act"). The Company further agrees to use all best efforts to deliver
to Executive as soon as is practicable, certificates
5
registered in Executive's name evidencing all previously unvested shares, which
stock certificates shall contain no restrictive legend except as may be required
under the Securities Act.
7.
SPECIFIED EMPLOYEE DETERMINATION.
NOTWITHSTANDING ANY
PROVISION HEREIN TO THE CONTRARY, IN THE EVENT THAT EXECUTIVE IS DETERMINED TO
BE A SPECIFIED EMPLOYEE WITHIN THE MEANING OF CODE SECTION 409A UNDER THE
DEFAULT PROVISIONS ESTABLISHED THEREUNDER, FOR PURPOSES OF ANY PAYMENT ON
TERMINATION OF EMPLOYMENT UNDER THIS AGREEMENT, PAYMENT(S) SHALL BE MADE OR
BEGIN, AS APPLICABLE, ON THE FIRST PAYROLL DATE WHICH IS MORE THAN SIX MONTHS
FOLLOWING THE DATE OF SEPARATION FROM SERVICE (OR, IF EARLIER, UPON EXECUTIVE'S
DEATH), TO THE EXTENT REQUIRED TO AVOID ANY ADVERSE TAX CONSEQUENCES UNDER CODE
SECTION 409A.
8.
CONFIDENTIALITY/SETTLEMENT OF EXISTING RIGHTS.
(A)
IN ORDER TO INDUCE EXECUTIVE TO ENTER INTO THIS AGREEMENT,
AND IN ORDER TO ENABLE EXECUTIVE TO PROVIDE SERVICES ON BEHALF OF THE COMPANY,
DURING THE TERM OF THIS AGREEMENT, THE COMPANY WILL PROVIDE EXECUTIVE WITH
ACCESS TO CERTAIN TRADE SECRETS AND CONFIDENTIAL OR PROPRIETARY INFORMATION
BELONGING TO THE COMPANY, WHICH MAY INCLUDE, BUT IS NOT LIMITED TO, THE
IDENTITIES, CUSTOMS, AND PREFERENCES OF THE COMPANY'S EXISTING AND PROSPECTIVE
CLIENTS, CUSTOMERS, TENANTS OR VENDORS; THE IDENTITIES AND SKILLS OF THE
COMPANY'S EMPLOYEES; THE COMPANY'S METHODS, PROCEDURES, ANALYTICAL TECHNIQUES,
AND MODELS USED IN PROVIDING PRODUCTS AND SERVICES, AND IN PRICING OR ESTIMATING
THE COST OF SUCH PRODUCTS AND SERVICES; THE COMPANY'S FINANCIAL DATA, BUSINESS
AND MARKETING PLANS, PROJECTIONS AND STRATEGIES; CUSTOMER LISTS AND DATA; TENANT
LISTS AND DATA, VENDOR LISTS AND DATA; TRAINING MANUALS, POLICY MANUALS, AND
QUALITY CONTROL MANUALS; SOFTWARE PROGRAMS AND INFORMATION SYSTEMS; AND OTHER
INFORMATION RELATING TO THE DEVELOPMENT, MARKETING, AND PROVISION OF THE
COMPANY'S PRODUCTS, SERVICES, AND SYSTEMS (I.E., "CONFIDENTIAL INFORMATION").
EXECUTIVE ACKNOWLEDGES THAT THIS CONFIDENTIAL INFORMATION CONSTITUTES VALUABLE,
SPECIAL AND UNIQUE PROPERTY OF THE COMPANY.
(B)
EXECUTIVE AGREES THAT, EXCEPT AS MAY BE NECESSARY IN THE
ORDINARY COURSE OF PERFORMING HIS DUTIES UNDER THIS AGREEMENT, EXECUTIVE SHALL
NOT, WITHOUT PRIOR EXPRESS WRITTEN CONSENT OF THE COMPANY (I) USE SUCH
CONFIDENTIAL INFORMATION FOR EXECUTIVE'S OWN BENEFIT OR FOR THE BENEFIT OF
ANOTHER; OR (II) DISCLOSE, DIRECTLY OR INDIRECTLY, SUCH CONFIDENTIAL INFORMATION
TO ANY PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, OR OTHER ENTITY
(EXCEPT FOR AUTHORIZED PERSONNEL OF THE COMPANY) AT ANY TIME PRIOR OR SUBSEQUENT
TO THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
(C)
BY THIS AGREEMENT, THE COMPANY IS PROVIDING EXECUTIVE WITH
RIGHTS THAT EXECUTIVE DID NOT PREVIOUSLY HAVE. IN EXCHANGE FOR THE FOREGOING AND
THE ADDITIONAL TERMS AGREED TO IN THIS AGREEMENT, EXECUTIVE