SUCH RESTRICTIONS, THE COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. THE
EXECUTIVE FURTHER AGREES THAT THE RESTRICTIONS CONTAINED IN THIS SECTION 5.1
CONSTITUTE ENTIRELY SEPARATE, SEVERABLE AND INDEPENDENT RESTRICTIONS.
(J)
IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT ALTHOUGH EXECUTIVE AND THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN
THIS SECTION 5.1 TO BE REASONABLE, IF A FINAL JUDICIAL DETERMINATION IS MADE BY
A COURT OF COMPETENT JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER
RESTRICTION CONTAINED IN THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST
EXECUTIVE, THE PROVISIONS OF THIS AGREEMENT SHALL NOT BE RENDERED VOID BUT SHALL
BE DEEMED AMENDED TO APPLY AS TO SUCH MAXIMUM TIME AND TERRITORY AND TO SUCH
MAXIMUM EXTENT AS SUCH COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE
ENFORCEABLE.
ALTERNATIVELY, IF ANY COURT OF COMPETENT JURISDICTION FINDS THAT
ANY RESTRICTION CONTAINED IN THIS AGREEMENT IS UNENFORCEABLE, AND SUCH
RESTRICTION CANNOT BE AMENDED SO AS TO MAKE IT ENFORCEABLE, SUCH FINDING SHALL
NOT AFFECT THE ENFORCEABILITY OF ANY OF THE OTHER RESTRICTIONS CONTAINED HEREIN.
5.2.
CONFIDENTIALITY.
(A)
EXECUTIVE WILL NOT AT ANY TIME (WHETHER
DURING OR AFTER EXECUTIVE'S EMPLOYMENT WITH THE COMPANY) (X) RETAIN OR USE FOR
THE BENEFIT, PURPOSES OR ACCOUNT OF EXECUTIVE OR ANY OTHER PERSON; OR
(Y) DISCLOSE, DIVULGE, REVEAL, COMMUNICATE, SHARE, TRANSFER OR PROVIDE ACCESS TO
ANY PERSON OUTSIDE THE COMPANY (OTHER THAN ITS PROFESSIONAL ADVISERS WHO ARE
BOUND BY CONFIDENTIALITY OBLIGATIONS), ANY NON-PUBLIC, PROPRIETARY OR
CONFIDENTIAL INFORMATION (INCLUDING WITHOUT LIMITATION TRADE SECRETS, KNOW-HOW,
RESEARCH AND DEVELOPMENT, SOFTWARE, DATABASES, INVENTIONS, PROCESSES, FORMULAE,
TECHNOLOGY, DESIGNS AND OTHER INTELLECTUAL PROPERTY, INFORMATION CONCERNING
FINANCES, INVESTMENTS, PROFITS, PRICING, COSTS, PRODUCTS, SERVICES, VENDORS,
CUSTOMERS, CLIENTS, PARTNERS, INVESTORS, PERSONNEL, COMPENSATION, RECRUITING,
TRAINING, ADVERTISING, SALES, MARKETING, PROMOTIONS, GOVERNMENT AND REGULATORY
ACTIVITIES AND APPROVALS) CONCERNING THE PAST, CURRENT OR FUTURE BUSINESS,
ACTIVITIES AND OPERATIONS OF THE COMPANY OR ITS AFFILIATES AND/OR ANY THIRD
PARTY THAT HAS DISCLOSED OR PROVIDED ANY OF SAME TO THE COMPANY ON A
CONFIDENTIAL BASIS ("CONFIDENTIAL INFORMATION") WITHOUT THE PRIOR WRITTEN
AUTHORIZATION OF THE BOARD.
(B)
"CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE
ANY INFORMATION THAT IS (I) GENERALLY KNOWN TO THE INDUSTRY OR THE PUBLIC OTHER
THAN AS A RESULT OF EXECUTIVE'S BREACH OF THIS COVENANT OR ANY BREACH OF OTHER
CONFIDENTIALITY OBLIGATIONS BY THIRD PARTIES; (II) MADE LEGITIMATELY AVAILABLE
TO EXECUTIVE BY A THIRD PARTY WITHOUT BREACH OF ANY CONFIDENTIALITY OBLIGATION;
OR (III) REQUIRED BY LAW TO BE DISCLOSED; PROVIDED THAT EXECUTIVE SHALL GIVE
PROMPT WRITTEN NOTICE TO THE
11
COMPANY OF SUCH REQUIREMENT, DISCLOSE NO MORE INFORMATION THAN IS SO REQUIRED,
AND COOPERATE, AT THE COMPANY'S COST, WITH ANY ATTEMPTS BY THE COMPANY TO OBTAIN
A PROTECTIVE ORDER OR SIMILAR TREATMENT.
(C)
EXCEPT AS REQUIRED BY LAW, EXECUTIVE WILL NOT DISCLOSE TO ANYONE,
OTHER THAN EXECUTIVE'S IMMEDIATE FAMILY AND LEGAL OR FINANCIAL ADVISORS, THE
EXISTENCE OR CONTENTS OF THIS AGREEMENT (UNLESS THIS AGREEMENT SHALL BE PUBLICLY
AVAILABLE AS A RESULT OF A REGULATORY FILING MADE BY THE COMPANY OR ITS
AFFILIATES); PROVIDED THAT EXECUTIVE MAY DISCLOSE TO ANY PROSPECTIVE FUTURE
EMPLOYER THE