HAD
MATERIAL CONTACT ON THE COMPANY'S BEHALF DURING THE 12 MONTHS IMMEDIATELY
PRECEDING THE PARTICIPANT'S TERMINATION OF EMPLOYMENT;
VI.
THE SOLICITATION OR RECRUITMENT, ATTEMPT TO SOLICIT OR RECRUIT, OR
THE ASSISTANCE OF OTHERS IN SOLICITING OR RECRUITING, ANY INDIVIDUAL WHO IS OR
WAS, WITHIN 6 MONTHS OF THE DATE IN QUESTION, AN EMPLOYEE OF THE COMPANY UNLESS
SUCH FORMER EMPLOYEE WAS TERMINATED BY THE COMPANY WITHOUT CAUSE, OR THE
INDUCEMENT OF (OR ATTEMPT TO INDUCE) ANY SUCH EMPLOYEE OF THE COMPANY TO
TERMINATE HIS EMPLOYMENT WITH THE COMPANY; OR
VII.
THE REFUSAL OR FAILURE OF THE PARTICIPANT TO PROVIDE, UPON THE
REQUEST OF THE COMPANY, A CERTIFICATION, IN A FORM SATISFACTORY TO THE COMPANY,
THAT HE OR SHE IS IN FULL COMPLIANCE WITH THE TERMS AND CONDITIONS OF THE PLAN
AND THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, A CERTIFICATION THAT THE
PARTICIPANT IS NOT ENGAGING IN DETRIMENTAL ACTIVITY.
C.
"TRADE SECRET" MEANS INFORMATION, INCLUDING, BUT NOT LIMITED TO,
TECHNICAL OR NON-TECHNICAL DATA, A FORMULA, A PATTERN, A COMPILATION, A PROGRAM,
A DEVICE, A METHOD, A TECHNIQUE, A DRAWING, A PROCESS, FINANCIAL DATA, FINANCIAL
PLANS, PRODUCT PLANS, OR A LIST OF ACTUAL OR POTENTIAL COMPANY CUSTOMERS OR
SUPPLIERS WHICH (I) DERIVES INDEPENDENT ECONOMIC VALUE, ACTUAL OR POTENTIAL,
FROM NOT BEING GENERALLY KNOWN TO, AND NOT BEING READILY ASCERTAINABLE BY PROPER
MEANS BY, OTHER PERSONS WHO CAN OBTAIN ECONOMIC VALUE FROM ITS DISCLOSURE OR
USE, AND (II) IS THE SUBJECT OF THE COMPANY'S EFFORTS THAT ARE REASONABLE UNDER
THE CIRCUMSTANCES TO MAINTAIN SECRECY; OR AS OTHERWISE DEFINED BY APPLICABLE
STATE LAW.
D.
"CONFIDENTIAL INFORMATION" MEANS ANY AND ALL KNOWLEDGE,
INFORMATION, DATA, METHODS OR PLANS (OTHER THAN TRADE SECRETS) WHICH ARE NOW OR
AT ANY TIME IN THE FUTURE DEVELOPED, USED OR EMPLOYED BY THE COMPANY WHICH ARE
TREATED AS CONFIDENTIAL BY THE COMPANY AND NOT GENERALLY DISCLOSED BY THE
COMPANY TO THE PUBLIC, AND WHICH RELATE TO THE BUSINESS OR FINANCIAL AFFAIRS OF
THE COMPANY, INCLUDING, BUT NOT LIMITED TO, FINANCIAL STATEMENTS AND
INFORMATION, MARKETING STRATEGIES, BUSINESS DEVELOPMENT PLANS, ACQUISITION OR
DIVESTITURE PLANS, AND PRODUCT OR PROCESS ENHANCEMENT PLANS.
4.
TERMINATION FOR CAUSE.
FOR PURPOSES OF THIS AGREEMENT, TERMINATION FOR "CAUSE" MEANS TERMINATION AS A
RESULT OF (A) THE WILLFUL AND CONTINUED FAILURE BY THE PARTICIPANT TO
SUBSTANTIALLY PERFORM HIS OR HER DUTIES WITH THE COMPANY OR ANY SUBSIDIARY
(OTHER THAN A FAILURE RESULTING FROM THE PARTICIPANT'S INCAPACITY DUE TO
PHYSICAL OR MENTAL ILLNESS), AFTER A WRITTEN DEMAND FOR SUBSTANTIAL PERFORMANCE
IS DELIVERED TO THE PARTICIPANT BY HIS OR HER SUPERIOR OFFICER WHICH
SPECIFICALLY IDENTIFIES THE MANNER THE OFFICER BELIEVES THAT THE PARTICIPANT HAS
NOT SUBSTANTIALLY PERFORMED HIS OR HER DUTIES, OR (B) THE PARTICIPANT'S WILLFUL
MISCONDUCT WHICH MATERIALLY INJURES THE COMPANY, MONETARILY OR OTHERWISE.
FOR
PURPOSES OF THIS SECTION, THE PARTICIPANT'S ACT, OR FAILURE TO ACT, WILL NOT BE
CONSIDERED "WILLFUL" UNLESS THE ACT OR FAILURE TO ACT IS NOT IN GOOD FAITH AND
WITHOUT REASONABLE BELIEF THAT HIS OR HER ACTION OR OMISSION WAS IN THE BEST
INTEREST OF THE COMPANY.