AS TO MAKE
IT ENFORCEABLE, SUCH FINDING SHALL NOT AFFECT THE ENFORCEABILITY OF ANY OF THE
OTHER RESTRICTIONS CONTAINED HEREIN.
5.2.
Confidentiality.
(A)
EMPLOYEE WILL NOT AT ANY TIME (WHETHER DURING OR AFTER EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY) (X) RETAIN OR USE FOR THE BENEFIT, PURPOSES OR
ACCOUNT OF EMPLOYEE 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
8
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
EMPLOYEE'S BREACH OF THIS COVENANT OR ANY BREACH OF OTHER CONFIDENTIALITY
OBLIGATIONS BY THIRD PARTIES; (II) MADE LEGITIMATELY AVAILABLE TO EMPLOYEE BY A
THIRD PARTY WITHOUT BREACH OF ANY CONFIDENTIALITY OBLIGATION; OR (III) REQUIRED
BY LAW TO BE DISCLOSED; PROVIDED THAT EMPLOYEE SHALL GIVE PROMPT WRITTEN NOTICE
TO THE 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, EMPLOYEE WILL NOT DISCLOSE TO ANYONE,
OTHER THAN EMPLOYEE'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 EMPLOYEE MAY DISCLOSE TO ANY PROSPECTIVE FUTURE
EMPLOYER THE PROVISIONS OF SECTION 5 OF THIS AGREEMENT PROVIDED THEY AGREE TO
MAINTAIN THE CONFIDENTIALITY OF SUCH TERMS.
(D)
UPON TERMINATION OF EMPLOYEE'S EMPLOYMENT WITH THE COMPANY FOR ANY
REASON, EMPLOYEE SHALL (X) CEASE AND NOT THEREAFTER COMMENCE USE OF ANY
CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY (INCLUDING WITHOUT LIMITATION,
ANY PATENT, INVENTION, COPYRIGHT, TRADE SECRET, TRADEMARK, TRADE NAME, LOGO,
DOMAIN NAME OR OTHER SOURCE INDICATOR) OWNED OR USED BY THE COMPANY OR ITS
AFFILIATES; (Y) IMMEDIATELY DESTROY, DELETE, OR RETURN TO THE COMPANY, AT THE
COMPANY'S OPTION, ALL ORIGINALS AND COPIES IN ANY FORM OR MEDIUM (INCLUDING
MEMORANDA, BOOKS, PAPERS, PLANS, COMPUTER FILES, LETTERS AND OTHER DATA) IN
EMPLOYEE'S POSSESSION OR CONTROL (INCLUDING ANY OF THE FOREGOING STORED OR
LOCATED IN EMPLOYEE'S OFFICE, HOME, LAPTOP OR OTHER COMPUTER, WHETHER OR NOT
COMPANY PROPERTY) THAT CONTAIN CONFIDENTIAL INFORMATION OR OTHERWISE RELATE TO
THE BUSINESS OF THE COMPANY AND ITS AFFILIATES, EXCEPT THAT