THE DATE OF SUCH EXPIRATION OF ITS ELECTION
TO HAVE THE RESTRICTION PERIOD APPLY AND IN CONNECTION THEREWITH AGREES TO PAY
THE EXECUTIVE $1,000,000 PAYABLE RATABLY OVER THE RESTRICTION PERIOD IN EQUAL
MONTHLY INSTALLMENTS.
THE RESTRICTION PERIOD SHALL BE TOLLED DURING (AND SHALL BE DEEMED AUTOMATICALLY
EXTENDED BY) ANY PERIOD IN WHICH EXECUTIVE IS DETERMINED TO BE IN VIOLATION OF
THE PROVISIONS OF THIS SECTION 6 BY A RELEVANT TRIER OF FACT, BUT ONLY WITH
RESPECT TO SPECIFIC PROVISIONS TO WHICH THE BREACH RELATES.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE
PROVISIONS OF SECTION 6(A) SHALL NOT BE DEEMED BREACHED AS A RESULT OF
EXECUTIVE'S PASSIVE OWNERSHIP OF: (I) LESS THAN AN AGGREGATE OF 3% OF ANY CLASS
OF SECURITIES OF A PERSON ENGAGED, DIRECTLY OR INDIRECTLY, IN COMPETITIVE
ACTIVITIES; PROVIDED, HOWEVER, THAT SUCH STOCK IS LISTED ON A NATIONAL
SECURITIES EXCHANGE, IS QUOTED ON THE NATIONAL MARKET SYSTEM OF NASDAQ OR IS
OTHERWISE PUBLICLY TRADED; (II) LESS THAN AN AGGREGATE OF 3% IN VALUE OF ANY
INSTRUMENT OF INDEBTEDNESS OF A PERSON ENGAGED, DIRECTLY OR INDIRECTLY, IN
COMPETITIVE ACTIVITIES; OR (III) LESS THAN 3% IN INTEREST IN MUTUAL FUNDS,
PRIVATE EQUITY FUNDS, HEDGE FUNDS AND SIMILAR POOLED ENTITIES THAT HAVE
INTERESTS IN OR ARE ENGAGED, DIRECTLY OR INDIRECTLY, IN COMPETITIVE ACTIVITIES,
SO LONG AS SUCH INVESTMENTS ARE TOTALLY PASSIVE.
(C)
IF A FINAL AND NON-APPEALABLE JUDICIAL DETERMINATION IS MADE THAT ANY OF
THE PROVISIONS OF THIS SECTION 6 CONSTITUTES AN UNREASONABLE OR OTHERWISE
UNENFORCEABLE RESTRICTION AGAINST EXECUTIVE, THE PROVISIONS OF THIS SECTION 6
WILL NOT BE RENDERED VOID BUT WILL BE DEEMED TO BE MODIFIED TO THE MINIMUM
EXTENT NECESSARY TO REMAIN IN FORCE AND EFFECT FOR THE LONGEST PERIOD AND
LARGEST GEOGRAPHIC AREA THAT WOULD NOT CONSTITUTE SUCH AN UNREASONABLE OR
UNENFORCEABLE RESTRICTION. MOREOVER, NOTWITHSTANDING THE FACT THAT ANY PROVISION
OF THIS SECTION 6 IS DETERMINED NOT TO BE SPECIFICALLY ENFORCEABLE, THE COMPANY
WILL NEVERTHELESS BE ENTITLED TO RECOVER MONETARY DAMAGES AS A RESULT OF
EXECUTIVE'S BREACH OF SUCH PROVISION TO THE EXTENT PERMITTED BY APPLICABLE LAW.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. (A)
EXECUTIVE ACKNOWLEDGES THAT
THE CONFIDENTIAL INFORMATION OBTAINED BY EXECUTIVE WHILE EMPLOYED BY THE COMPANY
AND ITS SUBSIDIARIES AND AFFILIATES IS THE PROPERTY OF THE COMPANY OR ITS
SUBSIDIARIES AND AFFILIATES, AS APPLICABLE. THEREFORE, EXECUTIVE AGREES THAT
OTHER THAN IN CONNECTION WITH THE GOOD FAITH PERFORMANCE OF HER DUTIES,
EXECUTIVE SHALL NOT DISCLOSE TO ANY UNAUTHORIZED PERSON OR USE FOR EXECUTIVE'S
OWN PURPOSES ANY CONFIDENTIAL INFORMATION WITHOUT THE PRIOR WRITTEN CONSENT OF
THE COMPANY, UNLESS AND TO THE EXTENT THAT THE AFOREMENTIONED MATTERS (I) BECOME
GENERALLY KNOWN IN THE RELEVANT TRADE OR INDUSTRY OR THE PUBLIC DOMAIN OTHER
THAN AS A RESULT OF EXECUTIVE'S ACTS OR OMISSIONS IN VIOLATION OF THIS
AGREEMENT, (II) BECOME AVAILABLE TO EXECUTIVE ON A NON-CONFIDENTIAL BASIS OR
(III) WERE WITHIN EXECUTIVE'S POSSESSION PRIOR TO ITS BEING OBTAINED BY
EXECUTIVE IN THE COURSE OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY; PROVIDED,
HOWEVER, THAT IF EXECUTIVE RECEIVES A REQUEST TO