AND
PROPRIETARY RIGHTS.
(A)
CONFIDENTIALITY. EXECUTIVE ACKNOWLEDGES THAT, WHILE EMPLOYED BY
THE COMPANY, EXECUTIVE HAS OCCUPIED AND WILL OCCUPY A POSITION OF TRUST AND
CONFIDENCE. THE COMPANY HAS PROVIDED AND SHALL PROVIDE EXECUTIVE WITH
"CONFIDENTIAL INFORMATION" AS REFERRED TO BELOW. EXECUTIVE SHALL NOT, EXCEPT AS
EXECUTIVE IN GOOD FAITH DEEMS APPROPRIATE TO PERFORM EXECUTIVE'S DUTIES
HEREUNDER OR AS REQUIRED BY APPLICABLE LAW, WITHOUT LIMITATION IN TIME,
COMMUNICATE, DIVULGE, DISSEMINATE, DISCLOSE TO OTHERS OR OTHERWISE USE, WHETHER
DIRECTLY OR INDIRECTLY, ANY CONFIDENTIAL INFORMATION REGARDING THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR AFFILIATES. "CONFIDENTIAL INFORMATION" SHALL MEAN
INFORMATION ABOUT THE COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, AND
THEIR RESPECTIVE BUSINESSES, EMPLOYEES, CONSULTANTS, CONTRACTORS, CLIENTS AND
CUSTOMERS THAT IS NOT DISCLOSED BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OR
AFFILIATES FOR FINANCIAL REPORTING PURPOSES OR OTHERWISE GENERALLY MADE
AVAILABLE TO THE PUBLIC (OTHER THAN BY EXECUTIVE'S BREACH OF THE TERMS HEREOF OR
THE TERMS OF ANY PREVIOUS CONFIDENTIALITY OBLIGATION BY EXECUTIVE TO THE
COMPANY) AND THAT WAS LEARNED OR DEVELOPED BY EXECUTIVE IN THE COURSE OF
EMPLOYMENT BY THE COMPANY OR ANY OF ITS SUBSIDIARIES OR AFFILIATES, INCLUDING
(WITHOUT LIMITATION) ANY PROPRIETARY KNOWLEDGE, TRADE SECRETS, DATA, FORMULAE,
INFORMATION AND CLIENT AND CUSTOMER LISTS AND ALL PAPERS, RESUMES, AND RECORDS
(INCLUDING COMPUTER RECORDS) OF THE DOCUMENTS CONTAINING SUCH CONFIDENTIAL
INFORMATION. EXECUTIVE ACKNOWLEDGES THAT SUCH CONFIDENTIAL INFORMATION IS
SPECIALIZED, UNIQUE IN NATURE AND OF GREAT VALUE TO THE COMPANY AND ITS
SUBSIDIARIES OR AFFILIATES, AND THAT SUCH INFORMATION GIVES THE COMPANY AND ITS
SUBSIDIARIES OR AFFILIATES A COMPETITIVE ADVANTAGE. EXECUTIVE AGREES TO DELIVER
OR RETURN TO THE COMPANY, AT THE COMPANY'S REQUEST AT ANY TIME OR UPON
TERMINATION OR EXPIRATION OF EXECUTIVE'S EMPLOYMENT OR AS SOON THEREAFTER AS
POSSIBLE, ALL DOCUMENTS, COMPUTER TAPES AND DISKS, RECORDS, LISTS, DATA,
DRAWINGS, PRINTS, NOTES AND WRITTEN INFORMATION (AND ALL COPIES THEREOF)
FURNISHED BY THE COMPANY AND ITS SUBSIDIARIES OR AFFILIATES OR PREPARED BY
EXECUTIVE IN THE COURSE OF EXECUTIVE'S EMPLOYMENT BY THE COMPANY AND ITS
SUBSIDIARIES OR AFFILIATES. AS USED IN THIS AGREEMENT, "SUBSIDIARIES" AND
"AFFILIATES" SHALL MEAN ANY COMPANY CONTROLLED BY, CONTROLLING OR UNDER COMMON
CONTROL WITH THE COMPANY.
4
(B)
NON-COMPETITION. IN CONSIDERATION OF THIS AGREEMENT, AND FOR OTHER
GOOD AND VALUABLE CONSIDERATION PROVIDED HEREUNDER, THE RECEIPT AND SUFFICIENCY
OF WHICH ARE HEREBY ACKNOWLEDGED BY EXECUTIVE, EXECUTIVE HEREBY AGREES AND
COVENANTS THAT, DURING EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND FOR A PERIOD
OF (12) TWELVE MONTHS THEREAFTER, EXECUTIVE SHALL NOT, WITHOUT THE PRIOR WRITTEN
CONSENT OF THE COMPANY, DIRECTLY OR INDIRECTLY, ENGAGE IN OR BECOME ASSOCIATED
WITH A COMPETITIVE ACTIVITY. FOR PURPOSES OF THIS SECTION 2(B),
(I) A
"COMPETITIVE ACTIVITY" MEANS ANY BUSINESS OR OTHER ENDEAVOR INVOLVING PRODUCTS
OR SERVICES THAT ARE THE SAME OR SIMILAR TO PRODUCTS OR SERVICES (THE "COMPANY
PRODUCTS OR SERVICES") THAT ANY BUSINESS OF THE COMPANY IS ENGAGED IN PROVIDING
AS OF THE DATE HEREOF OR AT ANY TIME DURING THE TERM, PROVIDED SUCH BUSINESS OR
ENDEAVOR IS IN THE UNITED STATES, OR IN ANY FOREIGN