WITHIN THE MEANING OF AND SUBJECT TO SECTION 409A ("NONQUALIFIED DEFERRED
COMPENSATION"), THEN THE REDUCTION SHALL OCCUR IN THE MANNER YOU ELECT IN
WRITING PRIOR TO THE DATE OF PAYMENT.
IF ANY PAYMENT CONSTITUTES NONQUALIFIED
DEFERRED COMPENSATION OR IF YOU FAIL TO ELECT AN ORDER, THEN THE PAYMENTS TO BE
REDUCED WILL BE DETERMINED IN A MANNER WHICH HAS THE LEAST ECONOMIC COST TO YOU
AND, TO THE EXTENT THE ECONOMIC COST IS EQUIVALENT, WILL BE REDUCED IN THE
INVERSE ORDER OF WHEN PAYMENT WOULD HAVE BEEN MADE TO YOU, UNTIL THE REDUCTION
IS ACHIEVED.
ALL DETERMINATIONS REQUIRED TO BE MADE UNDER THIS PARAGRAPH 6,
INCLUDING WHETHER AND WHEN THE SAFE HARBOR AMOUNT IS REQUIRED AND THE AMOUNT OF
THE REDUCTION OF THE PAYMENTS AND THE ASSUMPTIONS TO BE UTILIZED IN ARRIVING AT
SUCH DETERMINATION, SHALL BE MADE BY A CERTIFIED PUBLIC ACCOUNTING FIRM
DESIGNATED BY THE COMPANY (THE "ACCOUNTING FIRM").
ALL FEES AND EXPENSES OF THE
ACCOUNTING FIRM SHALL BE BORNE SOLELY BY THE COMPANY.
ANY DETERMINATION BY THE
ACCOUNTING FIRM SHALL BE BINDING UPON THE COMPANY AND YOU.
7.
EMPLOYEE COVENANTS.
(A)
CONFIDENTIALITY.
YOU AGREE THAT, WHILE YOU ARE EMPLOYED BY THE
COMPANY AND THEREAFTER, YOU WILL NOT, DIRECTLY OR INDIRECTLY, USE, MAKE
AVAILABLE, SELL, DISCLOSE OR OTHERWISE COMMUNICATE TO ANY PERSON, OTHER THAN IN
THE COURSE OF THE GOOD FAITH PERFORMANCE OF YOUR ASSIGNED DUTIES AND
RESPONSIBILITIES AND FOR THE BENEFIT OF THE COMPANY, EITHER DURING THE PERIOD OF
YOUR EMPLOYMENT OR AT ANY TIME THEREAFTER, ANY BUSINESS AND TECHNICAL
INFORMATION OR TRADE SECRETS, NONPUBLIC, PROPRIETARY OR CONFIDENTIAL
INFORMATION, KNOWLEDGE OR DATA RELATING TO THE COMPANY OR ITS BUSINESSES, WHICH
YOU WILL HAVE OBTAINED DURING YOUR EMPLOYMENT WITH THE COMPANY ("CONFIDENTIAL
INFORMATION").
NOTWITHSTANDING THE FOREGOING, "CONFIDENTIAL INFORMATION" WILL
NOT APPLY TO INFORMATION THAT: (1)
6
WAS KNOWN TO THE PUBLIC PRIOR TO ITS DISCLOSURE TO YOU; (2) BECOMES GENERALLY
KNOWN TO THE PUBLIC SUBSEQUENT TO DISCLOSURE TO YOU THROUGH NO WRONGFUL ACT OF
YOU OR ANY OF YOUR REPRESENTATIVES; OR (3) YOU ARE REQUIRED TO DISCLOSE BY
APPLICABLE LAW, REGULATION OR LEGAL PROCESS (PROVIDED THAT YOU PROVIDE THE
COMPANY WITH PRIOR NOTICE OF THE CONTEMPLATED DISCLOSURE AND REASONABLY
COOPERATE WITH THE COMPANY AT ITS EXPENSE IN SEEKING A PROTECTIVE ORDER OR OTHER
APPROPRIATE PROTECTION OF SUCH INFORMATION).
YOU ALSO AGREE TO TURN OVER ALL
COPIES OF CONFIDENTIAL INFORMATION IN YOUR CONTROL TO THE COMPANY UPON REQUEST
OR UPON TERMINATION OF YOUR EMPLOYMENT WITH THE COMPANY.
(B)
NON-SOLICITATION OF BUSINESS PARTNERS.
YOU AGREE THAT, WHILE YOU
ARE EMPLOYED BY THE COMPANY AND DURING THE ONE-YEAR PERIOD FOLLOWING THE
TERMINATION DATE (THE "RESTRICTED PERIOD"), YOU WILL NOT, EITHER DIRECTLY OR
INDIRECTLY, INDUCE, INFLUENCE, PERSUADE, SOLICIT OR ATTEMPT TO INDUCE, INFLUENCE
PERSUADE, OR SOLICIT ANY BUSINESS PARTNER, VENDOR, CUSTOMER OR SUPPLIER OF THE
COMPANY TO TERMINATE THE BUSINESS RELATIONSHIP OF SUCH PERSON WITH THE COMPANY,
TO MATERIALLY REDUCE THE AMOUNT OF BUSINESS CONDUCTED WITH THE COMPANY OR IN ANY
WAY INTERFERE WITH THE RELATIONSHIP BETWEEN ANY SUCH BUSINESS PARTNER,