NECESSARY FOR THE PERFORMANCE OF
EXECUTIVE'S DUTIES UNDER THIS AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF
THE CEO, UNLESS AND TO THE EXTENT THAT ANY CONFIDENTIAL INFORMATION IS REQUIRED
TO BE DISCLOSED PURSUANT TO ANY APPLICABLE LAW OR COURT ORDER; PROVIDED THAT IF
EXECUTIVE IS REQUESTED OR REQUIRED (BY ORAL QUESTION OR REQUEST FOR INFORMATION
OR DOCUMENTS IN ANY LEGAL PROCEEDING, INTERROGATORY, SUBPOENA, CIVIL
INVESTIGATIVE DEMAND, OR SIMILAR PROCESS) TO DISCLOSE ANY CONFIDENTIAL
INFORMATION, THEN EXECUTIVE SHALL (IF SO PERMITTED) NOTIFY THE COMPANY PROMPTLY
OF THE REQUEST OR REQUIREMENT IN WRITING SO THAT THE COMPANY MAY SEEK AN
APPROPRIATE PROTECTIVE ORDER (AT THE COMPANY'S SOLE EXPENSE) OR WAIVE COMPLIANCE
WITH THE PROVISIONS OF THIS SECTION 10(B).
IF, IN THE ABSENCE OF A PROTECTIVE
ORDER OR THE RECEIPT OF A WAIVER HEREUNDER, EXECUTIVE IS, ON THE ADVICE OF
EXECUTIVE'S COUNSEL, COMPELLED TO DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY
TRIBUNAL OR ELSE STAND LIABLE FOR CONTEMPT, EXECUTIVE MAY DISCLOSE THE
CONFIDENTIAL INFORMATION TO SUCH TRIBUNAL; PROVIDED THAT EXECUTIVE SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN, AT THE REQUEST AND EXPENSE OF THE
COMPANY, AN ORDER OR OTHER ASSURANCE THAT CONFIDENTIAL TREATMENT SHALL BE
ACCORDED TO SUCH PORTION OF THE CONFIDENTIAL INFORMATION REQUIRED TO BE
DISCLOSED AS THE COMPANY SHALL DESIGNATE AND SHALL DISCLOSE ONLY SUCH PORTIONS
OF THE CONFIDENTIAL INFORMATION AS ARE REQUIRED BY SUCH TRIBUNAL TO BE
DISCLOSED.
IN ANY EVENT, EXECUTIVE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO
6
MARK, OR CAUSE TO BE MARKED, ANY CONFIDENTIAL INFORMATION THAT IS DISCLOSED IN
ACCORDANCE WITH THIS SECTION 10(B) AS CONFIDENTIAL AND TO ACCORD SUCH
INFORMATION CONFIDENTIAL TREATMENT.
UPON THE TERMINATION OF THE CONSULTING
TERM, OR AT ANY OTHER TIME THAT THE COMPANY MAY REQUEST IN WRITING, EXECUTIVE
AGREES TO (I) CEASE ALL USE OF ALL CONFIDENTIAL INFORMATION AND COMPANY WORKS
AND (II) DELIVER TO THE COMPANY OR, AT THE COMPANY'S ELECTION, DESTROY, ALL
MEMORANDA, NOTES, PLANS, RECORDS, REPORTS, NOTEBOOKS (AND SIMILAR REPOSITORIES
OF OR CONTAINING CONFIDENTIAL INFORMATION AND/OR COMPANY WORKS), COMPUTER FILES
AND OTHER DOCUMENTS OR OTHER MATERIALS (AND ALL COPIES, SUMMARIES AND EXTRACTS
THEREOF, IN WHATEVER FORM OR MEDIUM) RELATING TO THE BUSINESS, OPERATIONS AND/OR
ACTIVITIES OF ANY MEMBER OF THE COMPANY GROUP OR THAT OTHERWISE CONSTITUTE
CONFIDENTIAL INFORMATION, AND AT ANY TIME THEREAFTER, IF ANY SUCH MATERIALS ARE
BROUGHT TO EXECUTIVE'S ATTENTION OR EXECUTIVE DISCOVERS THEM IN EXECUTIVE'S
POSSESSION OR CONTROL, EXECUTIVE SHALL DELIVER SUCH MATERIALS TO THE COMPANY,
OR, AT THE COMPANY'S ELECTION, DESTROY ALL SUCH MATERIALS, PROMPTLY UPON SUCH
NOTICE OR DISCOVERY.
(C)
IF EXECUTIVE CREATES, INVENTS, DESIGNS, DEVELOPS, CONTRIBUTES TO
OR IMPROVES ANY WORKS OF AUTHORSHIP, INVENTIONS, WHETHER PATENTABLE OR
UNPATENTABLE AND WHETHER OR NOT REDUCED TO PRACTICE, KNOW HOW, DATA, PROCESSES,
METHODS, PROGRAMS, SYSTEMS, MATERIALS, DOCUMENTS OR OTHER WORK PRODUCT OR OTHER
INTELLECTUAL PROPERTY, EITHER ALONE OR IN CONJUNCTION WITH THIRD PARTIES, AT ANY
TIME DURING EXECUTIVE'S EMPLOYMENT BY OR ENGAGEMENT WITH ANY MEMBER OF THE
COMPANY GROUP (COLLECTIVELY, "WORKS"), TO THE EXTENT THAT SUCH WORKS WERE
CREATED, INVENTED, DESIGNED, DEVELOPED, CONTRIBUTED TO, OR IMPROVED