AMOUNTS PAYABLE
UNDER SECTION 4 OF THIS PLAN SHALL BE DEEMED NOT TO BE A "DEFERRAL OF
COMPENSATION" SUBJECT TO SECTION 409A TO THE EXTENT PROVIDED IN THE EXCEPTIONS
IN TREAS. REG. SECTIONS 1.409A-1(B)(4) ("SHORT-TERM DEFERRALS") AND
(B)(9) ("SEPARATION PAY PLANS," INCLUDING THE EXCEPTION UNDER SUBPARAGRAPH
(III)) AND OTHER APPLICABLE PROVISIONS OF TREAS. REG. SECTION 1.409A-1 THROUGH
A-6.
9.
PARTICIPANT COVENANTS.
(A)
IN THE PERFORMANCE OF THE PARTICIPANT'S DUTIES, THE PARTICIPANT
HAS PREVIOUSLY HAD, AND MAY IN THE FUTURE HAVE, ACCESS TO CONFIDENTIAL RECORDS
AND INFORMATION, INCLUDING, BUT NOT LIMITED TO, DEVELOPMENT, MARKETING,
PURCHASING, ORGANIZATIONAL, STRATEGIC, FINANCIAL, MANAGERIAL, ADMINISTRATIVE,
MANUFACTURING, PRODUCTION, DISTRIBUTION AND SALES INFORMATION, DATA,
SPECIFICATIONS AND PROCESSES PRESENTLY OWNED OR AT ANY TIME HEREAFTER DEVELOPED
BY THE COMPANY OR ITS AGENTS OR CONSULTANTS OR USED PRESENTLY OR AT ANY TIME
HEREAFTER IN THE COURSE OF ITS BUSINESS, THAT ARE NOT OTHERWISE PART OF THE
PUBLIC DOMAIN (COLLECTIVELY, THE "CONFIDENTIAL MATERIAL"). ALL SUCH CONFIDENTIAL
8
MATERIAL IS CONSIDERED SECRET AND HAS BEEN AND/OR WILL BE DISCLOSED TO THE
PARTICIPANTS IN CONFIDENCE. BY EXECUTING A SEPARATION AGREEMENT AND RELEASE, A
PARTICIPANT SHALL AGREE THAT:
(V)
THE CONFIDENTIAL MATERIAL CONSTITUTES PROPRIETY INFORMATION OF THE
COMPANY WHICH DRAWS INDEPENDENT ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM NOT
BEING GENERALLY KNOWN TO THE PUBLIC OR TO OTHER PERSONS WHO COULD OBTAIN
ECONOMIC VALUE FROM ITS DISCLOSURE OR USE, AND THAT THE COMPANY HAS TAKEN
EFFORTS REASONABLE UNDER THE CIRCUMSTANCES, OF WHICH THIS SECTION 9(A) IS AN
EXAMPLE, TO MAINTAIN ITS SECRECY;
(VI)
EXCEPT IN THE PERFORMANCE OF A PARTICIPANT'S DUTIES TO THE
COMPANY, HE OR SHE SHALL NOT, DIRECTLY OR INDIRECTLY FOR ANY REASON WHATSOEVER,
DISCLOSE OR USE ANY SUCH CONFIDENTIAL MATERIAL THAT (X) HAS BEEN PUBLICLY
DISCLOSED OR WAS WITHIN THE PARTICIPANT'S POSSESSION BEFORE ITS BEING FURNISHED
TO HIM OR HER BY THE COMPANY OR BECOMES AVAILABLE TO HIM OR HER ON A
NONCONFIDENTIAL BASIS FROM A THIRD PARTY (IN ANY OF SUCH CASES, NOT DUE TO A
BREACH BY THE PARTICIPANT OR HIS OR HER OBLIGATIONS TO THE COMPANY OR BY BREACH
OF ANY OTHER PERSON OF A CONFIDENTIAL, FIDUCIARY OR CONFIDENTIAL OBLIGATION, THE
BREACH OF WHICH THE PARTICIPANT KNOWS OR REASONABLY SHOULD KNOW), (Y) IS
REQUIRED TO BE DISCLOSED BY THE PARTICIPANT PURSUANT TO APPLICABLE LAW, AND THE
PARTICIPANT PROVIDES NOTICE TO THE COMPANY OF SUCH REQUIREMENT AS PROMPTLY AS
POSSIBLE, OR (Z) WAS INDEPENDENTLY ACQUIRED OR DEVELOPED BY THE PARTICIPANT
WITHOUT VIOLATING ANY OF THE OBLIGATIONS UNDER THIS PLAN AND WITHOUT RELYING ON
CONFIDENTIAL MATERIAL OF THE COMPANY; AND
(VII)
ALL RECORDS, FILES, DRAWINGS, DOCUMENTS, EQUIPMENT AND OTHER
TANGIBLE ITEMS, WHEREVER LOCATED, RELATING IN ANY WAY TO THE CONFIDENTIAL
MATERIAL OR OTHERWISE TO THE COMPANY'S BUSINESS, WHICH A PARTICIPANT HAS
PREPARED, USED OR ENCOUNTERED SHALL BE AND REMAIN THE COMPANY'S SOLE AND
EXCLUSIVE PROPERTY AND SHALL BE INCLUDED IN THE CONFIDENTIAL MATERIAL, AND, UPON
A PARTICIPANT'S TERMINATION OF EMPLOYMENT WITH THE COMPANY, OR WHENEVER
REQUESTED BY THE COMPANY, HE OR SHE SHALL PROMPTLY DELIVER TO THE COMPANY ANY
AND