RELEVANT BUSINESS OR INDUSTRY OTHER
THAN AS A RESULT OF AN ACTION BY COVENANTOR IN BREACH OF THIS AGREEMENT OR
(II) COVENANTOR RECEIVES OR HAS RECEIVED ON A NON-CONFIDENTIAL BASIS FROM A
SOURCE OTHER THAN THE COMPANY.
ACCORDINGLY, COVENANTOR COVENANTS AND AGREES
WITH PARENT THAT, FOR THE PERIOD COMMENCING AT THE EFFECTIVE TIME (AS DEFINED IN
THE MERGER AGREEMENT) AND ENDING ON THE SECOND ANNIVERSARY OF THE DATE THAT
COVENANTOR CEASES TO BE A DIRECTOR, OFFICER OR EMPLOYEE OF THE COMPANY HE WILL
NOT AT ANY TIME, EXCEPT IN PERFORMANCE OF HIS OBLIGATIONS TO THE COMPANY OR WITH
THE PRIOR WRITTEN CONSENT OF PARENT, DIRECTLY OR INDIRECTLY, DISCLOSE OR REVEAL
TO ANY PERSON, ENTITY OR OTHER ORGANIZATION OR USE FOR COVENANTOR'S OWN BENEFIT
ANY PROPRIETARY INFORMATION KNOWN TO HIM UNLESS DISCLOSURE IS REQUIRED BY LAW,
REGULATION OR LEGAL PROCESS (INCLUDING, WITHOUT LIMITATION, BY DEPOSITION,
INTERROGATORY, REQUEST FOR DOCUMENTS, SUBPOENA, CIVIL INVESTIGATIVE DEMAND OR
SIMILAR PROCESS) IN CONNECTION WITH ANY PROCEEDING BY OR BEFORE A GOVERNMENTAL
OR JUDICIAL AUTHORITY, REGULATORY OR ADMINISTRATIVE BODY OR SECURITIES
EXCHANGE.
FOR PURPOSES OF THIS AGREEMENT, PROPRIETARY INFORMATION MAY BE IN ANY
MEDIUM OR FORM, INCLUDING, WITHOUT LIMITATION, PHYSICAL DOCUMENTS, COMPUTER
FILES OR DISKS, VIDEOTAPES, AUDIOTAPES, AND ORAL COMMUNICATIONS.
(B)
IN THE EVENT THAT COVENANTOR IS REQUESTED OR
REQUIRED BY LAW, REGULATION OR LEGAL PROCESS TO DISCLOSE ANY PROPRIETARY
INFORMATION, COVENANTOR SHALL PROVIDE PARENT WITH PROMPT WRITTEN NOTICE SO THAT
PARENT MAY, AT ITS OWN COST, SEEK A PROTECTIVE ORDER OR OTHER APPROPRIATE
REMEDY.
IN THE EVENT THAT SUCH PROTECTIVE ORDER OR OTHER REMEDY IS NOT OBTAINED
OR PARENT WAIVES ITS RIGHT TO SEEK SUCH AN ORDER OR REMEDY, COVENANTOR SHALL,
WITHOUT LIABILITY UNDER THIS AGREEMENT, FURNISH ONLY THAT PORTION OF SUCH
PROPRIETARY INFORMATION OR TAKE ONLY SUCH ACTION THAT, IN THE OPINION OF
COVENANTOR'S COUNSEL,
COVENANTOR IS REQUIRED TO DISCLOSE UNDER APPLICABLE LAW,
REGULATION OR LEGAL PROCESS; PROVIDED THAT COVENATOR SHALL EXERCISE HIS
COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ASSURANCE THAT CONFIDENTIAL TREATMENT
SHALL BE ACCORDED ANY SUCH PROPRIETARY INFORMATION.
(C)
COVENANTOR AGREES HE WILL NOT MAKE, OR
CAUSE OR ASSIST ANY OTHER PERSON TO MAKE, ANY STATEMENT OR OTHER COMMUNICATION,
WRITTEN OR OTHERWISE, TO ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, BOOKS,
ARTICLES OR WRITINGS OF ANY OTHER KIND, AS WELL AS FILM, VIDEOTAPE, AUDIO TAPE,
COMPUTER/INTERNET FORMAT OR ANY OTHER MEDIUM, WHICH IMPUGNS, ATTACKS OR
CRITICIZES, IS MISLEADING OR UNTRUE WITH RESPECT TO, OR IS OTHERWISE DISPARAGING
(OR THAT CONSTITUTES TRADE LIBEL) OF THE REPUTATION, BUSINESS, PROSPECTS,
PRODUCTS, SERVICES OR CHARACTER OF ANY OF THE COMPANY OR PARENT OR ANY OF THEIR
AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS OR EMPLOYEES OR THE
2
SALE TRANSACTION.
NOTHING IN THIS SECTION 1(D) SHALL PROHIBIT COVENANTOR FROM
PROVIDING TRUTHFUL INFORMATION IN RESPONSE TO A SUBPOENA OR OTHER LEGAL PROCESS.
(D)
THE PARTIES HERETO AGREE THAT THE COVENANTS
CONTAINED IN THIS SECTION 1 IMPOSE A REASONABLE RESTRAINT ON COVENANTOR.
THE
COVENANTS CONTAINED IN THIS SECTION 1 ARE INDEPENDENT COVENANTS AND SHALL BE
ENFORCEABLE BY PARENT REGARDLESS