OF TERMINATION, OR ANY DATE
THEREAFTER ELECTED BY THE COMPANY IN ITS SOLE DISCRETION. THE FAILURE BY THE
EXECUTIVE OR THE COMPANY TO SET FORTH IN THE NOTICE OF TERMINATION ANY FACT OR
CIRCUMSTANCE WHICH CONTRIBUTES TO A SHOWING OF CAUSE OR GOOD REASON SHALL NOT
WAIVE ANY RIGHT OF THE EXECUTIVE OR THE COMPANY HEREUNDER OR PRECLUDE THE
EXECUTIVE OR THE COMPANY FROM ASSERTING SUCH FACT OR CIRCUMSTANCE IN ENFORCING
THE EXECUTIVE'S OR THE COMPANY'S RIGHTS HEREUNDER.
5.
CONFIDENTIALITY OF TRADE SECRETS AND BUSINESS INFORMATION.
EXECUTIVE AGREES THAT EXECUTIVE WILL NOT, AT ANY TIME DURING EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY OR THEREAFTER, DISCLOSE OR USE ANY TRADE SECRET,
PROPRIETARY OR CONFIDENTIAL INFORMATION OF THE COMPANY OR ANY SUBSIDIARY OR
AFFILIATE OF THE COMPANY (COLLECTIVELY, "CONFIDENTIAL INFORMATION"), OBTAINED BY
HIM DURING THE COURSE OF SUCH EMPLOYMENT, EXCEPT FOR (I) DISCLOSURES AND USES
REQUIRED IN THE COURSE OF SUCH EMPLOYMENT OR WITH THE WRITTEN PERMISSION OF THE
COMPANY, (II) DISCLOSURES NECESSARY TO ESTABLISH OR ASSERT EXECUTIVE'S RIGHTS
HEREUNDER, OR, (III) AS APPLICABLE, ANY SUBSIDIARY OR AFFILIATE OF THE COMPANY
OR AS MAY BE REQUIRED BY LAW; PROVIDED THAT, IF EXECUTIVE RECEIVES NOTICE THAT
ANY PARTY WILL SEEK TO COMPEL HIM BY PROCESS OF LAW TO DISCLOSE ANY CONFIDENTIAL
INFORMATION, EXECUTIVE SHALL PROMPTLY NOTIFY THE COMPANY AND PROVIDE REASONABLE
COOPERATION TO THE COMPANY (AT THE COMPANY'S SOLE EXPENSE) IN SEEKING A
PROTECTIVE ORDER AGAINST SUCH DISCLOSURE. NOTWITHSTANDING THE FOREGOING,
"CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE INFORMATION THAT IS OR BECOMES
PUBLICLY KNOWN OUTSIDE THE COMPANY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES
THROUGH NO ACT OR FAILURE TO ACT BY EXECUTIVE.
6.
RETURN OF INFORMATION. EXECUTIVE AGREES THAT AT THE TIME OF ANY
TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, WHETHER AT THE INSTANCE
OF EXECUTIVE OR THE COMPANY, AND REGARDLESS OF THE REASONS THEREFORE, EXECUTIVE
WILL DELIVER TO THE COMPANY (AT THE COMPANY'S EXPENSE), AND NOT KEEP OR DELIVER
TO ANYONE ELSE, ANY AND ALL NOTES, FILES, MEMORANDA, PAPERS AND, IN GENERAL, ANY
AND ALL PHYSICAL (INCLUDING ELECTRONIC) MATTER CONTAINING CONFIDENTIAL
INFORMATION AND OTHER INFORMATION RELATING TO THE BUSINESS OF THE COMPANY OR ANY
SUBSIDIARY OR AFFILIATE OF THE COMPANY WHICH ARE IN EXECUTIVE'S POSSESSION,
EXCEPT AS OTHERWISE CONSENTED IN WRITING BY THE COMPANY AT THE TIME OF SUCH
TERMINATION. THE FOREGOING SHALL NOT PREVENT EXECUTIVE FROM RETAINING COPIES OF
PERSONAL DIARIES, PERSONAL NOTES, PERSONAL ADDRESS BOOKS, PERSONAL CALENDARS,
AND ANY OTHER PERSONAL INFORMATION (INCLUDING, WITHOUT LIMITATION, INFORMATION
RELATING TO EXECUTIVE'S COMPENSATION), BUT ONLY TO THE EXTENT SUCH COPIES DO NOT
CONTAIN ANY CONFIDENTIAL INFORMATION.
6
7.
NONCOMPETITION. IN CONSIDERATION FOR THE COMPENSATION PAYABLE TO
EXECUTIVE UNDER THIS AGREEMENT, EXECUTIVE AGREES THAT EXECUTIVE WILL NOT, DURING
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY AND FOR A PERIOD OF ONE (1) YEAR AFTER
ANY TERMINATION OF EMPLOYMENT, RENDER SERVICES TO A COMPETITOR OF THE COMPANY OR
ANY AFFILIATE, REGARDLESS OF THE NATURE THEREOF, OR ENGAGE IN ANY ACTIVITY WHICH
IS IN DIRECT CONFLICT WITH OR MATERIALLY ADVERSE TO THE INTERESTS OF THE COMPANY
OR