COMPANY OR ANY OF ITS AFFILIATES AND
(B) HELD WITH ANY OTHER ENTITIES AT THE DIRECTION OF, OR AS A RESULT OF THE
EXECUTIVE'S AFFILIATION WITH, THE
10
COMPANY OR ANY OF ITS AFFILIATES.
IF FOR ANY REASON THIS SECTION 4.5 IS DEEMED
TO BE INSUFFICIENT TO EFFECTUATE SUCH RESIGNATIONS, THEN EXECUTIVE WILL, UPON
THE COMPANY'S REQUEST, EXECUTE ANY DOCUMENTS OR INSTRUMENTS THAT THE COMPANY MAY
DEEM NECESSARY OR DESIRABLE TO EFFECTUATE SUCH RESIGNATIONS.
IN ADDITION, THE
EXECUTIVE HEREBY DESIGNATES THE SECRETARY OR ANY ASSISTANT SECRETARY OF THE
COMPANY AND OF ANY AFFILIATE TO EXECUTE ANY SUCH DOCUMENTS OR INSTRUMENTS AS THE
EXECUTIVE'S ATTORNEY-IN-FACT TO EFFECTUATE SUCH RESIGNATIONS IF EXECUTION BY THE
SECRETARY OR ANY ASSISTANT SECRETARY OF THE COMPANY OR AFFILIATE IS DEEMED BY
THE COMPANY OR THE AFFILIATE TO BE A MORE EXPEDIENT MEANS TO EFFECTUATE SUCH
RESIGNATION OR RESIGNATIONS.
4.6
SECTION 409A OF THE CODE.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE PARTIES MUTUALLY DESIRE TO AVOID
ADVERSE TAX CONSEQUENCES ASSOCIATED WITH THE APPLICATION OF SECTION 409A OF THE
CODE TO THIS AGREEMENT AND AGREE TO COOPERATE FULLY AND TAKE APPROPRIATE
REASONABLE ACTIONS TO AVOID ANY SUCH CONSEQUENCES UNDER SECTION 409A OF THE
CODE, INCLUDING DELAYING PAYMENTS AND REFORMING THE FORM OF THE AGREEMENT IF
SUCH ACTION WOULD REDUCE OR ELIMINATE TAXES AND/OR INTEREST PAYABLE AS A RESULT
OF SECTION 409A OF THE CODE. IN THIS REGARD, NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THIS SECTION 4, TO THE EXTENT NECESSARY TO COMPLY WITH SECTION 409A
OF THE CODE, ANY PAYMENT REQUIRED UNDER THIS SECTION 4 SHALL BE DEFERRED FOR A
PERIOD OF SIX (6) MONTHS, REGARDLESS OF THE CIRCUMSTANCES GIVING RISE TO OR THE
BASIS FOR SUCH PAYMENT.
5.
CONFIDENTIALITY, WORK PRODUCT AND
NON-COMPETITION AND NON-SOLICITATION.
5.1
CONFIDENTIALITY.
(A)
IN CONNECTION WITH THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, THE COMPANY PROMISES TO PROVIDE THE EXECUTIVE WITH
ACCESS TO "CONFIDENTIAL INFORMATION" (AS DEFINED IN SECTION 5.4(D) HEREOF) IN
SUPPORT OF THE EXECUTIVE'S EMPLOYMENT DUTIES.
THE EXECUTIVE RECOGNIZES THAT THE
COMPANY'S BUSINESS INTERESTS REQUIRE A CONFIDENTIAL RELATIONSHIP BETWEEN THE
COMPANY AND THE EXECUTIVE AND THE FULLEST PRACTICAL PROTECTION AND CONFIDENTIAL
TREATMENT OF ALL CONFIDENTIAL INFORMATION.
AT ALL TIMES, BOTH DURING AND AFTER
THE EMPLOYMENT PERIOD, THE EXECUTIVE SHALL NOT DIRECTLY OR INDIRECTLY:
(I) APPROPRIATE, DOWNLOAD, PRINT, COPY, REMOVE, USE, DISCLOSE, DIVULGE,
COMMUNICATE OR OTHERWISE "MISAPPROPRIATE" (AS DEFINED IN SECTION 5.4(E) HEREOF)
ANY CONFIDENTIAL INFORMATION, INCLUDING, WITHOUT LIMITATION, ORIGINALS OR COPIES
OF ANY CONFIDENTIAL INFORMATION, IN ANY MEDIA OR FORMAT, EXCEPT FOR THE
COMPANY'S BENEFIT WITHIN THE COURSE AND SCOPE OF THE EXECUTIVE'S EMPLOYMENT OR
WITH THE PRIOR WRITTEN CONSENT OF THE CHIEF EXECUTIVE OFFICER; OR (II) TAKE OR
ENCOURAGE ANY ACTION THAT WOULD CIRCUMVENT, INTERFERE WITH OR OTHERWISE DIMINISH
THE VALUE OR BENEFIT OF THE CONFIDENTIAL INFORMATION TO ANY OF THE COMPANY
PARTIES (AS DEFINED IN SECTION 5.4(B) HEREOF).
(B)
ALL CONFIDENTIAL INFORMATION, AND ALL OTHER
INFORMATION AND PROPERTY AFFECTING OR RELATING TO THE BUSINESS OF THE COMPANY
PARTIES WITHIN THE EXECUTIVE'S POSSESSION, CUSTODY OR CONTROL,