BY CODE SECTION 4999 OR WHICH THE COMPANY MAY PAY WITHOUT LOSS OF
DEDUCTION UNDER CODE SECTION 280G(A); PROVIDED THAT THE FOREGOING REDUCTION IN
THE AMOUNT OF TOTAL PAYMENTS SHALL NOT APPLY IF THE AFTER-TAX VALUE TO EXECUTIVE
OF THE TOTAL PAYMENTS PRIOR TO REDUCTION IN ACCORDANCE HEREWITH IS GREATER THAN
THE AFTER-TAX VALUE TO EXECUTIVE IF TOTAL PAYMENTS ARE REDUCED IN ACCORDANCE
HEREWITH.
FOR PURPOSES OF THIS AGREEMENT, THE TERMS "EXCESS PARACHUTE PAYMENT"
AND "PARACHUTE PAYMENTS" SHALL HAVE THE MEANINGS ASSIGNED TO THEM IN CODE
SECTION 280G, AND SUCH "PARACHUTE PAYMENTS" SHALL BE VALUED AS PROVIDED THEREIN.
7.
COVENANTS BY EXECUTIVE.
(A)
CONFIDENTIALITY AND NON-DISCLOSURE.
EXECUTIVE ACKNOWLEDGES THAT
BY VIRTUE OF HIS EMPLOYMENT WITH THE COMPANY, HE HAS AND WILL IN THE FUTURE BE
EXPOSED TO OR HAS HAD OR MAY HAVE ACCESS TO CONFIDENTIAL INFORMATION OF COMPANY
OR ITS AFFILIATES REGARDING ITS OR THEIR BUSINESSES (WHETHER OR NOT DEVELOPED BY
EXECUTIVE), INCLUDING, BUT NOT LIMITED TO, ALGORITHMS, SOURCE CODE, SYSTEM
DESIGNS, DATA FORMATS, ANALYTICAL PROCESSES, METHODOLOGIES, BUSINESS PRACTICES,
FINANCIAL INFORMATION OR PROJECTIONS, CUSTOMER LISTS OR RECORDS, CUSTOMER
INFORMATION, EMPLOYEE RECORDS, MARK-UPS, PROJECT MATERIALS, MARKETING
TECHNIQUES, SUPPLIER INFORMATION, ACCOUNTING METHODOLOGIES, CREATIONS OR OTHER
INFORMATION THAT GIVES, OR MAY GIVE,
6
THE COMPANY OR ITS AFFILIATES AN ADVANTAGE IN THE MARKETPLACE AGAINST ITS
COMPETITORS (ALL OF THE FOREGOING ARE HEREINAFTER REFERRED TO COLLECTIVELY AS
THE "PROPRIETARY INFORMATION" EXCEPT FOR INFORMATION THAT WAS IN THE PUBLIC
DOMAIN WHEN ACQUIRED OR DEVELOPED BY THE COMPANY, OR THAT SUBSEQUENTLY ENTERS
THE PUBLIC DOMAIN OTHER THAN AS A RESULT OF A BREACH OF THIS OR ANY OTHER
AGREEMENT OR COVENANT).
EXECUTIVE FURTHER ACKNOWLEDGES THAT IT WOULD BE
POSSIBLE FOR
EXECUTIVE, UPON TERMINATION OF HIS EMPLOYMENT WITH THE COMPANY, TO
USE THE PROPRIETARY INFORMATION TO BENEFIT OTHER INDIVIDUALS OR ENTITIES, AND
THAT TO THE EXTENT EXECUTIVE ENGAGES IN ANY COMPETITIVE BUSINESS ACTIVITY FOR
HIMSELF OR OTHERS FOLLOWING HIS TERMINATION IT IS HIGHLY LIKELY THAT SUCH
ACTIVITY WOULD INEVITABLY REQUIRE HIS USE OR DISCLOSURE OF PROPRIETARY
INFORMATION.
EXECUTIVE ACKNOWLEDGES THAT THE COMPANY HAS EXPENDED CONSIDERABLE
TIME AND RESOURCES IN THE DEVELOPMENT OF THE PROPRIETARY INFORMATION AND THAT
THE PROPRIETARY INFORMATION HAS BEEN DISCLOSED TO OR LEARNED BY EXECUTIVE SOLELY
IN CONNECTION WITH EXECUTIVE'S EMPLOYMENT WITH THE COMPANY.
EXECUTIVE
ACKNOWLEDGES THAT THE PROPRIETARY INFORMATION CONSTITUTES A PROPRIETARY AND
EXCLUSIVE INTEREST OF THE COMPANY, AND, THEREFORE, EXECUTIVE AGREES THAT DURING
THE TERM OF HIS EMPLOYMENT AND AFTER THE TERMINATION THEREOF, FOR WHATEVER
REASON, ANYWHERE IN THE WORLD, EXECUTIVE SHALL NOT DIRECTLY OR INDIRECTLY
DISCLOSE THE PROPRIETARY INFORMATION TO ANY PERSON, FIRM, COURT, GOVERNMENTAL
ENTITY OR BODY, CORPORATION OR OTHER ENTITY OR USE THE PROPRIETARY INFORMATION
IN ANY MANNER, EXCEPT IN CONNECTION WITH THE BUSINESS AND AFFAIRS OF THE COMPANY
OR PURSUANT TO A VALIDLY ISSUED AND ENFORCEABLE COURT OR ADMINISTRATIVE ORDER.
IN THE EVENT THAT ANY COURT, ADMINISTRATIVE HEARING OFFICER OR OTHER JUDICIAL OR
GOVERNMENTAL REPRESENTATIVE SHALL REQUEST OR DEMAND DISCLOSURE OF ANY
PROPRIETARY INFORMATION, EXECUTIVE SHALL PROMPTLY NOTIFY THE COMPANY OF THE SAME
AND COOPERATE WITH