COMPANY'S
OBLIGATIONS HEREUNDER, TO PAYMENT OF HIS RETAINER THROUGH THE DATE OF SUCH
TERMINATION (PRO RATED FOR ANY FRACTIONAL PORTION OF A MONTH).
FOR THE
AVOIDANCE OF DOUBT, IF THE COMPANY TERMINATES THE CONSULTING TERM AND
EXECUTIVE'S ENGAGEMENT AS A CONSULTANT FOR CAUSE, EXECUTIVE SHALL NOT RECEIVE
ANY FURTHER PAYMENTS OF THE RETAINER OR THE FINAL PAYMENT.
(C)
CAUSE.
FOR PURPOSES OF THIS AGREEMENT, "CAUSE" SHALL MEAN A GOOD
FAITH DETERMINATION BY THE BOARD OR THE CEO THAT ONE OR MORE OF THE FOLLOWING
HAS OCCURRED: (I) THE TERMINATION OF THE TRANSACTION AGREEMENT AS A RESULT OF
ISSUES RELATED TO THE INVESTIGATION OR TO THE SUBJECT MATTER OF THE
INVESTIGATION, (II) CONSUMMATION OF TRANSACTIONS CONTEMPLATED BY TRANSACTION
AGREEMENT AT PER SHARE PRICE OF LESS THAN $44 WHERE SUCH REDUCTION IN THE
PURCHASE PRICE IS BECAUSE OF ISSUES RELATED TO THE INVESTIGATION OR TO THE
SUBJECT MATTER OF THE INVESTIGATION, (III) EXECUTIVE'S FAILING TO SATISFACTORILY
PERFORM THE SERVICES OR DISCHARGE HIS
5
DUTIES HEREUNDER FOR ANY REASON, (IV) EXECUTIVE'S FAILING TO SATISFACTORILY
COOPERATE WITH THE SECURITIES AND EXCHANGE COMMISSION IN CONNECTION WITH ANY
INVESTIGATION RELATED TO THE INVESTIGATION OR THE SUBJECT MATTER OF THE
INVESTIGATION OR (V) EXECUTIVE'S MATERIAL BREACH OF THIS AGREEMENT OR THE
COMPANY'S CODE OF CONDUCT THAT IS NOT CURED TO THE CEO'S SATISFACTION WITHIN
10 DAYS OF NOTICE TO EXECUTIVE.
10.
CONFIDENTIAL INFORMATION; INVENTIONS OF PATENTS.
(A)
EXECUTIVE ACKNOWLEDGES AND AGREES THAT, AS A RESULT OF EXECUTIVE'S
PAST, CURRENT OR FUTURE EMPLOYMENT WITH AND ENGAGEMENT BY THE COMPANY OR ANY OF
ITS SUBSIDIARIES (THE "COMPANY GROUP"), EXECUTIVE MAY DEVELOP, OBTAIN, OR LEARN
ABOUT (OR MAY HAVE DEVELOPED, OBTAINED OR LEARNED ABOUT) CONFIDENTIAL
INFORMATION (AS DEFINED BELOW), AND THE SUCCESS OF THE COMPANY GROUP DEPENDS
UPON THE USE AND PROTECTION OF SUCH INFORMATION.
FOR PURPOSES HEREOF,
"CONFIDENTIAL INFORMATION" MEANS ANY PROPRIETARY INFORMATION, DATA, IDEAS,
CONCEPTS, DISCOVERIES, TRADE SECRETS, INVENTIONS (WHETHER OR NOT PATENTABLE OR
REDUCED TO PRACTICE), INNOVATIONS, IMPROVEMENTS, KNOW-HOW, DEVELOPMENTS,
MANUFACTURING AND PRODUCTION AND OTHER TECHNIQUES, METHODS, PROCESSES,
TREATMENTS, DRAWINGS, SKETCHES, SPECIFICATIONS, DESIGNS, PLANS, PATTERNS,
MODELS, WORKS (INCLUDING COMPANY WORKS (AS DEFINED BELOW)), PLANS AND
STRATEGIES, AND ALL OTHER INTELLECTUAL PROPERTY AND CONFIDENTIAL OR PROPRIETARY
INFORMATION IN ANY FORM OR MEDIUM (WHETHER MERELY REMEMBERED OR EMBODIED IN A
TANGIBLE OR INTANGIBLE FORM OR MEDIUM) WHETHER NOW OR HEREAFTER EXISTING,
RELATING TO OR ARISING FROM THE PAST, CURRENT OR POTENTIAL BUSINESS, ACTIVITIES
AND/OR OPERATIONS OF ANY MEMBER OF THE COMPANY GROUP, INCLUDING ANY SUCH
INFORMATION RELATING TO OR CONCERNING FINANCES, SALES, MARKETING, ADVERTISING,
TRANSITION, PROMOTIONS, PRICING, PERSONNEL, CUSTOMERS, SUPPLIERS, VENDORS, RAW
MATERIAL SOURCES, PARTNERS AND/OR COMPETITORS. NOTWITHSTANDING THE FOREGOING,
"CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE SUCH PORTIONS OF ANY INFORMATION
THAT ARE OR BECOME GENERALLY KNOWN TO AND AVAILABLE FOR USE BY THE PUBLIC OTHER
THAN AS A RESULT OF ANY ACT OR OMISSION BY EXECUTIVE OR OTHERWISE AS A RESULT OF
EXECUTIVE'S BREACH OF ANY PROVISION OF THIS AGREEMENT.
(B)
EXECUTIVE SHALL NOT DISCLOSE OR USE FOR EXECUTIVE'S OWN ACCOUNT
ANY OF THE CONFIDENTIAL INFORMATION, EXCEPT AS