EXECUTIVE BY THE COMPETITOR, (II) RESPONDING TO (OTHER THAN FOR
THE PURPOSE OF DECLINING) AN OFFER OF EMPLOYMENT FROM A COMPETITOR, OR
(III) BECOMING EMPLOYED BY A COMPETITOR, (X) EXECUTIVE WILL PROVIDE COPIES OF
SECTION 5 TO THE COMPETITOR, AND (Y) IN THE CASE OF ANY CIRCUMSTANCE DESCRIBED
IN (III) ABOVE OCCURRING DURING THE COVERED TIME, AND IN THE CASE OF ANY
CIRCUMSTANCE DESCRIBED IN (I) OR (II) ABOVE OCCURRING DURING THE TERM OR DURING
THE COVERED TIME, EXECUTIVE WILL PROMPTLY PROVIDE NOTICE TO THE COMPANY OF SUCH
CIRCUMSTANCES.
EXECUTIVE FURTHER AGREES THAT THE COMPANY MAY PROVIDE NOTICE TO
A COMPETITOR OF EXECUTIVE'S OBLIGATIONS UNDER THIS AGREEMENT. FOR PURPOSES OF
THIS AGREEMENT, "COMPETITOR" SHALL MEAN ANY ENTITY (OTHER THAN THE COMPANY) THAT
ENGAGES, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES IN ANY COMPETING BUSINESS.
(D)
EXECUTIVE UNDERSTANDS THAT THE RESTRICTIONS IN THIS SECTION 5.1
MAY LIMIT EXECUTIVE'S ABILITY TO EARN A LIVELIHOOD IN A BUSINESS SIMILAR TO THE
BUSINESS OF THE COMPANY BUT NEVERTHELESS AGREES AND ACKNOWLEDGES THAT THE
CONSIDERATION PROVIDED UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
SECTIONS 3 AND 4) IS SUFFICIENT TO JUSTIFY SUCH RESTRICTIONS. IN CONSIDERATION
THEREOF AND IN LIGHT OF EXECUTIVE'S EDUCATION, SKILLS AND ABILITIES, EXECUTIVE
AGREES THAT EXECUTIVE WILL NOT ASSERT IN ANY FORUM THAT SUCH RESTRICTIONS
PREVENT EXECUTIVE FROM EARNING A LIVING OR OTHERWISE SHOULD BE HELD VOID OR
UNENFORCEABLE.
(E)
FOR PURPOSES OF THIS SECTION 5.1, "COVERED TIME" SHALL MEAN THE
PERIOD BEGINNING ON THE TERMINATION DATE AND ENDING TWENTY-FOUR (24) MONTHS
AFTER THE TERMINATION DATE.
5.2
PROPRIETARY INFORMATION; INVENTIONS.
(A)
EXECUTIVE ACKNOWLEDGES THAT DURING THE COURSE OF EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY EXECUTIVE NECESSARILY WILL HAVE ACCESS TO AND MAKE
USE OF (AND DURING ANY EMPLOYMENT OF HIM BY THE COMPANY PRIOR TO THE TERM HAS
HAD ACCESS TO AND MADE USE OF) PROPRIETARY INFORMATION AND CONFIDENTIAL RECORDS
OF THE COMPANY. EXECUTIVE COVENANTS THAT EXECUTIVE SHALL NOT DURING THE TERM OR
AT ANY TIME THEREAFTER, DIRECTLY OR INDIRECTLY, USE FOR EXECUTIVE'S OWN PURPOSE
OR FOR THE BENEFIT OF ANY PERSON OR ENTITY OTHER THAN THE COMPANY, NOR OTHERWISE
DISCLOSE TO ANY INDIVIDUAL OR ENTITY, ANY SUCH PROPRIETARY INFORMATION, UNLESS
SUCH DISCLOSURE HAS BEEN AUTHORIZED IN WRITING BY THE COMPANY.
THE TERM
"PROPRIETARY INFORMATION"
16
MEANS: (I) THE SOFTWARE PRODUCTS, PROGRAMS, APPLICATIONS, AND PROCESSES UTILIZED
BY THE COMPANY; (II) THE NAME AND/OR ADDRESS OF ANY CUSTOMER OR VENDOR OF THE
COMPANY OR ANY INFORMATION CONCERNING THE TRANSACTIONS OR RELATIONS OF ANY
CUSTOMER OR VENDOR OF THE COMPANY WITH THE COMPANY; (III) ANY INFORMATION
CONCERNING ANY PRODUCT, TECHNOLOGY, OR PROCEDURE EMPLOYED BY THE COMPANY BUT NOT
GENERALLY KNOWN TO ITS CUSTOMERS OR VENDORS OR COMPETITORS, OR UNDER DEVELOPMENT
BY OR BEING TESTED BY THE COMPANY BUT NOT AT THE TIME OFFERED GENERALLY TO
CUSTOMERS OR VENDORS; (IV) ANY INFORMATION RELATING TO THE COMPANY'S COMPUTER
SOFTWARE, COMPUTER SYSTEMS, PRICING OR MARKETING METHODS, SALES MARGINS, COST OF
GOODS, COST OF MATERIAL, CAPITAL STRUCTURE, OPERATING RESULTS, BORROWING
ARRANGEMENTS OR BUSINESS PLANS; (V) ANY INFORMATION IDENTIFIED AS