THE PORTION OF THE GROSS-UP
PAYMENT ATTRIBUTABLE TO SUCH REDUCTION.
SECTION 10.
RESTRICTIVE COVENANTS.
EMPLOYEE ACKNOWLEDGES AND AGREES THAT (A) THE
AGREEMENTS AND COVENANTS CONTAINED IN THIS SECTION 10 ARE (I) REASONABLE AND
VALID IN GEOGRAPHICAL AND TEMPORAL SCOPE AND IN ALL OTHER RESPECTS, AND
(II) ESSENTIAL TO PROTECT THE VALUE OF THE COMPANY'S BUSINESS AND ASSETS, AND
(B) BY HIS EMPLOYMENT WITH THE COMPANY, EMPLOYEE WILL OBTAIN KNOWLEDGE,
CONTACTS, KNOW-HOW, TRAINING AND EXPERIENCE AND THERE IS A SUBSTANTIAL
PROBABILITY THAT SUCH KNOWLEDGE, KNOW-HOW, CONTACTS, TRAINING AND EXPERIENCE
COULD BE USED TO THE SUBSTANTIAL ADVANTAGE OF A COMPETITOR OF THE COMPANY AND TO
THE COMPANY'S SUBSTANTIAL DETRIMENT.
FOR PURPOSES OF THIS SECTION 10,
REFERENCES TO THE COMPANY SHALL BE DEEMED TO INCLUDE ITS SUBSIDIARIES.
(A)
CONFIDENTIAL INFORMATION.
AT ANY TIME DURING AND AFTER THE END OF
EMPLOYEE'S EMPLOYMENT WITH THE COMPANY, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
BOARD, EXCEPT TO THE EXTENT REQUIRED BY AN ORDER OF A COURT HAVING JURISDICTION
OR UNDER SUBPOENA FROM AN APPROPRIATE GOVERNMENT AGENCY, IN WHICH EVENT,
EMPLOYEE SHALL, TO THE EXTENT LEGALLY PERMITTED, CONSULT WITH THE BOARD PRIOR TO
RESPONDING TO ANY SUCH ORDER OR SUBPOENA, AND EXCEPT
13
AS HE IN GOOD FAITH BELIEVES NECESSARY OR DESIRABLE IN THE PERFORMANCE OF HIS
DUTIES HEREUNDER, EMPLOYEE SHALL NOT DISCLOSE TO OR USE FOR THE BENEFIT OF ANY
THIRD PARTY ANY CONFIDENTIAL INFORMATION.
(B)
NON-COMPETITION.
EMPLOYEE COVENANTS AND AGREES THAT DURING THE
RESTRICTED PERIOD, EMPLOYEE SHALL NOT, DIRECTLY OR INDIRECTLY, INDIVIDUALLY OR
JOINTLY, OWN ANY INTEREST IN, OPERATE, JOIN, CONTROL OR PARTICIPATE AS A
PARTNER, DIRECTOR, PRINCIPAL, OFFICER, OR AGENT OF, ENTER INTO THE EMPLOYMENT
OF, ACT AS A CONSULTANT TO, OR PERFORM ANY SERVICES FOR ANY PERSON (OTHER THAN
THE COMPANY), THAT ENGAGES IN ANY COMPETITIVE ACTIVITIES WITHIN THE RESTRICTED
AREA.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS SECTION 10(B) SHALL
NOT PREVENT EMPLOYEE FROM ACQUIRING AS AN INVESTMENT SECURITIES REPRESENTING NOT
MORE THAN THREE PERCENT (3%) OF THE OUTSTANDING VOTING SECURITIES OF ANY
PUBLICLY-HELD CORPORATION OR FROM BEING A PASSIVE INVESTOR IN ANY MUTUAL FUND,
HEDGE FUND, PRIVATE EQUITY FUND OR SIMILAR POOLED ACCOUNT SO LONG AS EMPLOYEE'S
INTEREST THEREIN IS LESS THAN THREE PERCENT (3%) AND HE HAS NO ROLE IN SELECTING
OR MANAGING INVESTMENTS THEREOF.
(C)
NON-INTERFERENCE.
DURING THE RESTRICTED PERIOD, EMPLOYEE SHALL
NOT, DIRECTLY OR INDIRECTLY, FOR HIS OWN ACCOUNT OR FOR THE ACCOUNT OF ANY OTHER
PERSON, ENGAGE IN INTERFERING ACTIVITIES.
(D)
RETURN OF DOCUMENTS.
IN THE EVENT OF THE TERMINATION OF
EMPLOYEE'S EMPLOYMENT FOR ANY REASON, EMPLOYEE SHALL DELIVER TO THE COMPANY ALL
OF (I) THE PROPERTY OF THE COMPANY, AND (II) THE DOCUMENTS AND DATA OF ANY
NATURE AND IN WHATEVER MEDIUM OF THE COMPANY, AND HE SHALL NOT TAKE WITH HIM ANY
SUCH PROPERTY, DOCUMENTS OR DATA OR ANY REPRODUCTION THEREOF, OR ANY DOCUMENTS
CONTAINING OR PERTAINING TO ANY CONFIDENTIAL INFORMATION.
(E)
PROPRIETARY INFORMATION AGREEMENT.
EMPLOYEE HAS SIGNED AND AGREES
TO COMPLY WITH THE PROPRIETARY INFORMATION AGREEMENT.
(F)
BLUE PENCIL.
IF ANY COURT OF