THIS
SECTION 5 (INCLUDING, WITHOUT LIMITATION, THE DETERMINATION AS TO WHETHER ANY
AGGREGATE PAYMENTS WOULD BE SUBJECT TO THE EXCISE TAX AND THE AMOUNT OF ANY
REDUCTION OF THE AGGREGATE PAYMENTS) SHALL BE MADE BY THE COMPANY'S INDEPENDENT
AUDITORS (OR ANOTHER NATIONALLY RECOGNIZED UNITED STATES PUBLIC ACCOUNTING FIRM
SELECTED IN GOOD FAITH BY THE COMPANY) (THE "AUDITORS"). FOR PURPOSES OF MAKING
THE CALCULATIONS AND DETERMINATIONS REQUIRED BY THIS SECTION 5, THE AUDITORS MAY
MAKE REASONABLE ASSUMPTIONS AND APPROXIMATIONS CONCERNING APPLICABLE TAXES AND
MAY RELY ON REASONABLE, GOOD FAITH INTERPRETATIONS CONCERNING THE APPLICATION OF
SECTIONS 280G AND 4999 OF THE CODE AND THE DEPARTMENT OF TREASURY REGULATIONS
ISSUED THEREUNDER.
6.
OBLIGATIONS OF THE ELIGIBLE EMPLOYEE
As a condition to being designated as an Eligible Employee and to being eligible
to receive benefits hereunder, each individual so designated agrees as follows
(any individual not so agreeing shall notify the Company in writing within 10
days of being notified of the designation, in which case the designation shall
be null and void):
(A)
CONFIDENTIALITY. THE ELIGIBLE EMPLOYEE ACKNOWLEDGES THAT THE
COMPANY AND ITS AFFILIATES CONTINUALLY DEVELOP CONFIDENTIAL INFORMATION; THAT
THE ELIGIBLE EMPLOYEE MAY DEVELOP CONFIDENTIAL INFORMATION FOR THE COMPANY AND
ITS AFFILIATES; AND THAT THE ELIGIBLE EMPLOYEE MAY LEARN OF CONFIDENTIAL
INFORMATION DURING THE COURSE OF EMPLOYMENT, INCLUDING CONFIDENTIAL INFORMATION
THAT MAY RELATE TO A TRANSACTION WHICH, IF CONSUMMATED, WOULD CONSTITUTE A
CHANGE IN CONTROL.
THE ELIGIBLE EMPLOYEE WILL COMPLY WITH THE POLICIES AND
PROCEDURES OF THE COMPANY AND ITS AFFILIATES FOR PROTECTING CONFIDENTIAL
INFORMATION AND SHALL NOT DISCLOSE CONFIDENTIAL INFORMATION TO ANY PERSON OR USE
CONFIDENTIAL INFORMATION EXCEPT FOR THE BENEFIT OF THE COMPANY OR AS REQUIRED BY
APPLICABLE LAW AFTER NOTICE TO THE COMPANY AND A REASONABLE
5
opportunity for the Company to seek protection of the Confidential Information
prior to disclosure.
The Eligible Employee understands that this restriction
shall continue to apply after his employment terminates, regardless of the
reason for such termination.
(B)
RETURN OF COMPANY PROPERTY. ALL DOCUMENTS, RECORDS, TAPES AND
OTHER MEDIA OF EVERY KIND AND DESCRIPTION RELATING TO THE BUSINESS, PRESENT OR
OTHERWISE, OF THE COMPANY AND ITS AFFILIATES AND ANY COPIES, IN WHOLE OR IN
PART, THEREOF (THE "DOCUMENTS"), WHETHER OR NOT PREPARED BY THE ELIGIBLE
EMPLOYEE, SHALL BE THE SOLE AND EXCLUSIVE PROPERTY OF THE COMPANY AND ITS
AFFILIATES. THE ELIGIBLE EMPLOYEE SHALL SAFEGUARD ALL DOCUMENTS AND SHALL
SURRENDER TO THE COMPANY AT THE TIME HIS EMPLOYMENT TERMINATES, OR AT SUCH
EARLIER TIME OR TIMES AS THE BOARD OR ITS DESIGNEE MAY SPECIFY, ALL DOCUMENTS
AND OTHER PROPERTY OF THE COMPANY AND ITS AFFILIATES THEN IN THE ELIGIBLE
EMPLOYEE'S POSSESSION OR CONTROL.
(C)
RESTRICTED ACTIVITIES. IN FURTHER CONSIDERATION OF THE
COMPENSATION THAT THE ELIGIBLE EMPLOYEE MAY BECOME ENTITLED TO HEREUNDER, THE
ELIGIBLE EMPLOYEE AGREES THAT SOME RESTRICTIONS ON HIS ACTIVITIES DURING AND
AFTER HIS EMPLOYMENT ARE NECESSARY TO PROTECT THE GOODWILL, CONFIDENTIAL
INFORMATION AND OTHER LEGITIMATE INTERESTS OF THE COMPANY AND ITS AFFILIATES:
(I)
WHILE THE ELIGIBLE EMPLOYEE IS EMPLOYED BY THE COMPANY