OF THE TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, WAS A CUSTOMER OF THE COMPANY OR ACTIVELY WAS BEING
SOLICITED BY THE COMPANY TO BE A CUSTOMER OF THE COMPANY;
(III)
DIRECTLY OR INDIRECTLY, ENCOURAGE ANY CONSULTANT THEN UNDER CONTRACT WITH
THE COMPANY TO CEASE TO WORK WITH THE COMPANY;
(IV)
DIRECTLY OR INDIRECTLY, ENCOURAGE ANY OF THE COMPANY'S CUSTOMERS OR
SUPPLIERS TO CEASE DOING BUSINESS OR REDUCE THE AMOUNT OF BUSINESS IT DOES WITH
THE COMPANY.
B.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT ALTHOUGH THE EXECUTIVE
AND THE COMPANY CONSIDER THE RESTRICTIONS CONTAINED IN THIS PARAGRAPH 9 TO BE
REASONABLE, IF A FINAL DETERMINATION IS MADE BY AN ARBITRATOR OR ARBITRATORS, OR
BY A COURT OF COMPETENT JURISDICTION THAT THE TIME OR TERRITORY OR ANY OTHER
RESTRICTION CONTAINED IN THIS AGREEMENT IS AN UNENFORCEABLE RESTRICTION AGAINST
THE EXECUTIVE, THE PROVISIONS OF THIS AGREEMENT SHALL NOT BE RENDERED VOID BUT
SHALL BE DEEMED AMENDED TO APPLY AS TO SUCH MAXIMUM TIME AND TERRI­TORY AND TO
SUCH MAXIMUM EXTENT AS SUCH COURT MAY JUDICIALLY DETERMINE OR INDICATE TO BE
ENFORCEABLE.
ALTERNATIVELY, IF ANY COURT OF COMPETENT JURISDICTION FINDS THAT
ANY RESTRIC­TION CONTAINED IN THIS AGREEMENT IS UNENFORCEABLE, AND SUCH
RESTRICTION CANNOT BE AMENDED SO AS TO MAKE IT ENFORCEABLE, SUCH FINDING SHALL
NOT AFFECT THE ENFORCEABILITY OF ANY OF THE OTHER RESTRICTIONS CONTAINED HEREIN.
10.
CONFIDENTIAL INFORMATION.
A.
THE EXECUTIVE WILL NOT AT ANY TIME (WHETHER DURING OR AFTER THE
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY) RETAIN OR USE FOR THE BENEFIT, PURPOSES
OR ACCOUNT OF THE EXECUTIVE OR ANY OTHER PERSON OR DISCLOSE, DIVULGE, REVEAL,
COMMUNICATE, SHARE, TRANSFER OR PROVIDE ACCESS TO ANY PERSON OUTSIDE THE COMPANY
(OTHER THAN ITS PROFESSIONAL ADVISERS WHO ARE BOUND BY CONFIDENTIALITY
OBLIGATIONS OR AS OTHERWISE REQUIRED IN CONNECTION WITH THE PROPER PERFORMANCE
OF HIS DUTIES ON BEHALF OF THE COMPANY), ANY NON-PUBLIC, PROPRIETARY OR
CONFIDENTIAL INFORMATION - INCLUDING WITHOUT LIMITATION TRADE SECRETS, KNOW-HOW,
RESEARCH AND DEVELOPMENT, STRATEGIES, SOFTWARE, DATABASES, INVENTIONS,
PROCESSES, FORMULAE, TECHNOLOGY, DESIGNS AND OTHER INTELLECTUAL PROPERTY,
INFORMATION CONCERNING FINANCES, PROFITS, PRICING, COSTS, PRODUCTS, SERVICES,
VENDORS, CUSTOMERS, CLIENTS, PARTNERS, PERSONNEL, COMPENSATION, RECRUITING,
TRAINING, ADVERTISING, SALES, MARKETING, PROMOTIONS - CONCERNING THE PAST,
CURRENT OR FUTURE BUSINESS, ACTIVITIES AND OPERATIONS OF THE COMPANY AND/OR ANY
THIRD PARTY THAT HAS DISCLOSED OR PROVIDED ANY OF SAME TO THE COMPANY ON A
CONFIDENTIAL BASIS ("CONFIDENTIAL INFORMATION") WITHOUT THE PRIOR WRITTEN
AUTHORIZATION OF THE BOARD.
B.
"CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE ANY INFORMATION THAT
IS: (A) GENERALLY KNOWN TO THE INDUSTRY OR THE PUBLIC OTHER THAN AS A RESULT OF
THE EXECUTIVE'S BREACH OF THIS COVENANT OR ANY BREACH OF OTHER CONFIDENTIALITY
OBLIGATIONS BY THIRD PARTIES;
8
(B) MADE LEGITIMATELY AVAILABLE TO THE EXECUTIVE BY A THIRD PARTY WITHOUT BREACH
OF ANY CONFIDENTIALITY OBLIGATION; OR (C) REQUIRED BY LAW OR LEGAL PROCESS TO BE
DISCLOSED; PROVIDED THAT THE EXECUTIVE SHALL GIVE PROMPT WRITTEN NOTICE TO THE
COMPANY OF SUCH REQUIREMENT, DISCLOSE NO MORE INFORMATION THAN IS SO REQUIRED,
AND REASONABLY COOPERATE WITH ANY ATTEMPTS BY THE