YEAR IMMEDIATELY PRIOR TO THE FISCAL YEAR OF THE EXECUTIVE'S DEATH, DISABILITY,
RESIGNATION OR TERMINATION BY THE COMPANY FOR CAUSE PAYABLE IN ACCORDANCE WITH
SECTION 3.2;
(C)
EXPENSES REIMBURSABLE UNDER SECTION 3.5 INCURRED BUT NOT YET
REIMBURSED TO THE EXECUTIVE TO THE DATE OF TERMINATION, PAYABLE WITHIN THIRTY
(30) DAYS AFTER THE TERMINATION OF THE EXECUTIVE'S EMPLOYMENT; AND
(D)
ANY RIGHTS THE EXECUTIVE MAY HAVE UNDER THE COMPANY'S BENEFIT
PLANS AND THE CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT.
5.2
BY THE COMPANY WITHOUT CAUSE.
IF DURING THE TERM THE COMPANY
TERMINATES THE EXECUTIVE'S EMPLOYMENT WITHOUT CAUSE (WHICH MAY BE DONE AT ANY
TIME WITHOUT PRIOR NOTICE), THEN, IN ADDITION TO THE PAYMENTS UPON TERMINATION
SPECIFIED IN SECTION 5.1, THE EXECUTIVE SHALL RECEIVE, UPON EXECUTION WITHOUT
REVOCATION OF A VALID RELEASE AGREEMENT IN A FORM ACCEPTABLE TO THE COMPANY,
CONTINUED PAYMENT OF BASE SALARY FOR A PERIOD OF SIX (6) MONTHS FOLLOWING THE
DATE OF TERMINATION.
6.
RESTRICTIONS AND OBLIGATIONS OF THE EXECUTIVE.
6.1
CONFIDENTIALITY.
(A)
DURING THE COURSE OF THE EXECUTIVE'S SERVICE RELATIONSHIP WITH THE
COMPANY AND ITS AFFILIATES, THE EXECUTIVE WILL HAVE ACCESS TO CERTAIN TRADE
SECRETS AND CONFIDENTIAL INFORMATION RELATING TO THE COMPANY AND ITS
SUBSIDIARIES (THE "PROTECTED PARTIES") WHICH IS NOT READILY AVAILABLE FROM
SOURCES OUTSIDE THE COMPANY.
THE CONFIDENTIAL AND PROPRIETARY INFORMATION AND
TRADE SECRETS OF THE PROTECTED PARTIES ARE AMONG THEIR MOST VALUABLE ASSETS,
INCLUDING BUT NOT LIMITED TO, THEIR CUSTOMER, SUPPLIER AND VENDOR LISTS,
DATABASES, COMPETITIVE STRATEGIES, COMPUTER PROGRAMS, FRAMEWORKS, OR MODELS,
THEIR MARKETING PROGRAMS, THEIR SALES, FINANCIAL, MARKETING, TRAINING AND
TECHNICAL INFORMATION, THEIR PRODUCT DEVELOPMENT (AND PROPRIETARY PRODUCT DATA)
AND ANY OTHER INFORMATION, WHETHER COMMUNICATED ORALLY, ELECTRONICALLY, IN
WRITING OR IN OTHER TANGIBLE FORMS CONCERNING HOW THE PROTECTED PARTIES CREATE,
DEVELOP, ACQUIRE OR MAINTAIN THEIR PRODUCTS AND MARKETING PLANS, TARGET THEIR
POTENTIAL CUSTOMERS AND OPERATE THEIR RETAIL AND OTHER BUSINESSES.
THE
PROTECTED PARTIES INVESTED, AND CONTINUE TO INVEST, CONSIDERABLE AMOUNTS OF TIME
AND MONEY IN THEIR PROCESS, TECHNOLOGY, KNOW-HOW, OBTAINING AND DEVELOPING THE
GOODWILL OF THEIR CUSTOMERS, THEIR OTHER EXTERNAL RELATIONSHIPS, THEIR DATA
SYSTEMS AND DATA BASES, AND ALL THE INFORMATION DESCRIBED ABOVE (HEREINAFTER
COLLECTIVELY REFERRED TO AS "CONFIDENTIAL INFORMATION"), AND ANY
MISAPPROPRIATION OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION IN ANY
FORM WOULD IRREPARABLY HARM THE PROTECTED PARTIES.
THE EXECUTIVE ACKNOWLEDGES
THAT SUCH CONFIDENTIAL INFORMATION CONSTITUTES
4
VALUABLE, HIGHLY CONFIDENTIAL, SPECIAL AND UNIQUE PROPERTY OF THE PROTECTED
PARTIES.
THE EXECUTIVE SHALL HOLD IN A FIDUCIARY CAPACITY FOR THE BENEFIT OF
THE PROTECTED PARTIES ALL CONFIDENTIAL INFORMATION RELATING TO THE PROTECTED
PARTIES AND THEIR BUSINESSES, WHICH SHALL HAVE BEEN OBTAINED BY THE EXECUTIVE
DURING THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY OR ITS SUBSIDIARIES AND WHICH
SHALL NOT BE OR BECOME PUBLIC KNOWLEDGE (OTHER THAN BY ACTS BY THE EXECUTIVE OR
REPRESENTATIVES OF THE EXECUTIVE IN VIOLATION OF THIS AGREEMENT).
EXCEPT AS
REQUIRED BY LAW OR AN ORDER OF A COURT OR GOVERNMENTAL AGENCY WITH JURISDICTION
OR A SUBPOENA OR OTHER LEGAL PROCESS, THE EXECUTIVE SHALL NOT, DURING THE PERIOD
THE EXECUTIVE IS EMPLOYED BY