**EXHIBIT 10.23****Execution Copy****EMPLOYMENT AGREEMENT**THIS EMPLOYMENT AGREEMENT (this “***Agreement***”) is entered into by and between **Penelope F. Roll**,(“***you***”) and Allied Capital Corporation, a Maryland corporation (the “***Company***”), and will beeffective for all purposes and in all respects as of January 1, 2004 (the “***Effective Date***”)     WHEREAS, the Company has hired you and desires to continue your employment based on yourparticular qualifications, on the condition that you shall enter into this Agreement and shallfully perform all the responsibilities and duties and strictly observe all of your obligationshereunder; and     WHEREAS, you are willing to continue your employment as Chief Financial Officer of theCompany, on the condition that the Company enter into this Agreement and shall fully perform andstrictly observe all of its obligations hereunder.     NOW, THEREFORE, in consideration of your continued employment by the Company and thecompensation to be paid by the Company to you in connection therewith and for other good andvaluable consideration, the receipt and sufficiency of which are hereby acknowledged, you and theCompany, intending legally and equitably to be bound, hereby agree as follows:1. Position and Responsibilities.     (a) Position. The Company agrees to continue your employment as Chief FinancialOfficer throughout the Term (as defined below). You shall report directly to the Chief ExecutiveOfficer of the Company.     (b) Responsibilities. You shall use your best efforts to further the interests of theCompany, to discharge diligently your duties and responsibilities to the Company under thisAgreement and to abide strictly by the policies of the Company. Subject to Section 5(b)(ii)hereof, such duties shall be rendered at the principal office of the Company or at such otherplaces for minimal periods of time as the interests, needs, business or opportunity of the Companyshall require. During the Term, you shall devote your business time, attention and energies to theCompany’s business and shall not engage in any other business activity, whether or not suchbusiness activity is pursued for gain, profit or other economic or financial advantage, except thatyou may serve as a director of companies which do not directly or indirectly compete with theCompany with the prior consent of the Board of Directors of the Company (the “***Board***”) (whichconsent shall not be unreasonably withheld) which companies are set forth in Exhibit A, attachedhereto and made a part hereof (as such Exhibit A may also be amended from time to time by mutualagreement of you and the Board), and you may serve in charitable or philanthropic capacities orpositions so long as such activities do not conflict with the corporate objectives of the Companyand do not interfere with the performance of your duties hereunder. This Section 1 shall not beconstrued to prevent or prohibit you from managing your personal assets or investments as long assuch activities do not interfere with the performance of your duties hereunder. You and theCompany agree that your position is essential to the Company’s success and that the highest level of performance is required from you. You represent that you are not a
 

 
partyto any agreement that subjects you to any legal obligations or restrictions that would prevent youfrom or limit you in performing your responsibilities under this Agreement.2. Term of Employment. Subject to the terms and conditions of this Agreement, the Companyagrees to continue your employment, and you agree to remain employed by the Company, from theEffective Date until the day prior to the third anniversary of such date (the “***Term***”).Notwithstanding the foregoing, commencing on the Effective Date, the Term shall extend one (1) dayat the end of every day during its length, and each such additional day shall, *ipso facto*, becomepart of (and incorporated within any references to) the Term, unless either party sends a writtennotice to the other party of such party’s desire to terminate such extensions in accordance withSection 13(a) hereof (a “***Non-renewal Notice***”), in which case the Termination Date (as defined inSection 5 hereof) shall be three (3) years from the date of the Non-renewal Notice unless, prior tothe expiration of such three (3)-year period, your employment is terminated pursuant to Section5(a), (b) or (c) hereof. In the event of any termination of your employment pursuant to the termsof Section 5(a), (b) or (c) hereof, the Term shall be deemed to have ended as of the applicableTermination Date.3. Compensation.     (a) Base Compensation. You will be entitled to receive base compensation (“***BaseCompensation***”) during the Term. Your Base Compensation for the first year of the Term shall be atthe annual rate of Five Hundred Thousand Dollars ($500,000) per year. Your Base Compensation shallbe paid in equal biweekly installments, less deductions required by law. On or about February1st of each year during the Term, the Compensation Committee of the Board (the***“Compensation Committee***”) will review and increase (but not decrease) your Base Compensation in anamount no less than the then-current Base Compensation multiplied by the percentage change in theConsumer Price Index (“***CPI***”) of the calendar year prior to the calendar year in which such increaseshall take effect to January 1 of the current calendar year in which such increase shall takeeffect, and your annual Base Compensation for the remainder of the Term shall not be less than anysuch increased amount. Such review shall be in accordance with criteria to be determined in thesole discretion of the Compensation Committee after consideration of the compensation levels ofexecutives at other similarly situated New York Stock Exchange-listed companies and appropriateconsultation with you.     (b) Bonus Compensation. On an annual basis, you shall be entitled to receive anadditional cash payment (less deductions required by law) (“***Bonus Compensation***”) that shall bedetermined by the Compensation Committee, after appropriate consultation with you and after anevaluation of your contribution to the Company’s goals and objectives over the priortwelve(12)-month period. For each year of the Term, your target Bonus Compensation will be equalto fifty percent (50%) of your annualized Base Compensation for the applicable year of the Term(“***Target Bonus Compensation***”). No later than January 31 of the year following each year of theTerm, all awards of Bonus Compensation for the prior year shall be determined by the CompensationCommittee and payment of your Bonus Compensation shall be made by the Company no later than thirty(30) days after your award has been determined by the Compensation Committee. Your BonusCompensation may exceed your Base Compensation in any year. All decisions regarding theperformance criteria to be used to determine awards of Bonus Compensation and the actual amount of
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yourannual Bonus Compensation shall be made by the Compensation Committee, after appropriateconsultation with you. In the event of your termination that results in your Termination Datebeing a date other than December 31 of the final year of the Term, your Bonus Compensation shall beprorated for such year by multiplying your Bonus Compensation for the full year by a fraction, thenumerator of which is the number of calendar days that you were employed in such final year and thedenominator of which is 365.     (c) The Company shall establish a grantor (or “rabbi”) trust for the benefit of you (the***“Trust***”) into which you may elect to have deposited all or a portion of any compensation paid toyou under the terms of this Agreement or any other agreements between the Company and you that arereferenced herein, including, without limitation, any Base Compensation or Bonus Compensationpayable in cash; provided, however, that you make timely elections to have such funds deposited inthe Trust in accordance with applicable Federal tax deferral rules. The Trust shall be establishedby the Company prior to date of the execution of this Agreement and shall contain termssubstantially similar to those set forth in Exhibit B attached hereto, except that the Company maymake any changes to the terms of the Trust reasonably necessary for its proper administration,including, but not limited to, changes to assure the appropriate tax consequences to you and theCompany, provided such changes do not affect your rights thereunder in any materially adversemanner.     (d) The Committee shall determine annually the amount, if any, to be paid to you as anindividual performance award (the “***Individual Performance Award***”) in recognition of yourperformance and your service to the Company. The Committee shall determine the amount of theIndividual Performance Award based on the criteria set forth in Exhibit C attached hereto.4. Employee Benefits; Expenses.     (a) During the Term, you shall be eligible for vacation and paid holidays in accordance withCompany policy and to participate in Company employee benefit plans, perquisites and executivecompensation programs at the highest levels that the Company provides to its senior executives,including, but not limited to, the Company’s health and dental insurance plans (which includefamily coverage at the Company’s sole expense), stock option plan, split dollar life insuranceplan, executive long term disability plan, deferred compensation and 401(k) plans (including theCompany’s agreement to (i) contribute the maximum permissible amount to your account under theCompany’s 401(k) plan subject to the applicable Federal limitations and subject to the generallyapplicable terms and conditions of the Company’s 401(k) plan, which are subject to change at theCompany’s discretion at any time, and (ii) allocate to you under the Company’s deferredcompensation plan the amount necessary, if any, to provide that the sum of the amount contributedby the Company to your account under the Company’s 401(k) plan and the amount allocated to you bythe Company under the Company’s deferred compensation plan shall equal five percent (5%) of the sumof your Base Compensation plus Bonus Compensation before taxes), subject to the generallyapplicable terms and conditions of the plan or program in question and to the determinations of theCompensation Committee administering such plan or program.
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     (b) The Company shall reimburse you for all ordinary and reasonable business expenses paid byyou in connection with the performance of your duties in accordance with, and subject to, theCompany’s expense reimbursement policies then in effect for senior executives.5. Termination of Employment. Subject to the provisions of Sections 7 and 8 hereof, anystock option agreement(s) entered between the Company and you pursuant to a duly authorized stockoption plan of the Company (the “***Stock Option Agreement(s)***”), any deferred compensation agreementsentered into by the Company and you pursuant to a duly authorized deferred compensation plan (the***“Deferred Compensation Plan Agreement(s)***”) and that certain Amended and Restated Allied CapitalCorporation Split Dollar Life Insurance Agreement, dated as of October 30, 2000, by and between theCompany and you (the “***Split Dollar Life Insurance Agreement***”), upon the effective date oftermination of your employment with the Company (the “***Termination Date***”), you will not be eligiblefor further compensation, benefits or perquisites under Sections 3 and 4 of this Agreement, otherthan those that have already accrued or vested (as result of accelerated vesting or otherwise) onor before the Termination Date. Termination of your employment may occur under any of thefollowing circumstances:     (a) Company’s Termination of Employment. Notwithstanding the terms of Section 2hereof, subject to the provisions of this Section 5 and Sections 7 and 8 hereof, the Company hasthe right to terminate your employment at any time, with or without Cause. For all purposes underthis Agreement, “***Cause***” shall mean: (i) a willful failure by you substantially to perform your dutiesunder this Agreement, other than a failure resulting from your complete orpartial incapacity due to physical or mental illness or impairment, whichfailure is materially injurious to the Company and which continues on anuninterrupted basis for more than thirty (30) days after written notice by theCompany to you specifying in reasonable detail your claimed failure; provided,however, that you shall have no authority to bind the Company during the thirty(30) days after written notice is delivered hereunder;  (ii) a willful act by you, which constitutes embezzlement orcriminal fraud and which is materially injurious to the Company;  (iii) your ineligibility to serve as employee, officer or directorof the Company pursuant to Section 9 of the Investment Company Act of 1940, asamended; or  (iv) a breach by you of your duty of loyalty to the Company, whichbreach is materially injurious to the Company and continues unremedied for morethan thirty (30) days after written notice by the Company to you specifying inreasonable detail such breach; provided, however, that you shall have noauthority to bind the Company during the thirty (30) days after written noticeis delivered hereunder.
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No act, or failure to act, by you shall be considered “willful” if done in good faith and with areasonable belief that the act or omission was lawful and in the Company’s best interest. If theCompany terminates your employment for any reason other than for Cause or if the Company delivers aNon-renewal Notice pursuant to Section 2 hereof, you shall receive the Severance Payments inaccordance with Section 7 hereof and, if applicable, Section 8 hereof. Any determination of Causeunder this Agreement shall be made by a resolution duly adopted by the affirmative vote of at leasttwo-thirds (2/3) of the members of the Board (not including you if you are a member of the Board)at a meeting of the Board called and held for that purpose; provided, that you shall have beengiven written notice of such meeting in accordance with Section 13(a) hereof at least ten (10)business days prior to the meeting and shall have been given the opportunity to be heard by theBoard before any such resolution is passed. Any failure by the Company to follow the proceduresset forth in this Section 5(a) in connection with a termination of your employment shall result insuch termination being deemed to be a termination by the Company without Cause under thisAgreement.     (b) Your Termination of Employment. Notwithstanding the terms of Section 2 hereof,you have the right to terminate your employment with the Company at any time for any reason. Ifyou terminate your employment (other than (x) for Good Reason (as defined herein) or (y) due toyour death or Disability), you will not be entitled to any Severance Payments. “***Good Reason***” shallmean that, within the sixty (60) days prior to your notice of termination (or, with respect toclause (v) of this Section 5(b) only, the twenty-four (24) months after a Change of Control): (i) you have been assigned duties that are materially inconsistentwith your position or have been given instructions that, if implemented by you,would result in a breach of your fiduciary duties to the Company, whichinconsistent assigned duties or instructions shall have remained uncorrectedfor a period of thirty (30) days after written notice by you to the Companyspecifying in reasonable detail your dispute with such assigned duties orinstructions;  (ii) your office has been relocated to a location more than fifteen(15) miles from your current office;  (iii) you are demoted from the position of Chief Financial Officer;  (iv) you cease to be nominated to continue as a member of the Board;  (v) a Change of Control (as defined in Section 6 hereof) hasoccurred;  (vi) the Company breaches any of its obligations to you underSection 3 or 4 of this Agreement or breaches any material obligation under anyother agreement between the Company and you, including, but not limited to,that certain Indemnification Agreement, dated as of even date herewith, by andbetween the Company and you in the form attached hereto as Exhibit D (the“***Indemnification Agreement***”), which breach continues for more than thirty (30)days after written
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   notice by you to the Company specifying in reasonable detail such breach; (vii) the Company fails to maintain its directors’ and officers’liability insurance policy(ies) at levels commensurate with the Company’s pastpractices and in accordance with standard industry practice for New York StockExchange-listed companies of the same or similar type and with similar riskfactors as the Company, which failure continues for more than thirty (30) daysafter written notice by you to the Company;  (viii) your Base Compensation or the percentage of your Target Bonus Compensation inrelation to your Base Salary shall have been reduced or the criteria fordetermining Individual Performance Awards, which criteria are set forth inExhibit C attached hereto, are materially modified; or  (ix) William L. Walton ceases to be Chairman of the Board and ChiefExecutive Officer of the Company other than due to his death or Disability.Your continued employment after an event constituting Good Reason shall not constitute your consentto, or a waiver by you of your rights with respect to, any circumstance constituting Good Reason,unless you fail to give notice of your termination for Good Reason within the time limits set forthabove.     (c) Death or Disability. Notwithstanding the terms of Section 2 hereof, youremployment shall be deemed to have been terminated by you upon your (i) death or (ii) inability toperform your duties under this Agreement due to your physical or mental illness or impairment, evenwith reasonable accommodation, for more than twenty-six (26) substantially consecutive weeks in anytwelve (12)-month period (“***Disability***”). For purposes of this Section 5(c), the Termination Datewill be the date of your death or on the date after the substantially consecutive 26thweek that you receive notice of Disability, as applicable.     (d) Notice of Termination. (i) You agree to provide the Company thirty (30) days’ priorwritten notice of any termination by you. The Company may, in its solediscretion, select any date prior to the end of such thirty (30)-day noticeperiod as the Termination Date.  (ii) The Company agrees to provide thirty (30) days’ prior writtennotice of its intention to terminate this Agreement without Cause pursuant tothis Section 5 and, unless otherwise agreed to by the parties, the TerminationDate shall become effective on the date that is thirty (30) days after suchnotice. In the event that the Board undertakes a determination of whetherCause exists pursuant to Section 5(a) hereof, the Company shall send writtennotice to you no later than one (1) business day after the Board passes aresolution finding that
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   Cause exists in accordance therewith and the Termination Date shall becomeeffective on the date that such resolution is passed by the Board.6. Change of Control. “***Change of Control***” shall mean the occurrence of any of thefollowing events after the Effective Date of this Agreement:     (a) the sale or other disposition of all or substantially all of the Company’s assets;     (b) the acquisition, whether directly, indirectly, beneficially (within the meaning of rule13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)) or of record, as aresult of a merger, consolidation or otherwise, of securities of the Company representing fifteenpercent (15%) or more of the aggregate voting power of the Company’s then-outstanding Common Stockby any “person” (within the meaning of Sections 13(d) and 14(d) of the 1934 Act), including, butnot limited to, any corporation or group of persons acting in concert, other than (i) the Companyor its subsidiaries and/or (ii) any employee pension benefit plan (within the meaning of Section3(2) of the Employee Retirement Income Security Act of 1974) of the Company or its subsidiaries,including a trust established pursuant to any such plan; or     (c) The individuals who were members of the Board as of the Effective Date (the “***IncumbentBoard***”) cease to constitute at least two-thirds (2/3) of the Board; provided, however, that anydirector appointed by at least two-thirds (2/3) of the then Incumbent Board or nominated by at leasttwo-thirds (2/3) of the Nominating Committee of the Board (a majority of the members of theNominating Committee shall be the then Incumbent Board or appointees thereof), other than anydirector appointed or nominated in connection with, or as a result of, a threatened or actual proxyor control contest, shall be deemed to constitute a member of the Incumbent Board.7. Severance Payments. If, during the Term, the Company terminates your employment for anyreason other than Cause, or you terminate your employment for Good Reason, or your employment isterminated due to your death or Disability, or either party sends a Non-renewal Notice pursuant toSection 2 hereof, you shall be entitled to receive the applicable payments and benefit coveragedescribed in this Section 7 (the “***Severance Payments***”); subject to your delivery of a release inthe form attached hereto as Exhibit E (the “***Release***”) within forty-five (45) days after yourTermination Date.     (a) If, during the Term, the Company terminates your employment for any reason (other thanCause or as a result of a Non-renewal Notice pursuant to Section 2 hereof) or you terminate youremployment for Good Reason, you shall be entitled to receive the sum of: (i) an amount (less deductions required by law) equal to threetimes (3x) the average of the sum of (A) your Base Compensation for the lastthree (3) fiscal years of the Company (as reflected on the Company’s books forsuch fiscal years), plus (B) your Bonus Compensation for the last three (3)fiscal years of the Company (as reflected on the Company’s books for suchfiscal years); plus
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 (ii) an amount (less deductions required by law) equal to OneMillion Five Hundred Thousand Dollars ($1,500,000).The Company shall pay the amounts set forth in this Section 7(a) as follows: (x) seventy-fivepercent (75%) of such amounts shall be paid in a lump sum on the later of (A) thirty (30) daysfollowing your Termination Date or (B) ten (10) days after you deliver to the Company the Release,regardless of whether the Company has signed the Release and (y) the remaining twenty-five percent(25%) of such amounts shall be paid on the second (2nd) anniversary of your TerminationDate.     (b) If your employment terminates as a result of your death or Disability or either party hassent a Non-renewal Notice pursuant to Section 2 hereof and this Agreement has not otherwise beenterminated pursuant to any other provision hereof prior to the three (3)-year period after the dateof any such Non-renewal Notice, you or your beneficiary, personal or legal representatives orestate, as the case may be, shall be entitled to receive the sum of: (i) an amount (less deductions required by law) equal to one times(1x) the average of the sum of (A) your Base Compensation for the last three(3) fiscal years of the Company (as reflected on the Company’s books for suchfiscal years), plus (B) your Bonus Compensation for the last three (3) fiscalyears of the Company (as reflected on the Company’s books for such fiscalyears); plus  (ii) an amount (less deductions required by law) equal to OneMillion Five Hundred Thousand Dollars ($1,500,000).Notwithstanding the foregoing, in the event that a Non-renewal Notice has been given by the Companyprior to your death or Disability, in lieu of the one times (1x) multiple contained in Sections7(b)(i) hereof, the multiple shall be the remaining number of years between the date of your deathor Disability and the third anniversary of the date of the Non-renewal Notice, but in no event lessthan one (1) year. The Company shall pay the amounts set forth in this Section 7(b) as follows:(x) seventy-five percent (75%) of such amounts shall be paid in a lump sum no later than sixty (60)days following your Termination Date or, in the event of termination due to your Disability, on thelater of (A) sixty (60) days following your Termination Date or (B) ten (10) days after you (or inthe event of your death, your personal or legal representative) deliver to the Company the Release,regardless of whether the Company has signed the Release and (y) the remaining twenty-five percent(25%) of such amounts shall be paid on the first (1st) anniversary of your TerminationDate; provided, however, that one hundred percent (100%) of such amounts shall be paid to yourpersonal or legal representatives or your estate in accordance with time periods set forth hereinif your employment is terminated due to your death.     (c) Benefits. Provided that you and your eligible family members make a timelyelection to continue your health and dental insurance benefits under the Company’s group healthplans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and theregulations issued thereunder (“***COBRA***”), the Company will pay your COBRA premiums for the maximumperiod of continuation coverage provided under COBRA, and pay the full cost for substantiallyequivalent health and dental insurance
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benefits for six (6) months after such maximum continuation coverage period expires. Thesepayments will be made directly to the insurance carrier beginning on the first pay period followingyour Termination Date. In addition, in the event that the Company terminates your employmentwithout Cause, or you terminate your employment for Good Reason or your employment terminates dueto your death or Disability, or the Term expires in accordance with this Agreement after thedelivery of a Non-renewal Notice by either party, you (or your personal or legal representatives)shall receive the benefits (including, but not limited to, family health and dental insurancecoverage at the sole expense of the Company, stock option plan, split dollar life insurance plan,executive long term disability plan, deferred compensation and 401(k) plans (including theCompany’s agreement to (i) contribute the maximum permissible amount to your account under theCompany’s 401(k) plan subject to the applicable Federal limitations and subject to the generallyapplicable terms and conditions of the Company’s 401(k) plan, which are subject to change at theCompany’s discretion at any time, and (ii) allocate to you under the Company’s deferredcompensation plan the amount necessary, if any, to provide that the sum of the amount contributedby the Company to your account under the Company’s 401(k) plan and the amount allocated to you bythe Company under the Company’s deferred compensation plan shall equal five percent (5%) of the sumof your Base Compensation plus Bonus Compensation before taxes)) and other perquisites set forth inSection 4(a) hereof (except to the extent that any such benefits are duplicative of the health anddental insurance coverage set forth in the preceding sentence) for a period of one (1) year afterthe Termination Date.     (d) No Mitigation. You shall not be required to mitigate the amount of any payment orbenefits contemplated by this Section 7, nor shall any such payment or benefits be reduced by anyearnings that you may receive from any other source.8. Tax Equalization Payment.     In addition to the amounts payable under Section 7 hereof, the Company shall pay you a taxequalization payment (“***Tax Equalization Payment***”) in accordance with this Section 8. The TaxEqualization Payment shall be in an amount that, when added to the other amounts payable to youunder Section 7 and any other amounts to which you are entitled pursuant to the Stock OptionAgreement(s), the Deferred Compensation Plan Agreement(s) and the Split Dollar Life InsuranceAgreement, will place you in the same after-tax position as if all taxes payable on such amounts byyou, including, without limitation, Federal and state income and employment-related taxes andpayments (assuming the highest marginal Federal and state income tax rates then applicable to you)and any excise taxes payable under Section 4999 of the Internal Revenue Code of 1986, as amended(the “***Code***”), or any successor statute of similar import, did not apply to any of the amountspayable under Section 7 and under and pursuant to the Stock Option Agreement(s), the DeferredCompensation Plan Agreement(s) and the Split Dollar Life Insurance Agreement (including any amountspaid under this Section 8). The amount of this Tax Equalization Payment shall be determined by theCompany’s independent accountants and shall be remitted to the applicable Federal, state and localtax jurisdictions.
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9. Confidential Information and Non-Disparagement.     (a) You shall not disclose or use any confidential information (“***Confidential Information***”)(defined below) of the Company, whether patentable or not, which you learn as a result of youremployment with the Company, whether or not you developed such information. ConfidentialInformation shall include, without limitation, information regarding the Company’s, its customers’or its business partners’ trade secrets and **•** any information about existing and prospective investments;  **•** financing information and sources;  **•** patent applications, developmental or experimental work, formulas, test data,prototypes, models, and product specifications;  **•** financial information;  **•** financial projections and pro forma financial information;  **•** sales and marketing strategies, plans and programs and product development information;  **•** employees’ and consultants’ benefits, perquisites, salaries, stock options,compensation, formulas or bonuses, and their non-business addresses and telephonenumbers;  **•** organizational structure and reporting relationships; and  **•** business plans.Information that is or later becomes publicly available in a manner wholly unrelated to any breachof this Agreement by you (including, but not limited to, any and all information contained in anypublic filing pursuant to Federal or state securities laws) shall not be considered ConfidentialInformation as of the date it enters the public domain. In addition, notwithstanding theforegoing, any information, including, but not limited to, financing information and sources, whichis generally known within the financial industry will not be considered Confidential Information.If you are uncertain whether something is Confidential Information, you should treat it asConfidential Information until you receive clarification from the Company that it is notConfidential Information. Confidential Information shall remain at all times the property of theCompany. You may use or disclose Confidential Information only: (i) as authorized and necessary in performing your responsibilitiesunder this Agreement during your employment with the Company;  (ii) with the Board’s prior written consent;  (iii) in a legal proceeding between you and the Company to establishthe rights of either party under this Agreement; provided, that you
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   stipulate to a protective order to prevent any unnecessary use ordisclosure; or (iv) subject to a compulsory legal process that requires disclosureof such information; provided, that you have complied with the followingprocedures to ensure that the Company has an adequate opportunity to protectits legal interests in preventing disclosure.Upon receipt of a subpoena that could possibly require disclosure of Confidential Information, youshall provide a copy of the compulsory process and complete information regarding the circumstancesunder which you received it to the Company by hand delivery within two (2) business days after suchreceipt or as soon thereafter as is reasonably practicable. You will not make any disclosure untilthe latest possible date for making such disclosure in accordance with the compulsory process(“***Latest Possible Date***”), unless otherwise agreed to by a duly authorized representative of theCompany, which person need not be the Chairman of the Compensation Committee. If the Company seeksto prevent disclosure in accordance with the applicable legal procedures, and provides you withnotice before the Latest Possible Date that it has initiated such procedures, you will not makedisclosures of any Confidential Information that is the subject of such procedures, until suchobjections are withdrawn or ruled on or unless you are otherwise required to make such disclosure.You hereby acknowledge that any breach of this Section 9(a) may cause the Company irreparable harm.     (b) Non-Disparagement. During the Term, neither of the parties shall in any way,manner or form, directly or indirectly, disparage or defame the other party and, in your case, anydirector, officer or employee of the Company; provided, however, that this Section shall notprohibit you from making a good faith assessment of the person’s performance of his or her dutiesfor the Company and where such assessment is necessary to fulfill your duties to the Company.After the Term, neither of the parties shall in any way, manner or form, directly or indirectly,disparage or defame the other party and, in your case, any directors, officers or employees of theCompany.10. Non-Solicitation.     (a) Commencing on the Effective Date and continuing for a period of two (2) years after theTermination Date (if the Company terminates your employment with or without Cause or you terminateyour employment with or without Good Reason) or (ii) one (1) year after the Termination Date (ifyour employment terminates due to your Disability or the Term expires in accordance with thisAgreement after the delivery of a Non-renewal Notice by either party) (“***Restricted Period***”), youwill not, directly or indirectly, individually or as a part of or on behalf of any other person,company, employer or other entity: (i) hire or attempt to solicit for hire (other than on behalf ofthe Company), any person who is employed by the Company within six (6) monthsprior to such action until at least six (6) months after the person’semployment with the Company ends (“***Covered Employee***”); or
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 (ii) solicit, encourage or attempt to persuade any consultant,vendor, client or customer to terminate or adversely modify its existingrelationship with the Company, except during the Term where you are authorizedto do so and have a reasonable good faith belief that such termination ormodification is in the best interests of the Company.     (b) If, during the Restricted Period, any Covered Employee accepts employment with any person,company, employer or other entity of which you are an officer, director, employee, partner,shareholder (other than of less than 5% of the stock in a publicly traded company) or jointventurer, it will be presumed that the Covered Employee was hired in violation of this provision(“***Presumption***”). This Presumption may be overcome by your showing by a preponderance of theevidence that you were not directly or indirectly involved in soliciting or encouraging the CoveredEmployee to leave employment with the Company.     (c) You agree to notify any person or entity to which you provide services during theRestricted Period of the terms of your obligations, if any, under this Section 10. The partiesagree that any breach of this Section 10 will entitle the Company to an injunction without bondenforcing this Section 10 or for breaching Section 10(a) the Company shall be entitled toliquidated damages equal to the amount of the annual total compensation of any person solicited orhired in breach of Section 10(a). The parties are agreeing to liquidated damages as an option toactual damages in recognition that the Company’s employees are among its most valuable assets, butit is often difficult to prove the actual damages resulting from such breach.11. Indemnification.     Commencing on the Effective Date and at all times thereafter, you shall be indemnified by theCompany pursuant to the Indemnification Agreement. You shall be a beneficiary of a commerciallyavailable directors’ and officers’ liability insurance policy maintained by the Company, on termsand conditions deemed appropriate by the Board, with the advice of counsel, as long as you remainan officer or director and any periods thereafter for acts relating to the period of time in whichyou served as an officer and/or director.12. Return of Property.     Upon termination of your employment with the Company for any reason, you agree to return tothe Company or destroy (pursuant to the Company’s instructions) all property belonging to theCompany in your possession within not more than thirty (30) days. This includes without limitationall equipment, materials, credit cards and all documents and other information prepared by you oron your behalf or provided to you in connection with performing your responsibilities as set forthin Section 1(b) of this Agreement, regardless of the form in which such documents or informationare maintained or stored, including computer, typed, written, imaged, audio, video, micro-fiche,electronic or any other means of recording or storing documents or other information. You herebyagree that you will not retain in any written, printed or electronic or similar form any suchdocument or other information or copies thereof; provided, however that you may retain a copy ofthis
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Agreement and information describing any rights you may have after the Termination Date under anyemployee benefit plan.13. Miscellaneous Provisions.     (a) Notices. Unless otherwise provided herein, any notice or other information to beprovided to the Company will be sent via nationally recognized overnight delivery service, withacknowledgement of receipt requested, to:Chairman of the Compensation Committee