EVENT SHALL THE EXECUTIVE BE OBLIGATED TO
SEEK OTHER EMPLOYMENT OR TAKE ANY OTHER ACTION BY WAY OF MITIGATION OF THE
AMOUNTS PAYABLE TO THE EXECUTIVE UNDER ANY OF THE PROVISIONS OF THIS AGREEMENT
AND, EXCEPT AS OTHERWISE PROVIDED IN SUBSECTIONS 5(A)(IV) AND 15(E), THE AMOUNT
OF ANY PAYMENT OR BENEFIT PROVIDED FOR IN THIS AGREEMENT SHALL NOT BE REDUCED BY
ANY COMPENSATION EARNED BY THE EXECUTIVE AS THE RESULT OF EMPLOYMENT BY ANOTHER
EMPLOYER, BY RETIREMENT BENEFITS, BY OFFSET AGAINST ANY AMOUNT CLAIMED TO BE
OWED BY THE EXECUTIVE TO THE COMPANY, OR OTHERWISE.
10.
NON-COMPETITION; CONFIDENTIAL INFORMATION; AND NON-SOLICITATION.
(A)
NON-COMPETITION.
DURING THE TERM OF EMPLOYMENT AND FOR THE ONE
(1) YEAR PERIOD FOLLOWING THE DATE OF TERMINATION FOR ANY REASON, THE EXECUTIVE
SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, AS A SHAREHOLDER,
OFFICER, DIRECTOR, PARTNER, CONSULTANT, EMPLOYEE OR OTHERWISE, ENGAGE IN ANY
BUSINESS OR ENTERPRISE WHICH IS "IN COMPETITION" (AS DEFINED BELOW) WITH THE
COMPANY, ITS AFFILIATES, OR THEIR SUCCESSORS OR ASSIGNS (SUCH ENTITIES
COLLECTIVELY REFERRED TO HEREINAFTER IN THIS SECTION 10 AS THE "COMPANY") IN THE
STATES OF NEW YORK AND NEW JERSEY; PROVIDED, HOWEVER, THAT THE EXECUTIVE'S
OWNERSHIP OF LESS THAN FIVE PERCENT OF THE ISSUED AND OUTSTANDING VOTING
SECURITIES OF A PUBLICLY TRADED COMPANY SHALL NOT, IN AND OF ITSELF, BE DEEMED
TO CONSTITUTE SUCH COMPETITION.
A BUSINESS OR ENTERPRISE IS DEEMED TO BE "IN
COMPETITION" IF IT IS ENGAGED IN ANY BUSINESS IN WHICH THE COMPANY EITHER (I) IS
ENGAGED IN AS OF THE DATE OF TERMINATION OR (II) AS OF THE DATE OF TERMINATION,
CONTEMPLATES ENGAGING IN WITHIN ONE (1) YEAR FOLLOWING THE DATE OF TERMINATION.
(B)
CONFIDENTIAL INFORMATION.
THE EXECUTIVE SHALL HOLD IN A FIDUCIARY
CAPACITY FOR THE BENEFIT OF THE COMPANY ALL SECRET OR CONFIDENTIAL INFORMATION,
KNOWLEDGE, TRADE SECRETS, METHODS, KNOW-HOW OR DATA RELATING TO THE COMPANY OR
ITS AFFILIATES AND THEIR BUSINESSES OR ACQUISITION PROSPECTS THAT THE EXECUTIVE
OBTAINED OR OBTAINS DURING THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY
("CONFIDENTIAL INFORMATION"), PROVIDED THAT "CONFIDENTIAL INFORMATION" SHALL NOT
INCLUDE ANY SECRET OR CONFIDENTIAL INFORMATION, KNOWLEDGE, TRADE SECRETS,
METHODS, KNOW-HOW OR DATA THAT IS OR BECOMES GENERALLY KNOWN
TO THE PUBLIC (OTHER THAN AS A RESULT OF THE EXECUTIVE'S VIOLATION OF THIS
SECTION 10).
EXCEPT AS MAY BE REQUIRED AND APPROPRIATE IN CONNECTION WITH
CARRYING OUT HIS DUTIES UNDER THIS AGREEMENT, THE EXECUTIVE SHALL NOT
COMMUNICATE, DIVULGE, OR DISSEMINATE ANY MATERIAL CONFIDENTIAL INFORMATION AT
ANY TIME DURING OR AFTER THE EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, EXCEPT
WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY OR AS OTHERWISE REQUIRED BY LAW OR
LEGAL PROCESS; PROVIDED, HOWEVER, THAT IF SO REQUIRED, THE EXECUTIVE WILL
PROVIDE THE COMPANY WITH REASONABLE NOTICE TO CONTEST SUCH DISCLOSURE.
(C)
NON-SOLICITATION.
DURING THE TERM OF EMPLOYMENT AND FOR THE ONE
(1) YEAR PERIOD FOLLOWING THE DATE OF TERMINATION FOR ANY REASON, THE EXECUTIVE
WILL NOT, DIRECTLY OR INDIRECTLY, INITIATE ANY ACTION TO SOLICIT OR RECRUIT
ANYONE WHO IS THEN AN EMPLOYEE OF THE COMPANY FOR