EXECUTIVE MAY DIVULGE ANY INFORMATION REQUIRED
BY LAW TO BE DIVULGED BY HIM TO ANY GOVERNMENT COMMISSION, AGENCY OR OTHER
REGULATORY BODY OR PURSUANT TO A SUBPOENA; PROVIDED, HOWEVER, THAT, UNLESS IT IS
NOT FEASIBLE UNDER THE CIRCUMSTANCES, PRIOR TO DIVULGING ANY SUCH INFORMATION,
EXECUTIVE SHALL ADVISE EMPLOYER'S GENERAL COUNSEL THAT A REQUEST HAS BEEN MADE
AND COOPERATE WITH EMPLOYER, IF REQUESTED, IN EMPLOYER'S EFFORTS TO SEEK
PROTECTIVE RELIEF AGAINST THE DIVULGENCE OF ANY SUCH INFORMATION.
IN ANY EVENT,
UNLESS PROHIBITED BY LAW, EXECUTIVE WILL KEEP EMPLOYER FULLY ADVISED OF ANY
CONTACTS FROM ANY SUCH GOVERNMENT AGENCY, COMMISSION OR REGULATORY BODY, AND ANY
INFORMATION GIVEN BY HIM TO THE SAME.
3.5
DISPARAGING REMARKS.
EXECUTIVE AND EMPLOYER AGREE THAT NEITHER
SHALL DIRECTLY OR INDIRECTLY MAKE DISPARAGING REMARKS ABOUT THE OTHER PARTY OR
THEIR RESPECTIVE EMPLOYERS, EMPLOYEES, DIRECTORS, OFFICERS, PRODUCTS OR SERVICES
(AS APPLICABLE) TO ANY PERSON OR ENTITY OR DIRECTLY OR INDIRECTLY MAKE OR
SOLICIT ANY COMMENTS, STATEMENTS OR THE LIKE TO THE MEDIA OR OTHER THIRD PARTIES
WHICH MAY BE CONSIDERED DEROGATORY OR DETRIMENTAL.
THIS PROVISION SHALL NOT
APPLY TO SWORN TESTIMONY GIVEN IN A COURT PROCEEDING OR COMPELLED UNDER
SUBPOENA.
4
4.
NON-COMPETITION & NON-SOLICITATION.
4.1
NON-COMPETITION.
4.1.1
WITHOUT LIMITING THE GENERALITY OF ANY OTHER PROVISION HEREOF, THE
PARTIES ACKNOWLEDGE AND AGREE THAT THE NON-COMPETITION PROVISIONS IN SECTION 6
OF THE EMPLOYMENT AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL THE
OFFICER TERMINATION DATE; PROVIDED, HOWEVER, THAT, EMPLOYER AGREES THAT
EXECUTIVE MAY SPEND A REASONABLE AMOUNT OF TIME, DURING BUSINESS HOURS OR
OTHERWISE, ON THE FORMATION OF HIS NEW BUSINESS SO LONG AS SUCH EFFORTS DO NOT
UNREASONABLY INTERFERE WITH HIS DUTIES HEREUNDER AND ARE LIMITED TO SUCH MATTERS
AS MAY BE MUTUALLY AGREED UPON BY EMPLOYER AND EXECUTIVE.
4.1.2
FOLLOWING THE OFFICER TERMINATION DATE, EXECUTIVE SHALL HAVE NO
RESTRICTIONS ON HIS ABILITY TO COMPETE WITH EMPLOYER EXCEPT WITH RESPECT TO
CERTAIN OPPORTUNITIES THAT MAY BE MUTUALLY AGREED UPON BY EMPLOYER AND
EXECUTIVE.
4.2
NON-SOLICITATION.
FROM THE DATE HEREOF THROUGH THE SECOND
ANNIVERSARY OF THE TERMINATION DATE, EXECUTIVE WILL NOT, EXCEPT WITH THE PRIOR
WRITTEN CONSENT OF EMPLOYER, DIRECTLY OR INDIRECTLY, SOLICIT OR HIRE, OR
ENCOURAGE THE SOLICITATION OR HIRING OF, ANY PERSON WHO IS, OR WAS WITHIN A SIX
MONTH PERIOD PRIOR TO SUCH SOLICITATION OR HIRING, AN EXECUTIVE OR MANAGEMENT
EMPLOYEE OF EMPLOYER OR ANY OF ITS AFFILIATES FOR ANY POSITION AS AN EMPLOYEE,
INDEPENDENT CONTRACTOR, CONSULTANT OR OTHERWISE , OR INDUCE ANY SUCH PERSON TO
TERMINATE HIS OR HER EMPLOYMENT RELATIONSHIP WITH EMPLOYER OR ANY OF ITS
AFFILIATES OR TO BREACH HIS OR HER EMPLOYMENT AGREEMENT WITH EMPLOYER OR ANY OF
ITS AFFILIATES.
5.
NO ADMISSIONS.
THE TERMS OF THIS AGREEMENT ARE NOT TO BE
CONSIDERED AS AN ADMISSION ON BEHALF OF EITHER PARTY.
NEITHER THIS AGREEMENT
NOR ITS TERMS SHALL BE ADMISSIBLE AS EVIDENCE OF ANY LIABILITY OR WRONGDOING BY
EITHER PARTY OR ANY OF THE RELEASEES IN ANY JUDICIAL, ADMINISTRATIVE OR OTHER
PROCEEDING NOW PENDING OR HEREAFTER INSTITUTED BY ANY PERSON OR