MODIFY ANY PROVISION OF
THIS AGREEMENT OR TO AWARD A REMEDY FOR A DISPUTE INVOLVING THIS AGREEMENT OTHER
THAN A BENEFIT SPECIFICALLY PROVIDED UNDER OR BY VIRTUE OF THIS AGREEMENT. FEES
OF THE AMERICAN ARBITRATION ASSOCIATION AND THE ARBITRATOR AND ANY EXPENSES
RELATING TO THE CONDUCT OF THE ARBITRATION (INCLUDING THE COMPANY'S AND
EXECUTIVE'S REASONABLE ATTORNEYS' FEES AND EXPENSES) SHALL BE PAID IN ACCORDANCE
WITH SECTION 4(VI).
(II)
FOLLOWING ANY TERMINATION OF EMPLOYMENT OF
EXECUTIVE (OTHER THAN A TERMINATION BY THE COMPANY FOR CAUSE), THE COMPANY SHALL
INDEMNIFY AND HOLD HARMLESS EXECUTIVE TO THE FULLEST EXTENT PERMITTED UNDER THE
COMPANY'S BY-LAWS (AS IN EFFECT PRIOR TO THE CHANGE IN CONTROL) AND APPLICABLE
LAW FOR ANY CLAIMS, COSTS AND EXPENSES ARISING OUT OF OR IN CONNECTION WITH
EXECUTIVE'S EMPLOYMENT WITH THE COMPANY (WITHOUT REGARD TO WHEN SUCH CLAIM IS
ASSERTED OR ISSUE IS RAISED, SO LONG AS IT RELATES TO CONDUCT OR EVENTS THAT
OCCURRED WHILE EXECUTIVE WAS EMPLOYED WITH THE COMPANY) AND SHALL, FOR A PERIOD
OF NOT LESS THAN SIX YEARS FOLLOWING A CHANGE IN CONTROL, MAINTAIN DIRECTORS'
AND OFFICERS' LIABILITY INSURANCE COVERAGE FOR THE BENEFIT OF EXECUTIVE WHICH
PROVIDES HIM WITH COVERAGE, IF ANY, NO LESS FAVORABLE THAN THAT IN EFFECT PRIOR
TO THE CHANGE IN CONTROL; PROVIDED, THAT IF THE COMPANY MAINTAINS DIRECTORS' AND
OFFICERS' LIABILITY INSURANCE COVERAGE FOR OTHER CURRENT OR FORMER OFFICERS OR
DIRECTORS OF THE COMPANY FOLLOWING SUCH SIX-YEAR PERIOD, EXECUTIVE SHALL ALSO BE
PROVIDED WITH SUCH INSURANCE COVERAGE.
13.
CONFIDENTIALITY, COVENANT NOT TO COMPETE AND
NOT TO SOLICIT.
(I)
NONDISCLOSURE OF CONFIDENTIAL
INFORMATION. AT NO TIME DURING THE TERM OF EXECUTIVE'S EMPLOYMENT OR THE 24
MONTH PERIOD FOLLOWING THE EXECUTIVE'S DATE OF TERMINATION, SHALL EXECUTIVE,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, USE, DIVULGE, DISCLOSE OR MAKE
ACCESSIBLE TO ANY OTHER PERSON, FIRM, PARTNERSHIP, CORPORATION OR OTHER ENTITY
ANY CONFIDENTIAL INFORMATION PERTAINING TO THE BUSINESS OF THE COMPANY OR ANY OF
ITS AFFILIATES, EXCEPT (I) WHILE EMPLOYED BY THE COMPANY, IN THE BUSINESS OF AND
FOR THE BENEFIT OF THE COMPANY, OR (II) WHEN REQUIRED TO DO SO BY A COURT OF
COMPETENT JURISDICTION, BY ANY GOVERNMENTAL AGENCY HAVING SUPERVISORY AUTHORITY
OVER THE BUSINESS OF THE COMPANY, OR BY ANY ADMINISTRATIVE BODY OR LEGISLATIVE
BODY (INCLUDING A COMMITTEE THEREOF) WITH JURISDICTION TO ORDER EXECUTIVE TO
DIVULGE, DISCLOSE OR MAKE ACCESSIBLE SUCH INFORMATION. FOR PURPOSES OF THIS
SECTION 13, "CONFIDENTIAL INFORMATION" SHALL MEAN ANY TRADE SECRET OR OTHER
NON-PUBLIC INFORMATION CONCERNING THE FINANCIAL DATA, STRATEGIC BUSINESS PLANS,
PRODUCT DEVELOPMENT (OR OTHER PROPRIETARY PRODUCT DATA), CUSTOMER LISTS,
MARKETING PLANS AND OTHER NON-PUBLIC, PROPRIETARY AND CONFIDENTIAL INFORMATION
OF THE COMPANY OR ITS AFFILIATES, THAT, IN ANY CASE, IS NOT OTHERWISE AVAILABLE
TO THE PUBLIC (OTHER THAN BY EXECUTIVE'S BREACH OF THE TERMS HEREOF) OR KNOWN TO
PERSONS IN THE INDUSTRY GENERALLY.
17
(II)
NON COMPETITION. DURING THE TERM OF
EXECUTIVE'S EMPLOYMENT AND DURING THE 12 MONTH PERIOD IMMEDIATELY FOLLOWING THE
DATE OF ANY TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY, EXECUTIVE
SHALL NOT DIRECTLY