CIVIL, CRIMINAL, ADMINISTRATIVE, OR
INVESTIGATIVE THAT THE EXECUTIVE IS MADE A PARTY TO BY REASON OF THE FACT THAT
HE IS OR WAS PERFORMING SERVICES AS AN OFFICER OR DIRECTOR OF THE COMPANY.
SUCH
INDEMNIFICATION SHALL CONTINUE AS TO THE EXECUTIVE EVEN IF HE HAS CEASED TO BE
AN EMPLOYEE, OFFICER, OR DIRECTOR OF THE COMPANY AND SHALL INURE TO THE BENEFIT
OF HIS HEIRS AND ESTATE.
(B)
ANY COSTS, FEES OR EXPENSES INCURRED BY THE EXECUTIVE RELATING TO
INDEMNIFICATION UNDER THE COMPANY'S CERTIFICATE OF INCORPORATION, AS AMENDED, OR
THE COMPANY'S BYLAWS, AS AMENDED, SHALL BE PAID BY THE COMPANY IN ADVANCE AS
SOON AS PRACTICABLE BUT NOT LATER THAN THREE BUSINESS DAYS AFTER RECEIPT OF
WRITTEN REQUEST OF THE EXECUTIVE; PROVIDED THAT THE EXECUTIVE SHALL UNDERTAKE TO
REPAY SUCH AMOUNT TO THE EXTENT THAT IT IS ULTIMATELY DETERMINED BY A COURT OF
COMPETENT JURISDICTION THAT THE EXECUTIVE IS NOT ENTITLED TO INDEMNIFICATION.
SUBJECT TO APPLICABLE LAW, THE EXECUTIVE'S RIGHT TO INDEMNIFICATION OR ADVANCES
FROM THE COMPANY SHALL BE ENFORCEABLE BY THE EXECUTIVE IN ANY COURT OF COMPETENT
JURISDICTION.
THE BURDEN OF PROVING THAT INDEMNIFICATION OR ADVANCES ARE NOT
APPROPRIATE SHALL BE ON THE COMPANY.
(C)
THE PROVISIONS OF THIS SECTION 9 ARE IN ADDITION TO, AND NOT IN
DEROGATION OF, THE INDEMNIFICATION PROVISIONS OF THE COMPANY'S CERTIFICATE OF
INCORPORATION, AS AMENDED, THE COMPANY'S BYLAWS, AS AMENDED, AND THE
INDEMNIFICATION AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE (THE
"INDEMNIFICATION AGREEMENT").
10.
NO MITIGATION.
THE COMPANY AGREES THAT, IF THE EXECUTIVE'S
EMPLOYMENT IS TERMINATED HEREUNDER, THE EXECUTIVE IS NOT REQUIRED TO SEEK OTHER
EMPLOYMENT OR TO ATTEMPT IN ANY WAY TO REDUCE ANY AMOUNTS PAYABLE TO THE
EXECUTIVE BY THE COMPANY.
FURTHERMORE, THE
7
AMOUNT OF ANY PAYMENT PROVIDED HEREUNDER SHALL NOT BE REDUCED BY ANY
COMPENSATION EARNED BY THE EXECUTIVE.
11.
CONFIDENTIAL INFORMATION.
THE EXECUTIVE ACKNOWLEDGES THAT THE
INFORMATION, OBSERVATIONS AND DATA OBTAINED BY HIM WHILE EMPLOYED BY THE COMPANY
OR ANY SUBSIDIARY (INCLUDING THOSE OBTAINED PRIOR TO THE DATE OF THIS AGREEMENT
CONCERNING THE BUSINESS OR AFFAIRS OF THE COMPANY, OR ANY OF ITS SUBSIDIARIES
(COLLECTIVELY, "CONFIDENTIAL INFORMATION")) ARE THE PROPERTY OF THE COMPANY AND
SUCH SUBSIDIARIES.
THEREFORE, THE EXECUTIVE AGREES THAT HE SHALL NOT (DURING
HIS EMPLOYMENT WITH THE COMPANY OR AT ANY TIME THEREAFTER) DISCLOSE TO ANY
UNAUTHORIZED PERSON OR USE FOR HIS OWN PURPOSES ANY CONFIDENTIAL INFORMATION
WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF THE BOARD, UNLESS AND TO THE EXTENT
THAT THE AFOREMENTIONED MATTERS: (A) BECOME GENERALLY KNOWN TO AND AVAILABLE FOR
USE BY THE PUBLIC OTHER THAN AS A RESULT OF THE EXECUTIVE'S ACTS OR OMISSIONS OR
(B) ARE REQUIRED TO BE DISCLOSED BY JUDICIAL PROCESS OR LAW.
THE EXECUTIVE
SHALL DELIVER TO THE COMPANY AT THE TERMINATION OF HIS EMPLOYMENT, OR AT ANY
OTHER TIME THE COMPANY MAY REQUEST, ALL MEMORANDA, NOTES, PLANS, RECORDS,
REPORTS, COMPUTER TAPES, PRINTOUTS AND SOFTWARE AND OTHER DOCUMENTS AND DATA
(AND COPIES THEREOF) RELATING TO THE CONFIDENTIAL INFORMATION, WORK PRODUCT (AS
DEFINED BELOW) OR THE BUSINESS OF