TO SECTIONS
4(A)(B) AND (C) ABOVE SHALL ONLY BE PAYABLE IF THE EXECUTIVE EXECUTES AND
DELIVERS TO THE COMPANY AN ACCEPTANCE FORM AND RELEASE IN THE FORM ATTACHED
HERETO AS EXHIBIT A DISCHARGING ALL CLAIMS OF THE EXECUTIVE WHICH MAY HAVE
OCCURRED UP TO THE DATE OF TERMINATION (WITH SUCH CHANGES THEREIN AS MAY BE
NECESSARY TO MAKE IT VALID AND ENCOMPASSING UNDER APPLICABLE LAW) WITHIN THE
APPROPRIATE TIME DESCRIBED IN THE ACCEPTANCE FORM AND RELEASE PRESENTED BY THE
COMPANY TO THE EXECUTIVE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF
THE EXECUTIVE MATERIALLY BREACHES ANY OF THE PROVISIONS OF SECTION 10 OF THIS
AGREEMENT, THE COMPANY MAY CEASE ALL PAYMENTS AND BENEFITS DUE TO THE EXECUTIVE
THEREAFTER UNDER SECTIONS 4(A)(B) AND (C) ABOVE (OTHER THAN AS REQUIRED BY LAW).
9.
NO DUTY TO MITIGATE/SET-OFF.
OTHER
THAN AS SET FORTH IN SECTION 4(A)(C), THE COMPANY AGREES THAT IF THE EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY IS TERMINATED PURSUANT TO THIS AGREEMENT DURING THE
TERM OF THIS AGREEMENT, THE EXECUTIVE SHALL NOT BE REQUIRED TO SEEK OTHER
EMPLOYMENT OR TO ATTEMPT IN ANY WAY TO REDUCE ANY AMOUNTS PAYABLE TO THE
EXECUTIVE BY THE COMPANY PURSUANT TO THIS AGREEMENT.
FURTHER, THE AMOUNT OF ANY
PAYMENT OR BENEFIT PROVIDED FOR IN THIS AGREEMENT SHALL NOT BE REDUCED BY ANY
COMPENSATION EARNED BY THE EXECUTIVE OR BENEFIT PROVIDED TO THE EXECUTIVE AS THE
RESULT OF EMPLOYMENT BY ANOTHER EMPLOYER OR OTHERWISE.
EXCEPT AS OTHERWISE
PROVIDED HEREIN AND APART FROM ANY DISAGREEMENT BETWEEN THE EXECUTIVE AND THE
COMPANY CONCERNING INTERPRETATION OF THIS AGREEMENT OR ANY TERM OR PROVISION
HEREOF, THE COMPANY'S OBLIGATIONS TO MAKE THE PAYMENTS PROVIDED FOR IN THIS
AGREEMENT AND OTHERWISE TO PERFORM ITS OBLIGATIONS HEREUNDER SHALL NOT BE
AFFECTED BY ANY CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, ANY SET-OFF,
COUNTERCLAIM, RECOUPMENT, DEFENSE OR
7
OTHER RIGHT WHICH THE COMPANY MAY HAVE AGAINST THE EXECUTIVE.
THE AMOUNTS DUE
UNDER SECTION 4 ARE INCLUSIVE, AND IN LIEU OF, ANY AMOUNTS PAYABLE UNDER ANY
OTHER SALARY CONTINUATION OR CASH SEVERANCE ARRANGEMENT OF THE COMPANY AND TO
THE EXTENT PAID OR PROVIDED UNDER ANY OTHER SUCH ARRANGEMENT SHALL BE OFFSET
AGAINST THE AMOUNT DUE HEREUNDER.
10.
CONFIDENTIALITY, NON-COMPETITION,
NON-SOLICITATION AND COOPERATION.
(A)
DURING THE EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY AND THEREAFTER, THE EXECUTIVE AGREES NOT TO, DIRECTLY OR INDIRECTLY, FOR
ANY REASON WHATSOEVER, COMMUNICATE OR DISCLOSE TO ANY UNAUTHORIZED PERSON, FIRM
OR CORPORATION, OR USE FOR THE EXECUTIVE'S OWN ACCOUNT, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE BOARD OR THE CHIEF EXECUTIVE OFFICER OF THE COMPANY (THE
"CEO"), ANY PROPRIETARY PROCESSES, TRADE SECRETS OR OTHER CONFIDENTIAL DATA OR
INFORMATION OF THE COMPANY AND ITS RELATED AND AFFILIATED COMPANIES CONCERNING
THEIR BUSINESSES OR AFFAIRS, ACCOUNTS, PRODUCTS, SERVICES OR CUSTOMERS, IT BEING
UNDERSTOOD, HOWEVER, THAT THE OBLIGATIONS OF THIS SECTION 10(A) SHALL NOT APPLY
TO THE EXTENT THAT THE AFORESAID MATTERS (I) ARE DISCLOSED IN CIRCUMSTANCES IN
WHICH THE EXECUTIVE IS LEGALLY REQUIRED TO DO SO, PROVIDED THAT THE EXECUTIVE
GIVES THE COMPANY PROMPT WRITTEN NOTICE OF RECEIPT OF NOTICE