OF TERMINATION
INDICATED IN THE NOTICE OF TERMINATION BY THE COMPANY; PROVIDED, THAT THE
EXECUTIVE MUST GIVE THE COMPANY WRITTEN NOTICE OF THE DATE OF TERMINATION IF HE
DEEMS IT TO HAVE OCCURRED PRIOR TO THE DATE OF TERMINATION INDICATED IN THE
NOTICE OF TERMINATION.
8.
ACCEPTANCE AND RELEASE.
ANY AND ALL AMOUNTS PAYABLE AND
BENEFITS OR ADDITIONAL RIGHTS PROVIDED PURSUANT 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
7
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 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