RULES 26 THROUGH 37 OF THE FEDERAL RULES OF
CIVIL PROCEDURE. IN THE EVENT THAT EITHER PARTY FAILS TO COMPLY WITH ITS
DISCOVERY OBLIGATIONS HEREUNDER, THE ARBITRATOR(S) SHALL HAVE FULL POWER AND
AUTHORITY TO COMPEL DISCLOSURE OR IMPOSE SANCTIONS TO THE FULL EXTENT OF RULE 37
OF THE FEDERAL RULES OF CIVIL PROCEDURE.
ARTICLE VIII.
NO SET-OFF OR MITIGATION
8.1
NO SET-OFF BY COMPANY. EXECUTIVE'S RIGHT TO RECEIVE WHEN DUE THE
PAYMENTS AND OTHER BENEFITS PROVIDED FOR UNDER THIS AGREEMENT IS ABSOLUTE,
UNCONDITIONAL AND SUBJECT TO NO SETOFF, COUNTERCLAIM OR LEGAL OR EQUITABLE
DEFENSE. TIME IS OF THE ESSENCE IN THE PERFORMANCE BY THE COMPANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT. ANY CLAIM WHICH THE COMPANY MAY HAVE
25
AGAINST EXECUTIVE, WHETHER FOR A BREACH OF THIS AGREEMENT OR OTHERWISE, SHALL BE
BROUGHT IN A SEPARATE ACTION OR PROCEEDING AND NOT AS PART OF ANY ACTION OR
PROCEEDING BROUGHT BY EXECUTIVE TO ENFORCE ANY RIGHTS AGAINST THE COMPANY UNDER
THIS AGREEMENT.
8.2
NO MITIGATION. EXECUTIVE SHALL NOT HAVE ANY DUTY TO MITIGATE THE
AMOUNTS PAYABLE BY THE COMPANY UNDER THIS AGREEMENT BY SEEKING NEW EMPLOYMENT OR
SELF-EMPLOYMENT FOLLOWING TERMINATION. EXCEPT AS SPECIFICALLY OTHERWISE PROVIDED
IN THIS AGREEMENT, ALL AMOUNTS PAYABLE PURSUANT TO THIS AGREEMENT SHALL BE PAID
WITHOUT REDUCTION REGARDLESS OF ANY AMOUNTS OF SALARY, COMPENSATION OR OTHER
AMOUNTS WHICH MAY BE PAID OR PAYABLE TO EXECUTIVE AS THE RESULT OF EXECUTIVE'S
EMPLOYMENT BY ANOTHER EMPLOYER OR SELF-EMPLOYMENT.
ARTICLE IX.
CONFIDENTIALITY AND NONCOMPETITION
9.1
CONFIDENTIAL INFORMATION. THE EXECUTIVE ACKNOWLEDGES THAT IN THE
COURSE OF PERFORMING SERVICES FOR THE COMPANIES AND AFFILIATES, HE MAY CREATE,
DEVELOP, LEARN OF, RECEIVE OR CONTRIBUTE NON-PUBLIC INFORMATION, IDEAS,
PROCESSES, METHODS, DESIGNS, DEVICES, INVENTIONS, DATA, MODELS AND OTHER
INFORMATION RELATING TO THE COMPANIES AND THEIR AFFILIATES OR THEIR PRODUCTS,
SERVICES, BUSINESSES, OPERATIONS, EMPLOYEES OR CUSTOMERS, WHETHER IN TANGIBLE OR
INTANGIBLE FORM, AND THAT THE COMPANIES OR THEIR AFFILIATES DESIRE TO PROTECT
AND KEEP SECRET AND CONFIDENTIAL, INCLUDING TRADE SECRETS AND INFORMATION FROM
THIRD PARTIES THAT THE COMPANIES OR THEIR AFFILIATES ARE OBLIGATED TO KEEP
CONFIDENTIAL ("CONFIDENTIAL INFORMATION"). CONFIDENTIAL INFORMATION SHALL NOT
INCLUDE: (I) INFORMATION THAT IS OR BECOMES GENERALLY KNOWN THROUGH NO FAULT OF
EXECUTIVE; (II) INFORMATION RECEIVED FROM A THIRD PARTY OUTSIDE OF THE COMPANIES
THAT WAS DISCLOSED WITHOUT A BREACH OF ANY CONFIDENTIALITY OBLIGATION; OR (III)
INFORMATION APPROVED FOR RELEASE BY WRITTEN AUTHORIZATION OF ANY COMPANY. THE
EXECUTIVE RECOGNIZES THAT ALL SUCH CONFIDENTIAL INFORMATION IS THE SOLE AND
EXCLUSIVE PROPERTY OF THE COMPANIES AND THEIR AFFILIATES, AND THAT DISCLOSURE OF
CONFIDENTIAL INFORMATION WOULD CAUSE DAMAGE TO THE COMPANIES AND THEIR
AFFILIATES. THE EXECUTIVE AGREES THAT, EXCEPT (I) AS REQUIRED BY THE DUTIES OF
HIS EMPLOYMENT WITH ANY OF THE COMPANIES OR ANY OF THEIR AND/OR ITS AFFILIATES,
(II) IN CONNECTION WITH ENFORCING THE EXECUTIVE'S RIGHTS UNDER THIS AGREEMENT OR
(III) IF COMPELLED BY A COURT OR GOVERNMENTAL AGENCY, HE WILL NOT, WITHOUT THE
CONSENT OF PFG, WILLFULLY DISSEMINATE OR OTHERWISE DISCLOSE, DIRECTLY OR
INDIRECTLY, ANY CONFIDENTIAL INFORMATION OBTAINED DURING HIS EMPLOYMENT WITH ANY