THAT CERTAIN EMPLOYMENT AGREEMENT, DATED
AS OF JANUARY 1, 2005, BETWEEN THE CONSULTANT AND THE COMPANY, AS AMENDED (THE
"EMPLOYMENT AGREEMENT"), SHALL REMAIN IN FULL FORCE AND EFFECT AND IS HEREBY
VERIFIED AND CONFIRMED IN ALL RESPECTS.
9.
COVENANTS, REPRESENTATIONS AND WARRANTIES.
THE CONSULTANT HEREBY
COVENANTS, REPRESENTS AND WARRANTS THAT:
(A)
THE CONSULTANT IS NOT UNDER ANY PRE-EXISTING OBLIGATION
INCONSISTENT WITH THE PROVISIONS OF THIS AGREEMENT.
(B)
THE CONSULTANT HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO
AND PERFORM THIS AGREEMENT WITHOUT VIOLATING OR INFRINGING ANY THIRD PARTY
RIGHTS.
(C)
DURING THE TERM OF THIS AGREEMENT, THE CONSULTANT WILL COMPLY WITH
ALL LAWS AND REGULATIONS IN THE COURSE OF HIS PERFORMANCE OF THIS AGREEMENT, AND
THE CONSULTING SERVICES PERFORMED HEREUNDER WILL BE PERFORMED, TO THE BEST OF
THE CONSULTANT'S ABILITY, IN A TIMELY, COMPLETE, PROFESSIONAL AND WORKMANLIKE
MANNER, IN ACCORDANCE WITH INDUSTRY STANDARDS AND IN THE BEST INTERESTS OF THE
COMPANY.
(D)
DURING THE TERM OF THIS AGREEMENT, THE CONSULTANT WILL NOT DEFAME,
DISPARAGE, LIBEL OR SLANDER, OR MAKE ANY NEGATIVE OR DEROGATORY STATEMENTS
CONCERNING, THE COMPANY OR ANY OF ITS STOCKHOLDERS, DIRECTORS, OFFICERS,
EMPLOYEES, REPRESENTATIVES, AGENTS OR AFFILIATES (INCLUDING ANY OF THEIR
RESPECTIVE PRODUCTS, SERVICES, CUSTOMERS, SUPPLIERS, LICENSORS, EMPLOYEES OR
AGENTS).
10.
CONFIDENTIAL INFORMATION.
(A)
THE CONSULTANT ACKNOWLEDGES AND AGREES THAT IN THE COURSE OF THE
PERFORMANCE OF THE CONSULTING SERVICES PURSUANT TO THIS AGREEMENT THE CONSULTANT
MAY BE GIVEN ACCESS TO, OR COME INTO POSSESSION OF, SECRET OR CONFIDENTIAL
INFORMATION OF THE COMPANY, WHICH INFORMATION MAY CONSIST OF PROPRIETARY DATA OR
OTHER CONFIDENTIAL INFORMATION RELATIVE TO THE ACTIVITIES OF THE COMPANY
(COLLECTIVELY, "CONFIDENTIAL INFORMATION").
THE CONSULTANT FURTHER ACKNOWLEDGES
AND AGREES THAT HE WILL NOT USE, DISTRIBUTE, DUPLICATE, DIVULGE OR DISCLOSE IN
ANY MANNER, OR PERMIT ANY THIRD PARTY ACCESS TO, ANY SUCH CONFIDENTIAL
INFORMATION, EXCEPT IN CONNECTION WITH THE PERFORMANCE OF THE CONSULTING
SERVICES UNDER THIS AGREEMENT AND SO LONG AS THE SECRET OR CONFIDENTIAL NATURE
OF SUCH CONFIDENTIAL INFORMATION IS PRESERVED.
(B)
THE CONSULTANT MUST NOTIFY THE COMPANY IMMEDIATELY UPON
DISCOVERING ANY BREACH OF THIS AGREEMENT OR UNAUTHORIZED USE OF CONFIDENTIAL
INFORMATION, AND MUST USE HIS BEST EFFORTS, AND AID THE COMPANY, TO RECOVER
POSSESSION OF THE CONFIDENTIAL INFORMATION, AND TO PREVENT FURTHER DISSEMINATION
AND UNAUTHORIZED USE.
(C)
THE CONSULTANT AGREES THAT A VIOLATION BY THE CONSULTANT OF THIS
SECTION 10 WILL CAUSE IRREPARABLE INJURY TO THE COMPANY AND THAT THE COMPANY
SHALL BE ENTITLED (WITHOUT THE POSTING OF BOND OR ANY OTHER FORM OF SECURITY) TO
SEEK BOTH PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF ENJOINING AND RESTRAINING
THE CONSULTANT FROM DOING OR CONTINUING TO DO ANY SUCH ACT AND ANY OTHER
VIOLATIONS OR THREATENED VIOLATIONS OF THIS SECTION 10.
THE REMEDIES SET
3
FORTH IN THIS SECTION 10 SHALL BE IN ADDITION TO, RATHER THAN IN LIEU OF, ANY
OTHER RIGHTS AND REMEDIES THE PARTIES MAY HAVE AT LAW OR IN EQUITY.
11.
INDEMNIFICATION.
(A)
THE COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS THE CONSULTANT
(INCLUDING HIS AFFILIATES) FROM AND AGAINST, AND PAY OR REIMBURSE