and notwithstanding anything elsewhere appearing in
this Agreement, nothing herein shall prevent or hinder Executive's full
cooperation with any investigation or other proceeding by any federal, state or
local governmental agency, including, but not limited to, the ongoing
investigation by the U.S. Securities and Exchange Commission.
10.
NO ADMISSION OF LIABILITY.
The parties agree and acknowledge that this Agreement is a full and complete
compromise of the matters released herein between the parties hereto; that
neither the releases nor the negotiations for this Agreement and the settlement
embodied herein, including all statements or communications made to date, shall
be considered admissions by them.
11.
CONFIDENTIALITY.
(A)
EXECUTIVE ACKNOWLEDGES THAT THE
INFORMATION, OBSERVATIONS AND DATA THAT HAS BEEN OBTAINED BY HIM DURING HIS
INVOLVEMENT WITH THE COMPANY AS AN EMPLOYEE CONCERNING THE BUSINESS OR AFFAIRS
OF THE COMPANY WHICH HAS NOT BEEN RELEASED PUBLICLY BY AUTHORIZED
REPRESENTATIVES OF THE COMPANY ("CONFIDENTIAL INFORMATION") IS THE PROPERTY OF
THE COMPANY.
ACCORDINGLY, EXECUTIVE AGREES, ON BEHALF OF HIMSELF AND ANY
5
AFFILIATE, THAT HE WILL NOT DISCLOSE TO ANY PERSON NOT AUTHORIZED BY THE COMPANY
TO RECEIVE SUCH CONFIDENTIAL INFORMATION, OR USE FOR HIS OWN ACCOUNT, ANY OF THE
CONFIDENTIAL INFORMATION PREVIOUSLY OBTAINED DURING HIS EMPLOYMENT OR WHICH IS
HEREAFTER OBTAINED DURING THE CONSULTING TERM WITHOUT THE PRIOR WRITTEN CONSENT
OF THE COMPANY, UNLESS, AND TO THE EXTENT THAT, THE AFOREMENTIONED MATTERS
(I) ARE OR BECOME GENERALLY KNOWN TO AND AVAILABLE FOR USE BY THE PUBLIC
OTHERWISE THAN AS A DIRECT OR INDIRECT RESULT OF EXECUTIVE'S ACTS OR OMISSIONS
TO ACT IN THE PROTECTION OF SUCH CONFIDENTIAL INFORMATION OR (II) ARE DISCLOSED
TO EXECUTIVE BY A THIRD PARTY WHO, TO THE BEST KNOWLEDGE OF EXECUTIVE, IS NOT
THEREBY IN BREACH OF ANY DUTY TO THE COMPANY OR ANY OF ITS AFFILIATES.
FOR
PURPOSES OF THIS AGREEMENT, THE TERM "AFFILIATE" MEANS ANY PERSON, PARTNERSHIP,
CORPORATION OR BUSINESS ENTITY CONTROLLING, CONTROLLED BY OR UNDER COMMON
CONTROL WITH THE COMPANY OR EXECUTIVE, AS THE CASE MAY BE.
(B)
EXECUTIVE ACKNOWLEDGES THAT THE CONFIDENTIAL
INFORMATION IS PROPRIETARY AND OF VALUE TO THE COMPANY AND, ACCORDINGLY,
EXECUTIVE WILL FOLLOW REASONABLE SECURITY PRACTICES WITH REGARD TO THE
PROTECTION AND NON-DISCLOSURE OF THE CONFIDENTIAL INFORMATION.
IF EXECUTIVE IS
REQUIRED TO DISCLOSE ANY CONFIDENTIAL INFORMATION IN ACCORDANCE WITH APPLICABLE
LAW, EXECUTIVE WILL, WHENEVER POSSIBLE, FIRST PROVIDE TO THE COMPANY A COPY OF
THE PROPOSED DISCLOSURE SO THAT THE COMPANY MAY HAVE A SUFFICIENT OPPORTUNITY TO
REVIEW AND COMMENT THEREON AND EXECUTIVE AGREES TO SEEK SUCH MAXIMUM
CONFIDENTIAL TREATMENT OF SUCH DISCLOSURE AS NEOPHARM REQUESTS OR AS MAY BE
PERMITTED BY APPLICABLE LAW.
EXECUTIVE'S OBLIGATIONS UNDER THIS ARTICLE WILL
SURVIVE ANY TERMINATION OF THIS AGREEMENT.
(C)
UPON COMPLETION OR EARLIER TERMINATION OF
THIS AGREEMENT, EXECUTIVE WILL PROMPTLY RETURN TO NEOPHARM ALL WRITTEN OR
ELECTRONIC CONFIDENTIAL INFORMATION, AS WELL AS ALL WRITTEN OR ELECTRONIC
MATERIAL WHICH INCORPORATES ANY CONFIDENTIAL INFORMATION.
12.
OWBPA RIGHTS.
(A)
EXECUTIVE IS ADVISED TO SEEK LEGAL COUNSEL
REGARDING THE TERMS OF THIS AGREEMENT. EXECUTIVE ACKNOWLEDGES THAT HE HAS EITHER