to or for the benefit of the Executive, whether
paid or payable pursuant to this Agreement or otherwise.
(iv)
The "Safe Harbor Amount" means 2.99 times the
Executive's "base amount," within the meaning of Section 280G(b)(3) of the Code.
SECTION 9.
CONFIDENTIAL INFORMATION.
THE EXECUTIVE SHALL HOLD IN A FIDUCIARY CAPACITY FOR THE BENEFIT OF THE COMPANY
ALL SECRET OR CONFIDENTIAL INFORMATION, KNOWLEDGE OR DATA RELATING TO THE
COMPANY OR THE AFFILIATED COMPANIES, AND THEIR RESPECTIVE BUSINESSES, WHICH
INFORMATION, KNOWLEDGE OR DATA SHALL HAVE BEEN OBTAINED BY THE EXECUTIVE DURING
THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY OR THE AFFILIATED COMPANIES AND WHICH
INFORMATION, KNOWLEDGE OR DATA SHALL NOT BE OR BECOME PUBLIC KNOWLEDGE (OTHER
THAN BY ACTS BY THE EXECUTIVE OR REPRESENTATIVES OF THE EXECUTIVE IN VIOLATION
OF THIS AGREEMENT).
AFTER TERMINATION OF THE EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY, THE EXECUTIVE SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COMPANY OR AS MAY OTHERWISE BE REQUIRED BY LAW OR LEGAL PROCESS, COMMUNICATE OR
DIVULGE ANY SUCH INFORMATION, KNOWLEDGE OR DATA TO ANYONE OTHER THAN THE COMPANY
AND THOSE PERSONS DESIGNATED BY THE COMPANY.
IN NO EVENT SHALL AN ASSERTED
VIOLATION OF THE PROVISIONS OF THIS SECTION 9 CONSTITUTE A BASIS FOR DEFERRING
OR WITHHOLDING ANY AMOUNTS OTHERWISE PAYABLE TO THE EXECUTIVE UNDER THIS
AGREEMENT.
SECTION 10.
SUCCESSORS.
(A)
THIS AGREEMENT
IS PERSONAL TO THE EXECUTIVE, AND, WITHOUT THE PRIOR WRITTEN CONSENT OF THE
COMPANY, SHALL NOT BE ASSIGNABLE BY THE EXECUTIVE OTHER THAN BY WILL OR THE LAWS
OF DESCENT AND DISTRIBUTION.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND
BE ENFORCEABLE BY THE EXECUTIVE'S LEGAL REPRESENTATIVES.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
EXCEPT AS
PROVIDED IN SECTION 10(C), WITHOUT THE PRIOR WRITTEN CONSENT OF THE EXECUTIVE
THIS AGREEMENT SHALL NOT BE ASSIGNABLE BY THE COMPANY.
15
(C)
THE COMPANY WILL REQUIRE ANY SUCCESSOR
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS AND/OR ASSETS OF THE COMPANY TO ASSUME
EXPRESSLY AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THAT THE COMPANY WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION
HAD TAKEN PLACE.
"COMPANY" MEANS THE COMPANY AS HEREINBEFORE DEFINED AND ANY
SUCCESSOR TO ITS BUSINESS AND/OR ASSETS AS AFORESAID THAT ASSUMES AND AGREES TO
PERFORM THIS AGREEMENT BY OPERATION OF LAW OR OTHERWISE.
SECTION 11.
MISCELLANEOUS.
(A)
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
THE
CAPTIONS OF THIS AGREEMENT ARE NOT PART OF THE PROVISIONS HEREOF AND SHALL HAVE
NO FORCE OR EFFECT.
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED OTHER THAN BY
A WRITTEN AGREEMENT EXECUTED BY THE PARTIES HERETO OR THEIR RESPECTIVE
SUCCESSORS AND LEGAL REPRESENTATIVES.
(B)
ALL NOTICES AND OTHER COMMUNICATIONS
HEREUNDER SHALL BE IN WRITING AND SHALL BE GIVEN BY