SUCH TANGIBLE AND INTANGIBLE PROPERTY OF ANY DESCRIPTION
WHATSOEVER. IF, FOLLOWING THE DATE OF THIS AGREEMENT, EXECUTIVE SHALL RECEIVE
ANY MAIL, INCLUDING, BUT NOT LIMITED TO, ELECTRONIC MAIL, ADDRESSED TO THE
COMPANY OR TO THE EXECUTIVE AS AN OFFICER OF THE COMPANY, EXECUTIVE SHALL
IMMEDIATELY DELIVER, OR FORWARD, SUCH MAIL, UNOPENED, AND IN ITS ORIGINAL
ENVELOPE OR PACKAGE, TO THE COMPANY;
(D)
THE COMPANY HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS, IN
ACCORDANCE WITH DELAWARE LAW AND THE ARTICLES OF INCORPORATION AND BY-LAWS OF
THE COMPANY, THE EXECUTIVE FROM AND AGAINST ANY AND ALL ACTIONS, SUITS,
PROCEEDINGS, CLAIMS, DEMANDS, JUDGMENTS, EXPENSES (INCLUDING REASONABLE ATTORNEY
FEES), LOSSES AND DAMAGES ARISING OR RESULTING FROM EXECUTIVE'S GOOD FAITH
PERFORMANCE OF HIS DUTIES AS EXECUTIVE VICE PRESIDENT AND CFO OF THE COMPANY.
9.
NO VOLUNTARY ASSISTANCE.
Executive hereby covenants and agrees that, except under compulsion of law, he
will not voluntarily assist, support, or cooperate with, directly or indirectly,
any entity or person alleging or pursuing any claim, administrative charge, or
cause of action against the Company, including without limitation, by providing
testimony or other information, audio or video recordings, or documents. If
compelled to testify, nothing contained herein shall in any way inhibit or
interfere with Executive providing completely truthful testimony or producing
documents. In addition, 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.
5
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 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