SUCH PAYMENTS HAVE BEEN RELEASED, WAIVED OR
SETTLED BY ANKER PURSUANT TO THIS AGREEMENT.
9.
MITIGATION AND SET OFF.
IN THE EVENT THAT ANKER OBTAINS
EMPLOYMENT OR CONSULTING/ADVISORY WORK DURING THE PERIOD FROM THE DATE HEREOF
UNTIL MARCH 16, 2007 THE CORPORATION REMAINS OBLIGATED TO MAKE THE SEVERANCE
PAYMENT HEREUNDER, CORPORATION SHALL BE ENTITLED TO SET OFF AGAINST AND REDUCE
THE AMOUNT OF THE SEVERANCE PAYMENT SO REMAINING TO BE PAID (BUT NOT THE BONUS),
BY AN AMOUNT EQUAL TO ALL BASE SALARY AMOUNTS PAID OR PAYABLE TO ANKER IN
RESPECT OF SUCH PERIOD (WHENEVER PAID) FOR SUCH EMPLOYMENT OR
CONSULTANCY/ADVISORY WORK.
In the event that Anker obtains employment or consulting/advisory work during
the period the Corporation remains obligated to make payments pursuant to
Section 4 hereof, and such employment or consultancy/advisory work affords
Anker's eligibility to participate in other group health plan coverage generally
comparable to that covered by Section 4, Anker shall obtain such other coverage,
provide the Corporation with at least 30 days notice of the effective date of
such other coverage, and the Corporation shall have no obligation to pay the
COBRA coverage expenses under Section 4 hereof for any period after such
effective date.
10.
MISCELLANEOUS.
(A)
ANKER COVENANTS AND AGREES THAT HE SHALL AT ALL TIMES COOPERATE
WITH AND ASSIST THE CORPORATION IN THE DEFENSE OF ANY AND ALL LEGAL PROCEEDINGS
ARISING FROM FACTS AND CIRCUMSTANCES OF WHICH HE HAD KNOWLEDGE WHILE EMPLOYED BY
THE CORPORATION.
THE CORPORATION SHALL REIMBURSE ANKER FOR ANY OUT-OF-POCKET
EXPENSES INCURRED BY HIM IN CONNECTION WITH SUCH COOPERATION AND ASSISTANCE.
(B)
THE PARTIES HERETO AGREE TO MAINTAIN THE TERMS OF THIS AGREEMENT
AS CONFIDENTIAL AND NEITHER PARTY, NOR ANY PERSON OR ENTITY ACTING ON SUCH
PARTY'S BEHALF, SHALL DISCLOSE SUCH TERMS TO ANY THIRD PARTY, EXCEPT TO SUCH
PARTY'S SPOUSE, ATTORNEY, ACCOUNTANT OR FINANCIAL ADVISOR OR AS MAY BE REQUIRED
BY LAW.
(C)
THIS AGREEMENT SHALL NOT IN ANY WAY BE CONSTRUED AS AN ADMISSION
BY THE CORPORATION THAT IT HAS ACTED WRONGFULLY WITH RESPECT TO ANKER OR THAT
ANKER HAS ANY RIGHTS WHATSOEVER AGAINST THE CORPORATION, AND THE CORPORATION
SPECIFICALLY DISCLAIMS ANY LIABILITY FOR ANY WRONGFUL ACTS AGAINST ANKER ON THE
PART OF ITSELF, ITS EMPLOYEES OR ITS AGENTS.
(D)
ANKER AGREES THAT NEITHER HE, NOR ANYONE ACTING ON HIS BEHALF,
SHALL HEREAFTER (I) MAKE ANY DEROGATORY, DISPARAGING OR CRITICAL STATEMENT ABOUT
THE CORPORATION OR THE BUSINESS OF THE CORPORATION OR ANY OF THE CORPORATION'S
OFFICERS, DIRECTORS OR EMPLOYEES OR ANY PERSONS WHO WERE OFFICERS, DIRECTORS OR
EMPLOYEES OF THE CORPORATION OR (II) COMMUNICATE, DIRECTLY OR INDIRECTLY, WITH
THE PRESS OR OTHER MEDIA CONCERNING THE PAST OR PRESENT EMPLOYEES OR BUSINESS OF
THE CORPORATION.
3
(E)
THE CORPORATION AGREES THAT NEITHER IT, NOR ANYONE ACTING ON THE
CORPORATION'S BEHALF, SHALL HEREAFTER MAKE ANY DEROGATORY, DISPARAGING OR
CRITICAL STATEMENT ABOUT ANKER.
(F)
IF NOT REVOKED IN ACCORDANCE WITH PARAGRAPH 7(A), THE COVENANTS,
REPRESENTATIONS AND ACKNOWLEDGMENTS CONTAINED HEREIN SHALL SURVIVE THE EXECUTION
AND DELIVERY OF THIS AGREEMENT.
(G)
THIS