|8. || |
Covenants and Agreements.
8.1 Incorporation by Reference. Subject to Section 9, the covenants and agreements set forth in Sections 6.1 through 6.5 and Section 6.7 of the Employment Agreement (the Restrictive Covenants) are incorporated herein by reference as if such provisions were set forth herein in full. Notwithstanding the foregoing, the Company and Executive agree that (a) Executive shall be subject to the Restrictive Covenants at all times during the Consulting Period, and (b) the non-competition and non-solicitation covenants in Sections 6.2, 6.3 and 6.4 of the Employment Agreement shall expire on December 31, 2022.
8.2 Non-Disparagement. Subject to Section 9, Executive agrees to refrain from making, directly or indirectly, now or at any time in the future, whether in writing, orally or electronically (a) any derogatory comment concerning the Company Group or any of its current or former directors, officers, employees, or shareholders or (b) any other comment that could reasonably be expected to be detrimental to the business or financial prospects or reputation of the Company Group. In addition, the Company agrees to instruct the Board to refrain from making, directly or indirectly, now or at any time in the future, whether in writing, orally or electronically (x) any derogatory comment concerning Executive or (y) any other comment that could reasonably be expected to be detrimental to Executive or his reputation. Nothing in the foregoing shall preclude either Executive or the Company from providing truthful disclosures required by applicable law or legal process.
8.3 Confidentiality of this Agreement. Subject to Section 9, Executive agrees that, except to enforce the terms of this Agreement or as may be required by applicable law or legal process, Executive shall not disclose the terms of this Agreement to any person other than Executives accountants, financial advisors, or attorneys; provided that such accountants, financial advisors, and attorneys agree not to disclose the terms of this Agreement to any other person or entity.
8.4 Return of Property. All files, records, documents, manuals, books, forms, reports, memoranda, studies, data, calculations, recordings, or correspondence, whether visually perceptible, machine-readable or otherwise, in whatever form they may exist, and all copies, abstracts and summaries of the foregoing, and all physical items related to the business of the Company, whether of a public nature or not, and whether prepared by Executive or not, are and shall remain the exclusive property of the Company, and shall not be removed from its premises, except as required in the course of Executives employment by the Company, without the prior written consent of the Company. No later than the Retirement Date, such items, including any copies or other reproductions thereof, shall be promptly returned by Executive to the Company (or, if requested by the Company, destroyed by Executive). Notwithstanding the foregoing, Executive shall retain the computer and phone provided by the Company.
9. Confidential Disclosure in Reporting Violations of Law or in Court Filings. Executive acknowledges and the Company agrees that Executive may disclose Confidential Information (as such term is defined in the Employment Agreement) in confidence, directly or indirectly, to federal, state, or local government officials, including but not limited to the Department of Justice, the Securities and Exchange Commission (the SEC), the Congress, and any agency Inspector General or to an attorney, for the sole purpose of reporting or investigating a suspected violation of law or regulation or making other disclosures that are protected under the whistleblower provisions of state or federal laws or regulations. Executive may also disclose Confidential Information in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal. Nothing in this Agreement is intended to conflict with federal law protecting confidential disclosures of a trade secret to the government or in a court filing, 18 U.S.C. § 1833(b), or to create liability for disclosures of Confidential Information that are expressly allowed by 18 U.S.C. § 1833(b).