4. Compensation.          4.1 Base Salary. As compensation for Executive’s performance of Executive’s dutieshereunder, Company shall pay to Executive a salary of $500,000 per year, payable in equal monthlyinstallments and in accordance with the normal payroll practices of Company, less requireddeductions for state and federal withholding tax, social security and all other employment taxesand authorized payroll deductions.          4.2 Equity. Subject to approval by Company’s Board of Directors (the “***Board***”), Companywill from time to time grant to Executive various forms of equity awards of Company’s common stock(the “***Equity Awards***”). The Equity Awards will be subject to the terms and conditions of Company’s2005 Performance Incentive Plan, or any other subsequent employee equity plan approved in thefuture by the Board and the Company’s shareholders, as designated by the Board (the “***Plan***”). TheEquity Awards will also be subject to the terms and conditions contained in the applicable forms ofaward agreement adopted by the Board and certain vesting acceleration provisions described in thisAgreement.          4.3 Incentive Compensation. In addition, Executive will also be eligible to receiveincentive compensation subject to the terms and conditions contained in the Executive Bonus Plan,which is approved by the Board and is subject to amendment from time to time by the Board in itssole and absolute discretion (a “***Bonus***”). Unless otherwise provided herein, the payment of anyBonus pursuant to this Section 4.3 shall be made in accordance with the normal payroll practices ofCompany, less required deductions for state and federal withholding tax, social security and allother employment taxes and authorized payroll deductions.          4.4 Performance and Salary Review. The Board will periodically review Executive’sperformance on no less than an annual basis. Adjustments to salary or other compensation, if any,will be made by the Board in its sole and absolute discretion.     5. Customary Fringe Benefits and Facilities. Executive will be entitled to 4 weeks ofpaid vacation, and will be eligible for all customary and usual fringe benefits generally availableto executives of Company, subject to the terms and conditions of Company’s benefit plan documents.Company reserves the right to change or eliminate the fringe benefits on a prospective basis, atany time, effective upon notice to Executive; provided, however, that during the period ofemployment under this Agreement, Executive and his spouse and eligible dependents shall be entitledto receive all benefits of employment generally available to other members of Company’s managementand those benefits for which key executives are or shall become eligible, when and as Executivebecomes eligible therefore, including, without limitation, group health, life and disabilityinsurance benefits and participation in Company’s 401 (k) plan. Company further agrees to furnishExecutive with such assistance and accommodations (*i.e*., an office in the size, type and quality asprovided to Executive prior to the Effective Date) as shall be suitable to the character ofExecutive’s position with Company and adequate for the performance of Executive’s duties hereunder.     6. Business Expenses. Executive will be reimbursed for all reasonable, out-of pocketbusiness expenses incurred in the performance of Executive’s duties on behalf of Company. To obtainreimbursement, expenses must be submitted promptly with appropriate supporting documentation inaccordance with Company’s policies. Any reimbursement Executive is entitled to receive shall (a)be paid no later than the last day of Executive’s tax year following the tax year in which theexpense was incurred, (b) not be affected by any other expenses that are eligible for reimbursementin any tax year and (c) not be subject to liquidation or exchange for another benefit.
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     7. Termination of Executive’s Employment.          7.1 Termination for Cause or upon Death. Company may terminate Executive’s employmentimmediately at any time for Cause. For purposes of this Agreement, “***Cause***” is defined as: (a)theft or material dishonesty relating to the Company or its business, intentional falsification ofany employment or Company records; or improper disclosure of Company’s confidential or proprietaryinformation; (b) Executive’s conviction (including any plea of guilty or *nolo contendere*) for anycriminal act that materially impairs his ability to perform his duties for Company; (c) willfulmisconduct or breach of fiduciary duty for personal profit by Executive, (d) Executive’s materialfailure to abide by the Company’s code of conduct or code of ethics policies resulting indemonstrable injury to the Company or its reputation, or (e) a material breach of this Agreement byExecutive which is not cured within thirty (30) days of receipt by Executive of reasonably detailedwritten notice from Company. Executive’s employment shall terminate upon his death. In the eventExecutive’s employment is terminated for Cause or upon his death, Executive (or his estate ordesignated beneficiaries) shall be entitled to receive only unpaid Base Salary then in effect,prorated to the date of termination, together with any amounts or benefits due upon terminationpursuant to the plans or policies described in Section 5, and for reimbursement of businessexpenses incurred prior to termination to the extent provided in Section 6. Notwithstanding theforegoing, in the event Executive’s employment is terminated due to death arising or occurring, inthe reasonable judgment of the Board or its Compensation Committee in the course of performance byExecutive of his duties hereunder, the Company shall cause the immediate acceleration of thevesting of all Executive’s outstanding earned-but-unvested Equity Awards (as described in Section7.2 below). Except as set forth above, upon termination for Cause or death, all other Companyobligations to Executive pursuant to this Agreement will become automatically terminated andcompletely extinguished. For purposes of clarity, except as specifically set forth in this Section7.1, Executive will not be entitled to receive the Severance Benefits described in Section 7.2below.          7.2 Termination Without Cause by Company. Company may terminate Executive’s employmentunder this Agreement without Cause at any time on sixty (60) days’ advance written notice toExecutive. Upon termination without Cause, Executive will receive the unpaid Base Salary then ineffect, prorated to the effective date of termination (the “***Termination Date***”), together with anyamounts or benefits due upon termination pursuant to the plans or policies described in Section 5,and for reimbursement of business expenses incurred prior to termination to the extent provided inSection 6. In addition, the Company shall (X) pay a lump sum on the forty-fifth (45th)day following such termination in an amount equal to (i) his Base Salary for twenty-four (24)months from the Termination Date, plus (ii) one year’s target Bonus pursuant Section 4.3 of thisAgreement for the calendar year during which the termination occurs, calculated based on the Bonusthat would be paid to Executive if he had not been terminated and if all performance basedmilestones were achieved at the 100% level by both Company and the Executive, such Bonus to be,solely for the purpose of defining Severance Benefits, not less than $600,000, plus (iii) anyunpaid Bonus earned in the year of termination, but not paid as of termination, (Y) cause theimmediate acceleration of the vesting of all of Executive’s outstanding earned-but-unvested EquityAwards; and (Z) in the event that Executive timely elects to obtain continued group healthinsurance coverage for himself and his family under COBRA following termination of employment underthis Section 7.2, pay the premiums for such coverage through the earlier of (i) the date that iseighteen (18) months following the Termination Date, or (ii) the first date on which Executivebecomes eligible for other group health insurance coverage pursuant to Executive’s subsequentemployment (such amounts, accelerated vesting and insurance coverage, together with any amounts towhich Executive is entitled pursuant to Sections 5 or 6 hereof as of the Termination Date, shall bereferred to herein as the “***Severance Benefits***”)*,*provided that (A) Executive executes a fullgeneral release (which shall contain a cross release of the Company), releasing all claims, knownor unknown, that Executive may have against Company arising out of or any way related to thisAgreement or Executive’s employment or termination of employment with Company and such release hasbecome effective in accordance with its terms prior to
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the forty-fifth (45th) day following such termination, in substantially the formattached hereto as Exhibit A, or in another form that is acceptable to Company in its solediscretion, and (B) the Severance Benefits shall be subject to Section 7.7 below. For purposes ofthis agreement, an “earned-but-unvested Equity Award” means an Equity Award or any portion thereofthat remains subject to a substantial risk of forfeiture until both (i) one or more applicablecorporate financial or other business performance goals have been satisfied and (ii) Executive’sservice with the Company has continued through a specified date, and with respect to such EquityAward the condition specified in clause (i) of this sentence has been satisfied but the conditionspecified in clause (ii) of this sentence has not been satisfied. All other Company obligations toExecutive will be automatically terminated and completely extinguished upon termination ofemployment.          7.3 Termination for Good Reason by Executive. Executive may terminate Executive’semployment under this Agreement for Good Reason at any time on five (5) days’ advance writtennotice to Company given within one hundred eighty (180) days following the initial existence of acondition constituting Good Reason. In the event of termination for Good Reason, Executive willreceive the unpaid Base Salary then in effect, prorated to the effective date of termination. Inaddition, Executive will be entitled to receive the Severance Benefits described in Section 7.2,above, provided that Executive complies with the conditions to receiving the Severance Benefitsdescribed in Sections 7.2(A) and 7.2(B) above. All other Company obligations to Executive will beautomatically terminated and completely extinguished upon termination of employment.For purposes of this Agreement, “***Good Reason***” is defined as the occurrence and continuation of anyof the following conditions, provided that Executive has delivered written notice to the Company ofsuch condition within ninety (90) days after its initial existence and the Company has failed tocure such condition within thirty (30) days following such written notice:               (a) a material, adverse change in Executive’s authority, responsibilities or duties; provided,that for purposes of this Agreement and without limiting the generality of the foregoing, amaterial, adverse change shall be deemed to occur if Executive no longer serves as President andChief Executive Officer (who shall be the most senior executive) of a publicly-traded companyreporting directly to the Board;               (b) the relocation of Executive’s work place for Company over Executive’s written objection,to a location more than thirty (30) miles from Scottsdale, Arizona;               (c) a failure to pay, or any material reduction of Executive’s Base Salary or Executive’sBonus without Executive’s written consent (subject to applicable performance requirements withrespect to the actual amount of Bonus earned by Executive); or               (d) any material breach of this Agreement by Company that is not cured within thirty (30) daysof Company’s receipt of written notice from Executive specifying the material breach of thisAgreement.          7.4 Termination upon Disability. Executive’s employment will be terminated uponDisability, unless otherwise agreed upon in writing by the Company within 15 days of suchdetermination. Upon termination for Disability Executive will be entitled to receive the SeveranceBenefits described in Section 7.2, above, provided that Executive complies with the conditions toreceiving the Severance Benefits described in Sections 7.2(A) and 7.2(B) above and provided furtherthat the lump sum amount due under Section 7.2 (X) upon Disability shall be reduced by paymentsreceived or receivable under a disability plan sponsored by the Company that covers a substantialnumber of employees and that was established before Executive became disabled. All other Companyobligations to
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Executive will be automatically terminated and completely extinguished upon termination ofemployment.For purposes of this Agreement, “***Disability***” shall have the meaning assigned to it in the grouplong term disability insurance policy maintained by the Company for the benefit of its employees.In the absence of such a policy, “***Disability”***means that, as a result of Executive’s mental orphysical illness or injury, Executive is unable to perform (with or without reasonableaccommodation in accordance with the Americans with Disabilities Act) the duties of Executive’sposition pursuant to this Agreement for a continuous period of three (3) months.          7.5 Voluntary Resignation by Executive. Executive may voluntarily resign Executive’sposition with Company for any reason, at any time after the Effective Date, on five (5) days’advance written notice. In the event of Executive’s resignation, Executive will be entitled toreceive only the Base Salary up through the end of the five-day notice period, together with anyamounts or benefits due upon termination to which Executive is entitled pursuant to Section 5, andfor reimbursement of business expenses incurred prior to termination to the extent provided inSection 6. All other Company obligations to Executive pursuant to this Agreement will becomeautomatically terminated and completely extinguished upon termination of employment. For purposesof clarity, except as specifically set forth herein; Executive will not be entitled to receive anySeverance Benefits described in Section 7.2 above. The provisions of this Section 7.5 shall notapply to Executive’s resignation for Good Reason.          7.6 Mandatory Reduction of Payments in Certain Events.               (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall bedetermined that any payment or distribution by the Company to or for the benefit of Executive(whether paid or payable or distributed or distributable pursuant to the terms of this Agreement orotherwise) (a “***Payment***”) would be subject to the excise tax imposed by Section 4999 of the InternalRevenue Code (the “***Excise Tax***”), then, prior to the making of any Payment to Executive, acalculation shall be made comparing (i) the net benefit to Executive of the Payment after paymentof the Excise Tax, to (ii) the net benefit to Executive if the Payment had been limited to theextent necessary to avoid being subject to the Excise Tax. If the amount calculated under (i)above is less than the amount calculated under (ii) above, then the Payment shall be limited to theextent necessary to avoid being subject to the Excise Tax (the “***Reduced Amount***”). The reduction ofthe Payments due hereunder, if applicable, shall be made in such a manner as to maximize theeconomic present value of all Payments actually made to Executive, determined by the DeterminationFirm as defined in Section 14.2 below.               (b) The determination of whether an Excise Tax would be imposed, the amount of such ExciseTax, and the calculation of the amounts referred to Section 14.1(i) and (ii) above shall be made byan independent, nationally recognized accounting firm or compensation consulting firm mutuallyacceptable to the Company and Executive (the “***Determination Firm***”) which shall provide detailedsupporting calculations. Any determination by the Determination Firm shall be paid for by theCompany and shall be binding upon the Company and Executive.               (c) In the event that the provisions of Internal Revenue Code Section 280G and 4999 or anysuccessor provisions are repealed without succession, this Section 14 shall be of no further forceor effect.          7.7 Forfeiture of Severance Benefits. The right of Executive to receive or to retainSeverance Benefits pursuant to Section 7.2 or Section 7.3 shall be subject to Executive’s continuedcompliance with the Covenants (as defined in Section 12). In the event that Executive breaches anyof the Covenants, the Company shall have the right to (a) terminate any further provision ofSeverance
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Benefits not yet paid or provided, (b) seek reimbursement from Executive for any and all suchSeverance Benefits previously paid or provided to Executive, (c) recover from Executive all sharesof stock of the Company the vesting of which was accelerated by reason of the Severance Benefits(or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire such shares),and (d) immediately cancel all Equity Awards the vesting of which was accelerated by reason of theSeverance Benefits.     8. No Conflict of Interest. During the term of Executive’s employment with Company,Executive must not engage in any work, paid or unpaid, that creates an actual or potential conflictof interest with Company. If the Board reasonably believes such a conflict exists during the termof this Agreement, the Board may ask Executive to choose to discontinue the other work or resignemployment with Company.     9. Post-Termination Non-Competition.          9.1 Consideration For Promise To Refrain From Competing. Executive agrees thatExecutive’s services are special and unique, that Company’s disclosure of confidential, proprietaryinformation and specialized training and knowledge to Executive, and that Executive’s level ofcompensation and benefits are partly in consideration of and conditioned upon Executive notcompeting with Company. Executive acknowledges that such consideration is adequate for Executive’spromises contained within this Section 9.          9.2 Promise To Refrain From Competing. Executive understands Company’s need forExecutive’s promise not to compete with Company is based on the following: (a) Company hasexpended, and will continue to expend, substantial time, money and effort in developing itsproprietary information; (b) Executive will in the course of Executive’s employment develop, bepersonally entrusted with and exposed to Company’s proprietary information; (c) both during andafter the term of Executive’s employment, Company will be engaged in the highly competitive retaildemand chain software industry; (d) Company provides products and services nationally andinternationally; and (e) Company will suffer great loss and irreparable harm if Executive were toenter into competition with Company. Therefore, in exchange for the consideration described inSection 9.1 above, Executive agrees that for the period of nine (9) months following the dateExecutive ceases to render services to Company (the “***Covenant Period***”), Executive will not eitherdirectly or indirectly, whether as an owner, director, officer, manager, consultant, agent oremployee: (i) work for a competitor of Company, which is defined to include those entities orpersons in the business of developing, marketing, selling and supporting software specificallydesigned for businesses in the retail and consumer packaged goods markets in any country in whichCompany does business (the “***Restricted Business***”) or (ii) make or hold during the Covenant Periodany investment in any Restricted Business, whether such investment be by way of loan, purchase ofstock or otherwise, provided that there shall be excluded from the foregoing the ownership of notmore than 1% of the listed or traded stock of any publicly held corporation. For purposes of thisSection 9, the term “***Company***” shall mean and include Company, any subsidiary or affiliate ofCompany, any successor to the business of Company (by merger, consolidation, sale of assets orstock or otherwise) and any other corporation or entity of which Executive may serve as a director,officer or employee at the request of Company or any successor of Company. For the avoidance ofdoubt, Restricted Business shall not include a company that develops, markets, sells or supportssoftware that applies to a variety of vertical markets (**“*****Cross Vertical Solutions*****”**) where thecompany may have customized its Cross Vertical Solutions for the retail and consumer packaged goodsmarkets, but does not have software that is primarily targeted to the retail and consumer packagedgoods markets.          9.3 Reasonableness of Restrictions. Executive represents and agrees that therestrictions on competition, as to time, geographic area, and scope of activity, required by thisSection 9 are reasonable, do not impose a greater restraint than is necessary to protect thegoodwill and business
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interests of Company, and are not unduly burdensome to Executive. Executive expressly acknowledgesthat Company competes on an international basis and that the geographical scope of theselimitations is reasonable and necessary for the protection of Company’s trade secrets and otherconfidential and proprietary information. Executive further agrees that these restrictions allowExecutive an adequate number and variety of employment alternatives, based on Executive’s variedskills and abilities. Executive represents that Executive is willing and able to compete in otheremployment not prohibited by this Agreement.          9.4 Reformation if Necessary. In the event a court of competent jurisdictiondetermines that the geographic area, duration, or scope of activity of any restriction under thisSection 9 and its subsections is unenforceable, the restrictions under this section and itssubsections shall not be terminated but shall be reformed and modified to the extent required torender them valid and enforceable. Executive further agrees that the court may reform thisAgreement to extend the Covenant Period by an amount of time equal to any period in which Executiveis in breach of this covenant.     10. Confidentiality and Proprietary Rights. Executive agrees to read, sign and abideby Company’s Employee Innovations and Proprietary Rights Assignment Agreement, which was previouslyexecuted by Executive and incorporated herein by reference.     11. Nonsolicitation.          11.1 Nonsolicitation of Customers or Prospects. Executive acknowledges thatinformation about Company’s customers is confidential and constitutes trade secrets. Accordingly,Executive agrees that during the term of this Agreement and the Covenant Period, Executive willnot, either directly or indirectly, separately or in association with others, interfere with,impair, disrupt or damage Company’s relationship with any of its customers or customer prospects bysoliciting or encouraging others to solicit any of them for the purpose of diverting or taking awaybusiness from Company.          11.2 Nonsolicitation of Company’s Employees. Executive agrees that during the term ofthis Agreement and the Covenant Period, Executive will not, either directly or indirectly,separately or in association with others, interfere with, impair, disrupt or damage Company’sbusiness by soliciting, encouraging, hiring or attempting to hire any of Company’s employees orcausing others to solicit or encourage any of Company’s employees to discontinue their employmentwith Company.     12. Injunctive Relief. Executive acknowledges that Executive’s breach of the covenantscontained in Sections 9-11 (collectively “***Covenants***”) would cause irreparable injury to Company andagrees that in the event of any such breach, Company shall, in addition to the action it isauthorized to take pursuant to Section 7.7, be entitled to seek temporary, preliminary andpermanent injunctive relief without the necessity of proving actual damages or posting any bond orother security.     13. Agreement to Mediate and Arbitrate. In the event a dispute arises in connectionwith this Agreement, the Company and Executive agree to submit the dispute to non-bindingmediation, with the mediator to be selected and compensated by the Company. In the event aresolution is not reached through mediation, then, to the fullest extent permitted by law,Executive and Company agree to arbitrate any controversy, claim or dispute between them arising outof or in any way related to this Agreement, the employment relationship between Company andExecutive and any disputes upon termination of employment, including but not limited to breach ofcontract, tort, discrimination, harassment, wrongful termination, demotion, discipline, failure toaccommodate, family and medical leave, compensation or benefits claims, constitutional claims; andany claims for violation of any local, state or federal law, statute, regulation or ordinance orcommon law. Claims for breach of Company’s Employee Innovations
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and Proprietary Rights Agreement, workers’ compensation, unemployment insurance benefits andCompany’s right to obtain injunctive relief pursuant to Section 12 above are excluded. For thepurpose of this agreement to arbitrate, references to “Company” include all parent, subsidiary orrelated entities and their employees, supervisors, officers, directors, agents, pension or benefitplans, pension or benefit plan sponsors, fiduciaries, administrators, affiliates and all successorsand assigns of any of them, and this Agreement shall apply to them to the extent Executive’s claimsarise out of or relate to their actions on behalf of Company.          13.1 Initiation of Arbitration. Either party may exercise the right to arbitrate byproviding the other party with written notice of any and all claims forming the basis of such rightin sufficient detail to inform the other party of the substance of such claims. In no event shallthe request for arbitration be made after the date when institution of legal or equitableproceedings based on such claims would be barred by the applicable statute of limitations.          13.2 Arbitration Procedure. The arbitration will be conducted in Maricopa County,Arizona, by a single neutral arbitrator and in accordance with the then current rules forresolution of employment disputes of the American Arbitration Association *(*“***AAA***”)*.*The parties areentitled to representation by an attorney or other representative of their choosing. The arbitratorshall have the power to enter any award that could be entered by a judge of the trial court of theState of Arizona, and only such power, and shall follow the law. The parties agree to abide by andperform any award rendered by the arbitrator. Judgment on the award may be entered in any courthaving jurisdiction thereof.          13.3 Costs of Arbitration. Each party shall bear one half the cost of the arbitrationfiling and hearing fees, and the cost of the arbitrator.     14. General Provisions.          14.1 Successors and Assigns. The rights and obligations of Company under thisAgreement shall inure to the benefit of and shall be binding upon the successors and assigns ofCompany. Executive shall not be entitled to assign any of Executive’s rights or obligations underthis Agreement.          14.2 Waiver. Either party’s failure to enforce any provision of this Agreement shallnot in any way be construed as a waiver of any such provision, or prevent that party thereafterfrom enforcing each and every other provision of this Agreement.     14.3 Attorneys’ Fees. The Company will reimburse Executive’s legal counsel fees inconnection with the negotiation of this Agreement not to exceed $15,000. Any reimbursement ofattorney’s fees to which Executive is entitled and which are treated for federal income taxpurposes as compensation shall (a) be paid no later than the last day of Executive’s tax yearfollowing the tax year in which the expense was incurred, (b) not be affected by any other expensesthat are eligible for reimbursement in any tax year and (c) not be subject to liquidation orexchange for another benefit. In any dispute relating to this Agreement, the losing party shallpay the attorneys’ fees of the prevailing party in addition to its own attorneys’ fees          14.4 Severability. In the event any provision of this Agreement is found to beunenforceable by an arbitrator or court of competent jurisdiction, such provision shall be deemedmodified to the extent necessary to allow enforceability of the provision as so limited, it beingintended that the parties shall receive the benefit contemplated herein to the fullest extentpermitted by law. If a deemed modification is not satisfactory in the judgment of such arbitratoror court, the unenforceable provision shall be deemed deleted, and the validity and enforceabilityof the remaining provisions shall not be affected thereby.
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          14.5 Interpretation; Construction. The headings set forth in this Agreement are forconvenience only and shall not be used in interpreting this Agreement. This Agreement has beendrafted by legal counsel representing Company, but Executive has participated in the negotiation ofits terms. Furthermore, Executive acknowledges that Executive has had an opportunity to review andrevise the Agreement and have it reviewed by legal counsel, if desired, and, therefore, the normalrule of construction to the effect that any ambiguities are to be resolved against the draftingparty shall not be employed in the interpretation of this Agreement.          14.6 Governing Law. This Agreement will be governed by and construed in accordancewith the laws of the United States and the State of Arizona. Each party consents to thejurisdiction and venue of the state or federal courts in Maricopa County, Arizona, if applicable,in any action, suit, or proceeding arising out of or relating to this Agreement.          14.7 Notices. Any notice required or permitted by this Agreement shall be in writingand shall be delivered as follows with notice deemed given as indicated: (a) by personal deliverywhen delivered personally; (b) by overnight courier upon written verification of receipt; (c) bytelecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or(d) by certified or registered mail, return receipt requested, upon verification of receipt. Noticeshall be sent to the addresses set forth below, or such other address as either party may specifyin writing.          14.8 Survival. Sections 8 (“No Conflict of Interest”), 9 (“Post-TerminationNon-Competition”), 10 (“Confidentiality and Proprietary Rights”), 11 (“Nonsolicitation”), 12(“Injunctive Relief’), 13 (“Agreement to Arbitrate”), 14 (“General Provisions”) and 15 (“EntireAgreement”) of this Agreement shall survive Executive’s employment by Company.          14.9 Application of Section 409A.               (a) Notwithstanding anything set forth in this Agreement to the contrary, no amount payablepursuant to this Agreement which constitutes a “deferral of compensation” within the meaning of theTreasury Regulations issued pursuant to Section 409A of the Code (the “***Section 409A Regulations***”)shall be paid unless and until Executive has incurred a “separation from service” within themeaning of the Section 409A Regulations. Furthermore, to the extent that Executive is a “specifiedemployee” within the meaning of the Section 409A Regulations as of the date of Executive’sseparation from service, no amount that constitutes a deferral of compensation within the meaningof the Section 409A Regulations which is payable on account of Executive’s separation from serviceshall paid to Executive before the date (the “***Delayed Payment Date***”) which is first day of theseventh month after the date of Executive’s separation from service or, if earlier, the date ofExecutive’s death following such separation from service. All such amounts that would, but forthis Section, become payable prior to the Delayed Payment Date will be accumulated and paid on theDelayed Payment Date.               (b) The Company intends that income provided to Executive pursuant to this Agreement will notbe subject to taxation under Section 409A of the Code. The provisions of this Agreement shall beinterpreted and construed in favor of satisfying any applicable requirements of Section 409A of theCode. **However, the Company does not guarantee any particular tax effect for income provided toExecutive pursuant to this Agreement.**In any event, the Company shall indemnify and hold Executiveharmless from and against the payment of any taxes under Section 409A of the Code on compensationpaid or provided to Executive pursuant to this Agreement.     15. Entire Agreement. This Agreement, together with the Plan and any agreementevidencing an Equity Award described in Section 4.2, the Executive Bonus Plan described in Section4.3, the
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Employee Innovations and Proprietary Rights Assignment Agreement described in Section 10 and theForm of Confidential Separation and Release Agreement attached hereto as Exhibit A,constitutes the entire agreement between the parties relating to this subject matter and supersedesall prior or simultaneous representations, discussions, negotiations, and agreements, whetherwritten or oral. This Agreement may be amended or modified only with the written consent ofExecutive and the Board of Company. No oral waiver, amendment or modification will be effectiveunder any circumstances whatsoever.**[The remainder of this page is intentionally left blank.]**
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THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND EACH AND EVERYPROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWNBELOW.                   EXECUTIVE             Dated:                             HAMISH N. BREWER                                ADDRESS                     COMPANY             Dated:     By:                       Jock Patton, Chairman of CompanyCompensation Committee  [Signature Page to Brewer Amended and Restated Employment Agreement]
 

 
**EXHIBIT A**FORM OF