4. Compensation.          4.1 Base Salary. As compensation for Executive’s performance of Executive’s dutieshereunder, Company shall pay to Executive a salary of $350,000 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. As an inducement to join the Company, Executive will receive the followingequity awards (the “***Inducement Awards***”): (a) an award of 50,000 restricted stock units subject tothe terms and conditions set forth in the Notice of Grant of Restricted Stock Units and RestrictedStock Units Agreement attached hereto as Exhibit A-1, (b) an award of 50,000 restrictedstock units subject to the terms and conditions set forth in the Notice of Grant of RestrictedStock Units and Restricted Stock Units Agreement attached hereto as Exhibit A-2, and (c) anaward of 25,000 performance shares subject to the terms and conditions set forth in the Notice ofGrant of Performance Shares and 2009 Performance Share Agreement attached hereto as ExhibitA-3. Unless otherwise requested by Executive reasonably in advance of the date on which any taxwithholding obligation arises, the Company will satisfy its tax withholding obligation with respectto the Inducement Awards as set forth in the applicable agreements attached in such exhibits.Subject to approval by Company’s Board of Directors (the “***Board***”), Company may from time to timegrant to Executive various forms of equity awards of Company’s common stock (the “***Equity Awards***”);provided, however, that for the Company’s 2010 fiscal year, Executive shall be guaranteed a targetaward of 50,000 performance shares pursuant to the Company’s annual performance share program. TheEquity Awards will be subject to the terms and conditions of Company’s 2005 Performance IncentivePlan, or any other subsequent employee equity plan approved in the future by the Board and, ifapplicable, the Company’s shareholders, as designated by the Board (the “***Plan***”). The InducementAwards and the Equity Awards will be subject to the terms and conditions contained in theapplicable forms of award agreement adopted by the Board and certain vesting accelerationprovisions described in this Agreement.          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***”). For 2009, the Company will guarantee that Executive willreceive a minimum Bonus equal to $87,500 (which is 50% of the portion of Executive’s annual targetbonus rate of $350,000 applicable to the second half of the 2009 fiscal year). For subsequentfiscal years, Executive will have a minimum annual target Bonus of $350,000. Unless otherwiseprovided herein, the payment of any Bonus pursuant to this Section 4.3 shall be made in accordancewith the normal payroll practices of Company, less required deductions for state and federalwithholding tax, social security and all other 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 eligible for allcustomary and usual fringe benefits generally available to executives of Company subject to theterms and conditions of Company’s benefit plan documents. Notwithstanding the Company’s policies,Executive will receive four (4) weeks of paid vacation annually. Company reserves the right tochange or eliminate the fringe benefits on a prospective basis, at any time, effective upon noticeto Executive; provided, however, that during the period of employment under this Agreement,Executive and his spouse and eligible dependents shall be
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entitled to receive all benefits of employment generally available to other senior executives ofthe Company and those benefits for which key executives are or shall become eligible, when and asExecutive becomes eligible therefore, including, without limitation, group health, life anddisability insurance benefits and participation in Company’s 401 (k) plan.     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.     7. Termination of Executive’s Employment.          7.1 Termination for Cause or Disability by Company; Death. Company may terminateExecutive’s employment immediately at any time for Cause or following Executive’s Disability (asdefined below). Executive’s employment shall terminate automatically upon Executive’s death. Forpurposes of this Agreement, “***Cause***” is defined as: (a) theft, material dishonesty in connectionwith Executive’s employment, or intentional falsification of any employment or Company records;improper disclosure of Company’s confidential or proprietary information; (b) Executive’sconviction (including any plea of guilty or *nolo contendere*) for any criminal act that materiallyimpairs his ability to perform his duties for Company; (c) willful misconduct or breach offiduciary duty for personal profit by Executive, (d) Executive’s material failure to abide by theCompany’s code of conduct or code of ethics policies resulting in demonstrable injury to theCompany or its reputation, or (e) a material breach of this Agreement by Executive which is notcured within thirty (30) days of receipt by Executive of reasonably detailed written notice fromCompany. For purposes of this Agreement, “***Disability***” shall have the meaning assigned to it in thegroup long term disability insurance policy maintained by the Company for the benefit of itsemployees. In the absence of such a policy, “***Disability”***means that, as a result of Executive’smental or physical illness, 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. In the eventExecutive’s employment is terminated in accordance with this Section 7.1, Executive shall beentitled to receive only unpaid Base Salary then in effect, prorated to the date of termination,together with any amounts to which Executive is entitled pursuant to Sections 5 or 6 hereof. Allother Company obligations to Executive pursuant to this Agreement will become automaticallyterminated and completely extinguished. Except as specifically set forth in this Section 7.1,Executive will not be entitled to receive the Severance Benefits described in Section 7.2, below.          7.2 Termination Without Cause by Company; Severance. Company may terminate Executive’semployment under this Agreement without Cause at any time on sixty (60) days’ advance writtennotice to Executive. In the event of such termination, Executive will receive the unpaid BaseSalary then in effect, prorated to the effective date of termination, together with any amounts towhich Executive is entitled pursuant to Sections 5 or 6 hereof. In addition, the Company shall (X)pay a lump sum on the forty-fifth (45th) day following such termination in an amountequal to his Base Salary for twenty-four (24) months from the termination date, plus one year’sbase Bonus pursuant to Section 4.3 of this Agreement for the calendar year during which thetermination occurs, calculated based on the Bonus that would be paid to Executive if he had notbeen terminated and if all performance based milestones were achieved at the 100% level by bothCompany and the Executive, such Bonus to be, solely for the purpose of defining Severance Benefits,not less than $350,000, and all unpaid, but earned Bonus amounts during the year in which thetermination occurs through the most recently completed fiscal
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quarter prior to the termination date; (Y) cause the immediate acceleration of the vesting of alloutstanding earned-but-unvested Equity Awards; and (Z) in the event that Executive timely elects toobtain continued group health insurance coverage under COBRA following termination of employmentunder this Section 7.2, the Company will pay the premiums for such coverage through the earlier of(i) the date that is eighteen (18) months following the Termination Date, or (ii) the first date onwhich Executive becomes eligible for other group health insurance coverage pursuant to Executive’ssubsequent employment (such amounts, accelerated vesting and insurance coverage, together with anyamounts to which Executive is entitled pursuant to Sections 5 or 6 hereof as of the date oftermination, shall be referred to herein as the “***Severance Benefits***”)*,*provided that (A) Executiveand the Company execute a mutual full general release, releasing all claims, known or unknown, thatthey may have against each other arising out of or any way related to this Agreement or Executive’semployment or termination of employment with Company and such release has become effective inaccordance with its terms prior to the forty-fifth (45th) day following suchtermination, in the form attached hereto as Exhibit B, as such form may be amended tocomply with applicable law, and (B) the Severance Benefits shall be subject to Section 7.5 below.For purposes of this agreement, an “earned-but-unvested Equity Award” means an Equity Award or anyportion thereof that remains subject to a substantial risk of forfeiture until both (i) one or moreapplicable corporate financial or other business performance goals have been satisfied and (ii)Executive’s service with the Company has continued through a specified date, and with respect tosuch Equity Award the condition specified in clause (i) of this sentence has been satisfied but thecondition specified in clause (ii) of this sentence has not been satisfied. All other Companyobligations to Executive will be automatically terminated and completely extinguished upontermination of employment. The provisions of this Section 7.2 shall not apply to termination ofExecutive’s employment by reason of death or Disability.          7.3 Termination for Good Reason by Executive; Severance. Executive may terminateExecutive’s employment under this Agreement for Good Reason (defined below) at any time on five (5)days’ advance written notice to Company given within one hundred eighty (180) days following theinitial existence of a condition constituting Good Reason. In the event of such termination forGood Reason, Executive will receive the unpaid Base Salary then in effect, prorated to theeffective date of termination together with any amounts to which Executive is entitled pursuant toSections 5 and 6 hereof. In addition, Executive will be entitled to receive the Severance Benefitsdescribed in Section 7.2, above, provided that Executive complies with the conditions to receivingthe Severance Benefits described in Sections 7.2(A) and 7.2(B), above. All other Companyobligations to Executive will be automatically terminated and completely extinguished upontermination of employment. For purposes of this Agreement, “***Good Reason***” is defined as theoccurrence and continuation of any of the following conditions, provided that Executive hasdelivered written notice to the Company of such condition within ninety (90) days after its initialexistence and the Company has failed to cure such condition within thirty (30) days following suchwritten 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 Chief FinancialOfficer (who shall be the most senior financial executive) of a publicly-traded company reportingdirectly to the CEO;               (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
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               (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 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 for the five-day notice period and no other amount (other than amountsto which Executive is entitled pursuant to Section 5 or 6 hereof). All other Company obligations toExecutive pursuant to this Agreement will become automatically terminated and completelyextinguished upon termination of employment. In addition, Executive will not be entitled toreceive any other Severance Benefits described in Section 7.2, above. The provisions of thisSection 7.4 shall not apply to Executive’s resignation for Good Reason.          7.5 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 an arbitrator finds inaccordance with the procedures described in Section 13 that Executive has engaged in a materialbreach of any of the Covenants, the Company shall have the right to (a) terminate any furtherprovision of Severance Benefits not yet paid or provided, (b) seek reimbursement from Executive forany and all such Severance Benefits previously paid or provided to Executive, (c) recover fromExecutive all shares of stock of the Company the vesting of which was accelerated by reason of theSeverance Benefits (or the proceeds therefrom, reduced by any exercise or purchase price paid toacquire such shares), and (d) to immediately cancel all Equity Awards the vesting of which wasaccelerated by reason of the Severance Benefits.          7.6 Acceleration of Vesting on a Change in Control. In the event of a Change inControl (as defined by the applicable award agreements described in Section 4.2 or, absent suchdefinition therein, as defined by the Company’s 2005 Performance Incentive Plan or other employeeequity plan approved by the Board), the vesting of all then unvested Inducement Awards and EquityAwards granted to Executive will accelerate immediately prior to, but contingent upon theconsummation of, the Change in Control, irrespective of whether, within a period of four (4) monthsprior to such Change in Control, Executive has been involuntarily terminated by the Company withoutCause as described in Section 7.2 or has terminated his employment for Good Reason as described inSection 7.3.     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.
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          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 designed forbusinesses in the retail and consumer packaged goods markets or in the business of helpingcompanies synchronize their inventory decisions with advanced supply chain, inventory managementand data mining solutions, in any country in which Company does business (the “***RestrictedBusiness***”) or (ii) make or hold during the Covenant Period any investment in any RestrictedBusiness, whether such investment be by way of loan, purchase of stock or otherwise, provided thatthere shall be excluded from the foregoing the ownership of not more than 1% of the listed ortraded stock of any publicly held corporation. For purposes of this Section 9, the term “***Company***”shall mean and include Company, any subsidiary or affiliate of Company, any successor to thebusiness of Company (by merger, consolidation, sale of assets or stock or otherwise) and any othercorporation or entity of which Executive may serve as a director, officer or employee at therequest of Company or any successor of Company.          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 interests of Company, and are not unduly burdensome to Executive. Executiveexpressly acknowledges that Company competes on an international basis and that the geographicalscope of these limitations is reasonable and necessary for the protection of Company’s tradesecrets and other confidential and proprietary information. Executive further agrees that theserestrictions allow Executive an adequate number and variety of employment alternatives, based onExecutive’s varied skills and abilities. Executive represents that Executive is willing and able tocompete in other employment 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 attached hereto asExhibit C 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,
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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 (definedas prospective customers who had received a written proposal from the Company for Company productsor services within the past 12 months) by soliciting or encouraging others to solicit any of themfor the purpose of diverting or taking away business 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 7.5, 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 and Proprietary Rights Agreement,workers’ compensation, unemployment insurance benefits and Company’s right to obtain injunctiverelief pursuant to Section 12 above are excluded. For the purpose of this agreement to arbitrate,references to “Company” include all parent, subsidiary or related entities and their employees,supervisors, officers, directors, agents, pension or benefit plans, pension or benefit plansponsors, fiduciaries, administrators, affiliates and all successors and assigns of any of them,and this Agreement shall apply to them to the extent Executive’s claims arise out of or relate totheir 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.
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          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, provided such successors and assigns agree in writing to be bound by the terms of theAgreement. 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. In any dispute relating to this Agreement, each party shall payits or his own attorneys’ fees unless a statute awards attorneys’ fees to the prevailing party.Any reimbursement of attorney’s fees to which Executive is entitled and which are treated forfederal income tax purposes as compensation shall (a) be paid no later than the last day ofExecutive’s tax year following the tax year in which the expense was incurred, (b) not be affectedby any other expenses that are eligible for reimbursement in any tax year and (c) not be subject toliquidation or exchange for another benefit.          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.          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
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Relief’), 13 (“Agreement to Arbitrate”), 14 (“General Provisions”) and 15 (“Entire Agreement”) ofthis 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) If the Executive or the Company believes, at any time, that any payment pursuant to thisAgreement is subject to taxation under Section 409A of the Code, then (i) it shall advise the otherand (ii) to the extent such correction is possible to avoid taxation under Section 409A without anymaterial diminution in the value of the payments or benefits to Employee, the Company and Executiveshall reasonably cooperate in good faith to take such steps as necessary, including amending (and,as required, consenting to the amendment of) the terms of any plan or program under which suchpayments are to be made, in the least restrictive manner necessary in order to comply with theprovisions of Section 409A and the Section 409A Regulations in order to avoid taxation underSection 409A.               (c) 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.**     15. Executive Attorney Fees. The Company will reimburse Executive’s legal counsel feesin connection with the negotiation of this Agreement not to exceed $15,000. Any reimbursementExecutive is entitled to receive pursuant to this Section shall (a) be paid no later than the lastday of Executive’s tax year following the tax year in which the expense was incurred, (b) not beaffected by any other expenses that are eligible for reimbursement in any tax year and (c) not besubject to liquidation or exchange for another benefit.     16. 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 Employee Innovations and Proprietary Rights Assignment Agreement described in Section 10and the Form of Confidential Separation and Release Agreement attached hereto as Exhibit B,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. Notwithstanding the foregoing, if there is a conflict betweenthis Agreement and any other policy or plan of the Company, this Agreement will govern.
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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: July 20, 2009 /s/ Pete Hathaway Pete Hathaway