3. At-Will Employment. Executive’s employment with the Company is at-will and not forany specified period and may be terminated at any time, with or without cause (as defined below) oradvance notice, by either Executive or the Company subject to the provisions regarding terminationset forth below in Section 7. Any change to the at-will employment relationship must be byspecific, written agreement signed by Executive and the Company, and must be approved by theCompany’s CEO and the Company’s Board of Directors. Nothing in this Agreement is intended to orshould be construed to contradict, modify or alter this at-will relationship     4. Compensation.          4.1 Base Salary. As compensation for Executive’s performance of Executive’s dutieshereunder, Company shall pay to Executive a salary of $375,000 per year (“***Base Salary***”), payable inequal monthly installments and in accordance with the normal payroll practices of Company, lessrequired deductions for state and federal withholding tax, social security and all other employmenttaxes and 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 that will vest over three years based upon the achievement of performance milestones tobe agreed upon by the Company and Executive within 90 days of the commencement of Executive’semployment with the Company subject to the terms and conditions set forth in the Notice of Grant ofRestricted Stock Units and Restricted Stock Units Agreement, substantially in the form attachedhereto as Exhibit A-2, and (c) an award of 30,000 performance shares subject to the termsand conditions set forth in the Notice of Grant of Performance Shares and 2009 Performance ShareAgreement attached hereto as Exhibit A-3. Unless otherwise requested by Executivereasonably in advance of the date on which any tax withholding obligation arises, the Company willsatisfy its tax withholding obligation with respect to the Inducement Awards as set forth in theapplicable agreements attached in such exhibits. Subject to approval by Company’s Board ofDirectors (the “***Board***”), Company may from time to time grant to Executive various forms of equityawards of Company’s common stock (the “***Equity Awards***”); provided, however, that for the Company’s2010, 2011 and 2012 fiscal years, Executive shall be guaranteed a target award of 50,000performance shares pursuant to the Company’s annual performance share program. The Equity Awardswill be subject to the terms and conditions of Company’s 2005 Performance Incentive Plan, or anyother subsequent employee equity plan approved in the future by the Board and, if applicable, theCompany’s shareholders, as designated by the Board (the “***Plan***”). The Inducement Awards and theEquity Awards will 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 receiveannual incentive compensation subject to the terms and conditions contained in the Executive BonusPlan, which is approved by the Board and is subject to amendment from time to time by the Board inits sole and absolute discretion (a “***Bonus***”). For 2009, the Company will guarantee that Executivewill receive a minimum Bonus equal to 50% of the portion of Executive’s annual target bonus rate of$450,000, prorated for the actual time Executive is employed by the Company during 2009. Forsubsequent fiscal years, Executive will have a minimum annual target Bonus of $450,000. Unlessotherwise provided herein, the payment of any Bonus pursuant to this Section 4.3 shall be made inaccordance with thenormal payroll practices of Company, less required deductions for state and federal withholdingtax, social security and all other employment taxes and authorized payroll deductions.
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          4.4 Performance and Salary Review. The Board will periodically review Executive’sperformance on no less than an annual basis. Adjustments to Base Salary or other compensation, ifany, 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 entitled to receive all benefits ofemployment generally available to other members of Company’s management and those benefits forwhich key executives are or shall become eligible, when and as Executive becomes eligibletherefore, including, without limitation, group health, life and disability insurance benefits andparticipation 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, dishonesty, or intentionalfalsification of any employment or Company records; improper disclosure of Company’s confidentialor proprietary information; (b) Executive’s conviction (including any plea of guilty or *nolocontendere*) for any criminal act that materially impairs his ability to perform his duties forCompany; (c) willful misconduct or breach of fiduciary duty for personal profit by Executive, (d)Executive’s material failure to abide by the Company’s code of conduct or code of ethics policiesresulting in demonstrable injury to the Company or its reputation, or (e) a material breach of thisAgreement by Executive which is not cured within thirty (30) days of receipt by Executive ofreasonably detailed written notice from Company. For purposes of this Agreement, “***Disability***” shallhave the meaning assigned to it in the group long term disability insurance policy maintained bythe Company for the benefit of its employees. In the absence of such a policy, “***Disability”***meansthat, as a result of Executive’s mental or physical illness, Executive is unable to perform (withor without reasonable accommodation in accordance with the Americans with Disabilities Act) theduties of Executive’s position pursuant to this Agreement for a continuous period of three (3)months. In the event Executive’s employment is terminated in accordance with this Section 7.1,Executive shall be entitled to receive only unpaid Base Salary then in effect, prorated to the dateof termination, together with any amounts to which Executive is entitled pursuant to Sections 5 or6 hereof. All other Company obligations to Executive pursuant to this Agreement will becomeautomatically terminated and completely extinguished. Except as specifically set forth in thisSection 7.1, Executive will not be entitled to receive the Severance Benefits described in Section7.2, 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 Base
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Salary 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’starget 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 $450,000; and (Y) cause the immediate acceleration of the vesting of all outstandingearned-but-unvested Equity Awards (such amounts and accelerated vesting, together with any amountsto which Executive is entitled pursuant to Sections 5 or 6 hereof as of the date of termination,shall be referred to herein as the “***Severance Benefits***”)*,*provided that (A) Executive executes afull general release, releasing all claims, known or unknown, that Executive may have againstCompany arising out of or any way related to this Agreement or Executive’s employment ortermination of employment with Company and such release has become effective in accordance with itsterms prior to the forty-fifth (45th) day following such termination, in substantiallythe form attached hereto as Exhibit A, or in another form that is acceptable to Company inits sole discretion, and (B) the Severance Benefits shall be subject to Section 7.6 below. Forpurposes 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;                    (b) the relocation of Executive’s work place for Company over Executive’s written objection,to a location more than thirty (30) miles from (i) Atlanta, Georgia, prior to Executive’srelocation to Scottsdale, Arizona, or (ii) Scottsdale, Arizona, following Executive’s relocation ascontemplated by Section 2.3;                    (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 Executive breaches anyof the Covenants, the Company shall have the right to (a) terminate any further provision ofSeverance Benefits not yet paid or provided, (b) seek reimbursement from Executive for any and allsuch Severance Benefits previously paid or provided to Executive, (c) recover from Executive allshares of stock of the Company the vesting of which was accelerated by reason of the SeveranceBenefits (or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire suchshares), and (d) to immediately cancel all Equity Awards the vesting of which was accelerated byreason of the Severance 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, inexchange for the consideration described in Section 9.1 above, Executive agrees that for the periodof nine (9) months following the date Executive ceases to render services to Company (the “***CovenantPeriod***”), Executive will not either directly or indirectly, whether as an owner, director, officer,manager,
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consultant, agent or employee: (i) work for a competitor of Company, which is defined toinclude those entities or persons in the business of developing, marketing, selling and supportingsoftware specifically designed for businesses in the retail and consumer packaged goods markets inany country in which Company does business (the “***Restricted Business***”) or (ii) make or hold duringthe Covenant Period any investment in any Restricted Business, whether such investment be by way ofloan, purchase of stock or otherwise, provided that there shall be excluded from the foregoing theownership of not more than 1% of the listed or traded stock of any publicly held corporation. Forpurposes of this Section 9, the term “***Company***” shall mean and include Company, any subsidiary oraffiliate of Company, any successor to the business of Company (by merger, consolidation, sale ofassets or stock or otherwise) and any other corporation or entity of which Executive may serve as adirector, officer or employee at the request of Company or any successor of Company. For theavoidance of doubt, Restricted Business shall not include a company that develops, markets, sellsor supports software that applies to a variety of vertical markets (**“Cross Vertical Solutions”**)where the company may have customized its Cross Vertical Solutions for the retail and consumerpackaged goods markets, but does not have software that is primarily targeted to the retail andconsumer packaged goods 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 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, 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(defined as prospective customers who had received a written proposal from the Company for Companyproducts or services within the past 12 months) by soliciting or encouraging others to solicit anyof them for 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
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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 7.6, 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 Arbitrate. To the fullest extent permitted by law, Executive andCompany agree to arbitrate any controversy, claim or dispute between them arising out of or in anyway related to this Agreement, the employment relationship between Company and Executive and anydisputes upon termination of employment, including but not limited to breach of contract, tort,discrimination, harassment, wrongful termination, demotion, discipline, failure to accommodate,family and medical leave, compensation or benefits claims, constitutional claims; and any claimsfor violation of any local, state or federal law, statute, regulation or ordinance or common law.Claims for breach of Company’s Employee Innovations and Proprietary Rights Agreement, workers’compensation, unemployment insurance benefits and Company’s right to obtain injunctive reliefpursuant 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.          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. Mandatory Reduction of Payments in Certain Events.          14.1 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
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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.          14.2 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 binding upon theCompany and Executive.          14.3 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.     15. General Provisions.          15.1 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. As used in this Agreement, “Company” shall mean the Company as hereinbefore definedand any successor to its business and/or assets as aforesaid, which assumes and agrees to performthis Agreement by operation of law, or otherwise.          15.2 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.          15.3 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.          15.4 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.          15.5 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 and revise theAgreement and have it reviewed by legal counsel, if desired, and, therefore, the normal rule of
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construction to the effect that any ambiguities are to be resolved against the drafting party shallnot be employed in the interpretation of this Agreement.          15.6 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.          15.7 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.          15.8 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.          15.9 Application of Section 409A.                    (a) Notwithstanding anything set forth in this Agreement to the contrary, no amount payable onaccount of Executive’s termination of employment with the Company pursuant to this Agreement whichconstitutes a “deferral of compensation” within the meaning of the Treasury Regulations issuedpursuant to Section 409A of the Internal Revenue Code (the “***Section 409A Regulations***”) shall bepaid unless and until Executive has incurred a “separation from service” within the meaning of theSection 409A Regulations. Furthermore, to the extent that Executive is a “specified employee”within the meaning of the Section 409A Regulations as of the date of Executive’s separation fromservice, no amount that constitutes a deferral of compensation within the meaning of the Section409A Regulations which is payable on account of Executive’s separation from service shall paid toExecutive before the date (the “***Delayed Payment Date***”) which is first day of the seventh monthafter the date of Executive’s separation from service or, if earlier, the date of Executive’s deathfollowing such separation from service. All such amounts that would, but for this Section, becomepayable prior to the Delayed Payment Date will be accumulated and paid on the Delayed 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 Internal Revenue Code. The provisions of thisAgreement shall be interpreted and construed in favor of satisfying any applicable requirements ofSection 409A of the Internal Revenue Code. **However, the Company does not guarantee any particulartax effect for income provided to Executive pursuant to this Agreement.**     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 10,the Inducement Awards documents set forth in Exhibits A-1, A-2 and A-3 and the Form of ConfidentialSeparation and Release Agreement attached hereto as Exhibit B, constitute the entireagreement between the parties relating to this subject matter and supersedes all prior orsimultaneous representations, discussions, negotiations, and agreements, whether written or oral.This Agreement may be amended ormodified only with the written consent of Executive and the Board of Company. No oral waiver,amendment or modification will be effective under any circumstances whatsoever.
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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