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time to time, and agrees that any amounts received from any such subsidiary or affiliate maybe offset against the amounts due hereunder. In addition, it is agreed that the Company may assignExecutive to one of its subsidiaries or affiliates for payroll purposes providing this does notchange the Executive’s role as the Vice President, General Counsel and Secretary of the Company.     2. Employment Term.          Executive’s term of employment under this Agreement (such term of employment, as it may beextended or terminated, is herein referred to as the “Employment Term”) shall be for a termcommencing on the Effective Date and, unless terminated earlier as provided in Section 7 hereof,ending on the third anniversary of the Effective Date (the “Original Employment Term”); providedthat the Employment Term shall be automatically extended, subject to earlier termination asprovided in Section 7 hereof, for successive additional one (1) year periods (the “AdditionalTerms”), unless, at least 30 days prior to the end of the Original Employment Term or the thencurrent Additional Term, the Company or Executive has notified the other in writing that theEmployment Term shall terminate at the end of the then current term.     3. Base Salary.          The Company agrees to pay Executive a base salary (the “Base Salary”) at an annual rate of TwoHundred Sixty Thousand Dollars ($260,000), payable in accordance with the regular payroll practicesof the Company, but not less frequently than monthly. Executive’s Base Salary shall be fixed forthe Original Employment Term, and thereafter in any Additional Term shall be determined by theBoard (or a committee thereof) and may be increased, but not decreased, from time to time by theBoard. The base salary as determined herein from time to time shall constitute “Base Salary” forpurposes of this Agreement.     4. Incentive Bonus.          During the Employment Term, Executive shall be eligible to participate in the Company’s bonusand other incentive compensation plans and programs for the Company’s senior executives at a levelcommensurate with his position. Executive shall have the opportunity to earn an annual targetbonus (the “Annual Bonus”) to be determined by and measured against objective financial criteria,management objectives, and the discretion of the Chief Executive Officer, to be determined by theBoard (or a committee thereof) of up to 50% of Base Salary, or such greater percentage as may beprovided in an annual bonus plan approved by the Board (or a committee thereof), upon the Company’sachievement of financial and operating metrics to be annually determined by the Board (or acommittee thereof), and upon recommendation of the Chief Executive Officer. Such annual incentivebonuses are payable to the Executive no later than 60 days following the close of the fiscal year.     5. Equity Incentives.          (a) Initial Option Award. The Board or any committee of the Board (the “Committee”)appointed to administer the Company’s Equity Incentive Plan, as may be amended from time to time(the “Stock Plan”) shall award Executive as of the Effective Date, options to purchase EightyThousand (80,000) shares of the Company’s common stock, $0.001 par value
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per share, having an exercise price of equal to the fair market value of one share of theCompany’s common stock as of the Effective Date as determined by the Board or Committee at theearliest practicable time, which options shall be subject to certain restrictions (the “InitialOptions Award”). The Initial Options Award shall vest in four (4) equal amounts and successiveincrements of twenty thousand (20,000) shares on the first, second, third, and fourth anniversariesof the Effective Date, provided that Executive is employed on each vesting date. The InitialOptions Award shall be granted pursuant to and shall be subject to all of the terms and conditionsimposed upon such awards granted under the Stock Plan and shall be evidenced by an Incentive StockOption Agreement in the form approved by the Board or Committee; provided, however any provision inthe Stock Plan, including the limitations of Section 10.2 of the Stock Plan relating to “ParachutePayments” under Internal Revenue Code Section 280G(b)(2) shall not apply to the Initial OptionsAward or future Award. . As a condition to receiving the Initial Options Award, Executiveacknowledges that the Option Award, together with shares issued thereunder are subject to theStockholders Agreement dated May 2, 2005, as may be amended from time to time, by and among theCompany and certain holders of the Company’s securities, and, if requested, Executive shall alsoexecute and deliver a letter in a form approved by the Company’s underwriters agreeing not to sellany shares of Company common stock during a customary period following the completion of an initialpublic offering of the Company’s common stock.          (b) Discretionary Grants. In addition to the Initial Options Award contemplated underthis Section 5, at the sole discretion of the Board or the Committee, Executive shall be eligiblefor grants of stock options and other equity awards of a level commensurate with his position andsimilar to other Executives of the Company.          (c) Change of Control. Notwithstanding any other provision of this Agreement, theStock Plan or the Incentive Stock Award Agreement, in the event of a change in control, all equityawards (including, but not limited to, any options or stock grants made subsequent to the date ofthis Agreement) shall fully vest and be immediately exercisable. For purposes of this Agreementa change in control shall occur upon (i) any “person” (as such term is used in Sections 13(d) ofthe Securities Exchange Act of 1934 (the “Exchange Act”)) first becoming after the Effective Dateeither (a) a “beneficial owner” (as defined in Rule 13(d) under the Exchange Act), directly orindirectly, of securities of the Company representing 50% or more of the combined voting power ofthe Corporation’s then outstanding securities or (b) able to elect a majority of the directors ofthe Company (excepting in each case a person or group owned by or affiliated with GenerationPartners L.P.), or (ii) the sale of all or substantially all of the assets of the Company.          (d) Option to Have Company Repurchase Stock and Options. If Executive dies whileemployed, the Company shall, subject to any restrictions contained in any credit or similaragreements or that exist under the Delaware General Corporation Law, make reasonable efforts topurchase all of Executive’s stock and any outstanding options which are vested at the time ofdeath. If the representative of the Executive’s estate wishes to accept such offer, he or sheshall request, within six (6) months of death, that the Board determine the fair market value ofExecutive’s interest in the Company. This value shall be communicated in writing to therepresentative, and the representative shall have thirty (30) days to accept or reject thevaluation. If the valuation is rejected, the representative shall have no further rights to havethe interest
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repurchased by the Company. If the valuation is accepted, the Company shall pay the amount ofthe valuation in three (3) equal annual installments without interest. The initial installmentshall be payable within ten days following the Company’s receipt of the representatives writtenacceptance of the valuation and delivery of the shares and/or options together with any transferdocumentation reasonably requested by the Company. A subsequent installment shall be due on thefirst and on the second anniversary of the payment date of the initial installment. The provisionin 5(d) expires upon the Initial Public Offering of the Company.     6. Employee Benefits.          (a) Benefit Plans. Executive shall be entitled to participate in all employee benefitplans of the Company including, but not limited to, equity, pension, thrift, profit sharing,medical coverage, education, or other retirement or welfare benefits that the Company has adoptedor may adopt, maintain or contribute to for the benefit of its senior executives at a levelcommensurate with his position, subject to satisfying any applicable eligibility requirements.          (b) Paid Time Off. Executive shall be entitled to paid time off in accordance withthe Company’s policies applicable to its senior executives, but in no event less than twenty days(as prorated for partial years), which paid time off may be taken at such times as Executive electswith due regard to the needs of the Company.          (c) Perquisites. The Company shall provide to Executive all perquisites which othersenior executives of the Company are generally entitled to receive. For the avoidance of doubt,the Company will pay or reimburse the Executive for reasonable professional expenses, includingstate license fees, bar association dues and reasonable costs and expenses incurred in connectionwith continuing legal education activities.          (d) Business and Entertainment Expenses. Upon presentation of appropriatedocumentation, Executive shall be reimbursed in accordance with the Company’s expense reimbursementpolicy for all reasonable and necessary business and entertainment expenses incurred in connectionwith the performance of his duties hereunder.     7. Termination.          Executive’s employment and the Employment Term shall terminate on the first of the followingto occur:          (a) Disability. Upon written notice by the Company to Executive of termination due toDisability. For purposes of this Agreement, “Disability” shall be defined as the inability ofExecutive to have performed his material duties hereunder due to a physical or mental injury,infirmity or incapacity for 180 days (including weekends and holidays) in any 365-day period, withor without reasonable accommodations as defined (and if required) by applicable state and federaldisability laws. The existence or nonexistence of a Disability shall be determined by anindependent physician selected by the Company and reasonably acceptable to Executive.          (b) Death. Automatically on the date of death of Executive.
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          (c) Cause. Immediately upon written notice by the Company to Executive of atermination for Cause. “Cause” shall mean:          (i) Executive shall have been indicted for a felony;          (ii) Executive shall have been convicted of (or plead “guilty” or “nolo contendre” toor been found guilty and not convicted of) any misdemeanor or summary offense involvingfraud, theft, misrepresentation or moral turpitude or any other misdemeanor or summaryoffense that will, in the opinion of the Board, determined in good faith, adversely affectin any material respect the Company’s prospects or reputation or Executive’s ability toperform his obligations or duties to the Company or any of its subsidiaries; or          (iii) The termination is evidenced by a resolution adopted in good faith by the Boardconcluding that Executive:          (A) intentionally and continually failed substantially to perform hisreasonably assigned duties with the Company (other than a failure resulting fromExecutive’s incapacity due to physical or mental illness or from the assignment toExecutive of duties that would constitute Good Reason), which failure has continuedfor a period of at least 30 days after a written notice of demand for substantialperformance, signed by a duly authorized member of the Board, has been delivered toExecutive;          (B) intentionally engaged in conduct which is demonstrably and materiallyinjurious to the Company; provided, however, that no termination of Executive’semployment shall be for Cause as set forth in this subsection (B) until (1) thereshall have been delivered to Executive a copy of a written notice, signed by a dulyauthorized member of the Board, stating that the Board has determined that Executivehas engaged in the conduct set forth in this subsection (B), and (2) Executive shallhave been provided an opportunity to be heard by the Board;          (C) willfully or repeatedly engaged in misconduct or gross negligence in theperformance of his duties to the Company or any of its subsidiaries that has amaterial detrimental effect on the Company; or          (D) committed an act of fraud, theft or dishonesty against the Company or anyof its subsidiaries or any act or omission intended to result in the personalenrichment of Executive or his spouse, parents, siblings, or descendants (whether byblood or adoption and including stepchildren) or the spouses of such individuals inviolation of law or of his duty of loyalty to the Company or its subsidiaries at theexpense, directly or indirectly, of the Company or any of its subsidiaries.          (iv) Notwithstanding anything in the foregoing to the contrary, if Executive has beenterminated ostensibly for Cause because he has been indicted for a felony, and he is notconvicted of, or does not plead guilty or nolo contendere to, such
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felony or a lesser offense (based on the same operative facts), such termination shallbe deemed to be a termination without Cause as of the date of the termination; provided,however, that, any payments due hereunder shall be only paid after a final determination insuch proceeding is reached.          (d) Without Cause. Upon written notice by the Company to Executive of an involuntarytermination without Cause, other than for death or Disability.          (e) Good Reason. Upon written notice by Executive to the Company of a termination forGood Reason, unless such events are corrected in all material respects by the Company within 30days following written notification by Executive to the Company that he intends to terminate hisemployment hereunder for one of the reasons set forth below (so long as such notice is given withinninety (90) days of the occurrence of such Good Reason). “Good Reason” shall mean, without theconsent of Executive, the occurrence of any of the following events:          (i) assignment to Executive of any duties inconsistent in any material respect withExecutive’s position (including titles and reporting relationships), authority, duties orresponsibilities as contemplated by this Agreement; and          (ii) any material failure by the Company to comply with any of the material provisionsregarding Executive’s Base Salary, bonus, equity incentive, benefits and perquisites andother benefits and amounts payable to Executive under this Agreement.          (f) Without Good Reason. Upon 30 days’ prior written notice by Executive to theCompany of Executive’s voluntary termination of employment without Good Reason (which the Companymay, in its sole discretion, make effective earlier than any notice date).     8. Consequences of Termination.          Any termination payments made and benefits provided under this Agreement to Executive shall bein lieu of any termination or severance payments or benefits for which Executive may be eligibleunder any of the plans, policies or programs of the Company or its affiliates. No terminationpayments shall be payable hereunder until Executive shall have returned to the Company all Companyproperty used by Executive including without limitation any automobile, computer or laptop, cellphone, Blackberry or similar device. Subject to Section 9, the following amounts and benefitsshall be due to Executive.          (a) Disability. Upon such termination, the Company shall pay or provide Executive (i)any unpaid Base Salary through the date of termination; (ii) any unpaid bonus earned with respectto any fiscal year ending on or preceding the date of termination; (iii) reimbursement for anyunreimbursed expenses incurred through the date of termination; and (iv) all other payments,benefits or fringe benefits to which Executive may be entitled under the terms of any applicablecompensation arrangement or benefit, equity or fringe benefit plan or program or grant or thisAgreement (collectively, “Accrued Amounts”).
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          (b) Death. In the event the Employment Term ends on account of Executive’s death,Executive’s estate shall be entitled to any Accrued Amounts.          (c) Termination for Cause or Without Good Reason. If Executive’s employment should beterminated (i) by the Company for Cause, or (ii) by Executive without Good Reason, the Companyshall pay to Executive any Accrued Amounts.     (d) Termination Without Cause or for Good Reason. If Executive’semployment by the Company is terminated by the Company other than for Cause (otherthan a termination for Disability) or by Executive for Good Reason, the Companyshall pay or provide Executive with (i) Accrued Amounts; (ii) a pro-rata portion(determined by multiplying the amount Executive would have received had employmentcontinued through the end of the performance year by a fraction, the numerator ofwhich is the number of days during the performance year of termination thatExecutive is employed by the Company and the denominator of which is 365) ofExecutive’s Annual Bonus for the performance year in which Executive’s terminationoccurs at the time that annual bonuses are paid to other senior executives; providedthat the Board determines in good faith that the Company was on plan for Executiveto earn such bonus at the time of termination; (iii) continue his then current BaseSalary as if his employment continued for a period of twelve (12) months from thedate of termination; and (iv) subject to Executive’s continued co-payment ofpremiums, continued participation for twelve (12) months in all health and welfareplans which cover Executive (and eligible dependents) upon the same terms andconditions (except for the requirements of Executive’s continued employment) ineffect on the date of termination. To the extent such coverage cannot be providedunder the Company’s health or welfare plans without jeopardizing the tax status ofsuch plans, for underwriting reasons or because of the tax impact on Executive, theCompany shall pay Executive an amount equal to the amount the Company would havepaid for such benefits on behalf of Executive if the benefits were provided to himas an employee. The continuation of health benefits under this subsection shallreduce and count against Executive’s rights under the Consolidated Omnibus BudgetReconciliation Act of 1985, as amended (“COBRA”). All benefits provided underSections 8(d)(i) and (ii) may be paid to the Employee within thirty (30) days of thetermination date once all necessary applicable releases have been signed by theEmployee and returned to the Company. Notwithstanding anything to the contraryherein, if Executive is a “specified employee,” as defined in Section409A(a)(2)(B)(i) of the Internal Revenue Code as of the date of any termination, anybenefits due under this Section 8(d) otherwise payable within six months followingtermination shall be provided in one lump sum six months from the date oftermination. However, any payment or portion thereof which is subject to anexemption for separation pay to specified employees as provided under Section 409Aand the relevant Treasury Regulations, or is subject to any other exemption providedunder Section 409A and the relevant Treasury Regulations allowing for payment to aspecified employee prior to the date that is six (6) months after the date ofseparation from service, may be paid to Employee
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within thirty (30) days of the termination date once all applicable releaseshave been signed by the Executive and returned to the Company.          (e) Amounts Payable. The Company reserves the right to set off against amountspayable to Executive hereunder any amounts owed by Executive to the Company.     9. Release.          Any and all amounts payable and benefits or additional rights provided pursuant to thisAgreement beyond Accrued Amounts shall only be payable if Executive delivers to the Company ageneral release of all claims of Executive occurring up to the release date in the form ofExhibit A hereto (with such insertions or changes therein as may be necessary in the reasonableopinion of counsel for the Company to make it valid and encompassing under applicable law) within21 days of presentation thereof by the Company to Executive, or such other longer or shorter periodas may be permitted or required by then applicable law.     10. Restrictive Covenants.          (a) Confidentiality. Executive shall not, directly or indirectly, use, makeavailable, sell, disclose or otherwise communicate to any person, other than in the course ofExecutive’s assigned duties and for the benefit of the Company, either during the Employment Termor at any time thereafter, any nonpublic proprietary or confidential information, knowledge ordata relating to the Company or any of its subsidiaries or affiliates that has been obtained byExecutive during Executive’s employment by the Company or has been obtained pursuant to anyconsulting services provided by Executive to Company prior to Executive’s employment by theCompany. For purposes of this Agreement, non-public proprietary information means informationproprietary to the Company that is not generally known (including any “trade secret” within themeaning of the Economic Espionage Act of 1996, Title 18 U.S.C. §1839) about the Company’scustomers, products, services, personnel, pricing, sales strategy, technology, methods, processes,research, development, finances, systems, techniques, accounting, purchasing and plans. Allinformation disclosed to Executive or to which he obtains access, whether originated by him or byothers, during the period that Executive is an employee of the Company (such period being referredto as the “Employment Period”) (whether prior to the Effective Date or thereafter), shall bepresumed to be non-public proprietary information if it is so treated by the Company or ifExecutive has a reasonable basis to believe it to be such. The foregoing shall not apply toinformation that (i) was known to the public prior to its disclosure to Executive; (ii) becomesknown to the public subsequent to disclosure to Executive through no wrongful act of Executive orany representative of Executive; or (iii) Executive is required to disclose by applicable law,regulation or legal process (provided that Executive provides the Company with prior notice of thecontemplated disclosure and reasonably cooperates with the Company at its expense in seeking aprotective order or other appropriate protection of such information). Notwithstanding clauses(i) and (ii) of the preceding sentence, Executive’s obligation to maintain such disclosedinformation in confidence shall not terminate where only portions of the information are in thepublic domain.          (b) Nonsolicitation. During the Employment Term and for the two year periodthereafter, Executive shall not, directly or indirectly, individually or on behalf of any
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other person, firm, corporation or other entity, knowingly solicit, aid or induce (i) anyemployee of or consultant to the Company or any of its subsidiaries or affiliates to leave suchemployment or engagement in order to accept employment with or render services to or with any otherperson, firm, corporation or other entity unaffiliated with the Company or knowingly take anyaction to materially assist or aid any other person, firm, corporation or other entity inidentifying or hiring any such employee or (ii) any customer of the Company or any of itssubsidiaries or affiliates to purchase goods or services then sold by the Company or any of itssubsidiaries or affiliates from another person, firm, corporation or other entity or assist or aidany other persons or entity in identifying or soliciting any such customer.          (c) Noncompetition. Executive acknowledges that he performs services of a uniquenature for the Company that are irreplaceable, and that his performance of such services to acompeting business will result in irreparable harm to the Company. Accordingly, during theEmployment Term and for the two year period thereafter, Executive shall not, directly orindirectly, own, manage, operate, control, be employed by (whether as an employee, consultant,independent contractor or otherwise, and whether or not for compensation) or render services to anyperson, firm, corporation or other entity, in whatever form, engaged in any business of the sametype as any business in which the Company or any of its subsidiaries or affiliates is engaged onthe date of termination or in which they have proposed, on or prior to such date, to be engaged inon or after such date, in any locale of any country in which the Company or its subsidiariesconducts business. This Section 10(c) shall not prevent Executive from owning not more than onepercent of the total shares of all classes of stock outstanding of any publicly held entity engagedin such business, nor will it restrict Executive from rendering services to charitableorganizations, as such term is defined in Section 501(c) of the Internal Revenue Code of 1986, asamended.          (d) Nondisparagment. Neither Executive nor the Company (for purposes hereof, theCompany shall mean the Company together with its executive officers and directors and not any otheremployees) shall make any public statements that disparage the other party, or in the case of theCompany, its respective subsidiaries, affiliates, employees, officers, directors, products orservices. Notwithstanding the foregoing, statements made in the course of sworn testimony inadministrative, judicial or arbitral proceedings (including, without limitation, depositions inconnection with such proceedings) shall not be subject to this Section 10(d).          (e) Equitable Relief and Other Remedies. Executive acknowledges and agrees that theCompany’s remedies at law for a breach or threatened breach of any of the provisions of thisSection 10 would be inadequate and, in recognition of this fact, Executive agrees that, in theevent of such a breach or threatened breach, in addition to any remedies at law, the Company,without posting any bond, shall be entitled to obtain equitable relief in the form of specificperformance, temporary restraining order, a temporary or permanent injunction or any otherequitable remedy which may then be available.          (f) Reformation. If it is determined by a court of competent jurisdiction in anystate or other jurisdiction that any restriction in this Section 10 is excessive in duration orscope or is unreasonable or unenforceable under the laws of that state or jurisdiction, it is theintention of the parties that such restriction may be modified or amended by the court to render itenforceable to the maximum extent permitted by the law of that state or jurisdiction.
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          (g) Survival of Provisions. The obligations contained in this Section 10 shallsurvive the termination or expiration of Executive’s employment with the Company and shall be fullyenforceable thereafter.     11. Inventions and Other Intellectual Property.          (a) Assignment of Inventions and Works Limitation of Assignment in Certain Cases.Executive acknowledges that Executive will exercise Executive’s inventive and creative abilitiesfor the benefit of the Company. Executive therefore assigns and transfers to the CompanyExecutive’s entire right, title and interest in and to all Inventions. Executive agrees that allsuch Inventions are the sole property of the Company. For purposes of this Agreement, “Inventions”shall include but not be limited to all ideas, improvements, designs and discoveries whether or notpatentable and whether or not reduced to practice, made or conceived by Executive (whether madesolely by Executive or jointly with others) which relate in any manner to the business, work orresearch and development of the Company, its subsidiaries or affiliates, or result from and aresuggested by any task assigned to Executive or any work performed by Executive for or on behalf ofthe Company, its predecessors in interest or any related entity. The foregoing definition does nothowever, include an Invention for which no equipment, supplies, facility, or confidentialinformation of the Company was used and that was developed entirely on Executive’s own time andthat (i) does not directly relate to the Company’s business, research or development, or (ii) doesnot result from any work performed by Executive for the Company.Executive agrees that all Works are the sole property of the Company, and shall, to the extentpossible, be considered works made for hire for Company within the meaning of Title 17 of theUnited States Code; provided, however, that if Executive is domiciled in California or if any ofthe Work is created in California, then such Work shall not be a work made for hire. If for anyreason any Work is not deemed to be a work made for hire, then Executive assigns and transfers tothe Company Executive’s entire right, title and interest in and to such Work, and Executive furtherwaives all of his rights under the United States Copyright Act and under any other country’scopyright law, including any rights provided in 17 U.S.C. §§ 106 and 106A, for any and all purposesfor which such Work and any derivative works thereof may be used, and any rights of attribution andintegrity or any other “moral rights of authors” with respect to such Work and any derivative worksthereof and any uses thereof to the full extent now or hereafter permitted by the laws of theUnited States of America or the laws of any other country. For purposes of this Agreement, “Works”shall include but not be limited to all copyrightable works created by Executive (whether solely byExecutive or jointly with others) during the Employment Period, or any time thereafter, whichrelate in any manner to the business, work or research and development of the Company, itssubsidiaries or affiliates, or result from and are suggested by any task assigned to Executive orany work performed by Executive for or on behalf of the Company, its subsidiaries or affiliates.If any such assignment is invalid or ineffective for any reason, then Executive hereby grantsCompany a perpetual, royalty-free, non-exclusive, worldwide license to fully exploit anyintellectual property or propriety rights in such Inventions and Works and any patents andcopyrights (or other intellectual property or propriety registrations or applications) resultingtherefrom.
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          (b) Disclosure of Inventions, Works and Patents. Executive agrees that in connectionwith any Invention or Work:          (i) Executive will disclose such Invention promptly in writing to the President, ChiefExecutive Officer or Board of the Company, in order to permit the Company to claim rights towhich it may be entitled under this Agreement. Such disclosure shall be received inconfidence by the Company or the Board.          (ii) Executive will, at the Company’s request, promptly execute a written assignment oftitle to the Company for any Invention required to be assigned by this Article (“AssignableInvention”), and Executive will preserve any such Assignable Invention as confidentialinformation of the Company.          (iii) Executive will give to the relevant contact person at the Company a copy of suchWork. Executive will, at the Company’s request, promptly execute a written assignment oftitle to the Company for any such Work.          (iv) Upon request, Executive agrees to assist the Company or its nominee (at itsexpense) during and at any time subsequent to the Employment Period in every reasonable wayto obtain for its own benefit patents and copyrights for such Assignable Inventions and suchWorks in any and all countries, which Inventions and Works shall be and remain the sole andexclusive property of the Company or its nominee whether or not patented or copyrighted.Executive agrees to execute such papers and perform such lawful acts as the Company deems tobe necessary to allow it to exercise all right, title and interest in such patents andcopyrights.          (c) Execution of Documents. In connection with this Section 11, Executive furtheragrees to execute, acknowledge and deliver to the Company or its nominee upon request (at itsexpense) all such documents, including applications for patents and copyrights and assignments ofinventions, patents and copyrights to be issued therefore, as the Company may determine necessaryor desirable to apply for and obtain letters, patents and copyrights on such Assignable Inventionsand such Works in any and all countries and/or to protect the interest of the Company or itsnominee in such inventions, such Works, patents and copyrights, and to vest title thereto in theCompany, or its nominee.          (d) Maintenance of Records. Executive agrees to keep and maintain adequate andcurrent written records of all Inventions and Works made or created by Executive (in the form ofnotes, sketches, drawings and other typical forms), which records shall be available to and remainthe sole property of the Company at all times.          (e) Prior Inventions. It is understood that all inventions, if any, patented orunpatented, which Executive made prior to the Executive’s first day as an employee of or consultantor contractor to the Company, its predecessors in interest or any related entity (and which havenot been otherwise assigned or transferred to the Company) are excluded from the scope of thisAgreement.          To preclude any possible uncertainty, Executive has set forth on Exhibit B attached hereto acomplete list of all Executive’s prior inventions, if any, including numbers of
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all patents and patent applications, and a brief description of all unpatented inventions thatare not the property of a previous employer or other person and which have not been otherwiseassigned or transferred to the Company. Executive represents and covenants that the list iscomplete and that, if no items are on the list, Executive has no such prior inventions. Executiveagrees to notify the Company in writing before Executive makes any disclosure or performs any workon behalf of the Company which appears to threaten or conflict with proprietary rights Executiveclaims in any invention or idea. In the event of Executive’s failure to give such notice,Executive agrees that Executive will make no claim against the Company with respect to any suchinventions or ideas.          (g) Trade Secrets and Intellectual Property of Others. Executive represents thatExecutive’s performance of all the terms of this Agreement does not and will not breach anynoncompetition or nonsolicitation agreement, or any agreement to keep proprietary information,knowledge or data acquired by Executive in confidence or in trust prior to the Employment Period,and Executive will not disclose to the Company or induce the Company to use any confidential orproprietary information or material belonging to any previous employer or other person. Executiveagrees not to enter into any agreement either written or oral in conflict herewith.          (h) Non infringement. Executive represents that the work product that Executiveprovides to the Company, including the Inventions and the Works, and Company’s use thereof in theirindented manner: (a) do not and will not infringe or violate the copyright or trade secret rightsof any other party; and (b) to the best of Executive’s knowledge, do not and will not infringe orviolate the actual or prospective patent or trademark rights of any other party. If at any timeduring or after the Employment Period, Executive has reason to believe that the foregoingrepresentation is no longer true, then Executive shall promptly inform Company of such belief andthe reasons therefor.          (i) Other Obligations. Executive acknowledges that the Company from time to time mayhave agreements with other persons or with the U.S. Government or governments of other countries,or agencies thereof, which impose obligations or restrictions on the Company regarding inventionsmade during the course of work thereunder or regarding the confidential nature of such work.Executive agrees to be bound by all such obligations and restrictions and to take all actionnecessary to discharge the obligations of the Company thereunder.     12. Assignments.          (a) This Agreement is personal to each of the parties hereto. Except as provided inSection 12(b) below, no party may assign or delegate any rights or obligations hereunder withoutfirst obtaining the written consent of the other party hereto.          (b) The Company may assign this Agreement to any successor to all or substantially all of thebusiness and/or assets of the Company, provided the Company shall require such successor toexpressly assume and agree to perform this Agreement in the same manner and to the same extent thatthe Company would be required to perform it if no such succession had taken place.
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     13. Notice.          For the purpose of this Agreement, notices and all other communications provided for in thisAgreement shall be in writing and shall be deemed to have been duly given (i) on the date ofdelivery if delivered by hand, (ii) on the date of transmission, if delivered by confirmedfacsimile, (iii) on the first business day following the date of deposit if delivered by guaranteedovernight delivery service, or (iv) on the fourth business day following the date delivered ormailed by United States registered or certified mail, return receipt requested, postage prepaid,addressed as follows:If to Executive:At the address (or to the facsimile number) shown on the records ofthe Company.If to the Company:Virtual Radiologic Corporation