EXHIBIT 10.57**Employment Agreement****By and Between****Epimmune Inc.****and****Bonnie Mills**
 

 
**Table of Contents**           **Page**  1. EMPLOYMENT  1  2. LOYAL AND CONSCIENTIOUS PERFORMANCE; NONCOMPETITION  2  3. COMPENSATION OF THE EXECUTIVE  3  4 TERMINATION  5  5. CONFIDENTIAL AND PROPRIETARY INFORMATION; NONSOLICITATION  10  6. ASSIGNMENT AND BINDING EFFECT  10  7. NOTICES  10  8. CHOICE OF LAW  11  9. INTEGRATION  11  10. AMENDMENT  11  11. WAIVER  11  12. SEVERABILITY  12  13. INTERPRETATION; CONSTRUCTION  12  14. REPRESENTATIONS AND WARRANTIES  12  15. COUNTERPARTS  12  16. ARBITRATION  12  17. TRADE SECRETS OF OTHERS  13  18. ADVERTISING WAIVER  13 
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**EXECUTION COPY****EMPLOYMENT AGREEMENT**This**Employment Agreement**(this **“*****Agreement*****”***)*is made and entered into as of June 6,2005 by and among **EPIMMUNE INC.**, a Delaware corporation (the**“*****Company*****”***)*and Bonnie Mills (the***“Executive”**).*This Agreement shall becomeeffective (the **“*****Effective Date*****”***)*as of the closing dateof that certain Share Exchange Agreement made and entered into as of March 15, 2005 (the ***“ExchangeAgreement”****),*as amended, between the Company and certain shareholders of IDM, S.A., a *sociétéanonyme*organized under the laws of France *(****“IDM”****).*The Company and the Executive are hereinaftercollectively referred to as the ***“Parties”****,*and individually referred to as a ***“Party”**.*Thosecapitalized terms used herein and not otherwise defined shall have the meanings given to such termsin the Exchange Agreement.**Recitals****A.**The Executive currently serves as Vice President, Executive Director, Clinical Operationsof IDM.**B.**The Company desires assurance of the association and services of the Executive in orderto retain the Executive’s experience, skills, abilities, background and knowledge, and is willingto engage the Executive’s services on the terms and conditions set forth in this Agreement.**C.**The Executive desires to be in the employ of the Company, and is willing to accept suchemployment on the terms and conditions set forth in this Agreement.**Agreement**     In consideration of the foregoing Recitals and the mutual promises and covenants hereincontained, and for other good and valuable consideration, the Parties, intending to be legallybound, agree as follows:     **1. ****Employment.**          **1.1 Term.**The Company hereby employs the Executive, and the Executivehereby accepts employment by the Company, upon the terms and conditions set forth in thisAgreement. The term of this Agreement shall begin on the Effective Date and shall continueuntil it is terminated pursuant to Section 4 herein (the***“Term”****).*          **1.2 Title.**The Executive shall have the title of Vice President, ClinicalOperations and General Manager of U.S. Operations of the Company and shall serve in suchother capacity or capacities as such officer(s) of the Company to whom the Executive reportsmay from time to time prescribe.          **1.3 Duties.**The Executive shall do and perform all services, acts or thingsnecessary or advisable to manage and conduct the business of the Company and which are
 

 
normally associated with the position of Vice President, Clinical Operations and General Managerof U.S. Operations of the Company.          **1.4 Policies and Practices.**The employment relationship between the Partiesshall be governed by the policies and practices established by the Company and the Company’sBoard of Directors (the *“**Board**”).*The Executive shall acknowledge in writing that she has readthe Company’s Employee Handbook that will govern the terms and conditions of heremployment with the Company, along with this Agreement. In the event that the terms of thisAgreement differ from or are in conflict with the Company’s policies or practices or theCompany’s Employee Handbook, this Agreement shall control.          **1.5 Location.**Unless the Parties otherwise agree in writing, during the Term,the Executive shall perform the services the Executive is required to perform pursuant to thisAgreement at the Company’s offices, located in Irvine, California; *provided, however,*that theCompany may from time to time require the Executive to travel temporarily to other locationsin connection with the Company’s business.     **2. ****Loyal and Conscientious Performance; Noncompetition.**          **2.1 Loyalty.**During the Executive’s employment by the Company, theExecutive shall devote the Executive’s full business energies, interest, abilities andproductive time to the proper and efficient performance of the Executive’s duties under this Agreement.          **2.2 Covenant not to Compete.**In exchange for the consideration providedherein and any benefit the Executive receives as a result of the Exchange Agreement, theExecutive will not, during the Term and during any Good Reason or Without Cause Severance(as these terms are hereinafter defined) Period specified by this Agreement, if severance ispaid, engage in competition with the Company and/or any of its controlled Affiliates (as definedbelow), either directly or indirectly, in any manner or capacity, as adviser, principal,agent, affiliate, promoter, partner, officer, director, employee, stockholder, owner, co-owner,consultant, or member of any association or otherwise, in any phase of the business of developing,manufacturing and marketing of cancer vaccines or related products or services, except withthe prior written consent of the Board. For purposes of thisAgreement, ***“Affiliate,”*** means,with respect to any specific entity, any other entity that, directly or indirectly, through one ormore intermediaries, controls, is controlled by or is under common control with such specifiedentity.          **2.3 Agreement not to Participate in Company’s Competitors.**During theTerm and during any Good Reason or Without Cause Severance Period specified by thisAgreement, if severance is paid, the Executive agrees not to acquire, assume or participatein, directly or indirectly, any position, investment or interest known by the Executive to beadverse or antagonistic to the Company, its business or prospects, financial or otherwise or in anycompany, person or entity that is, directly or indirectly, in competition with the business ofthe Company or any of its Affiliates. Ownership by the Executive, in professionally managed fundsover which the Executive does not have control or discretion in investment decisions, or as apassive investment, of less than two percent (2%) of the outstanding shares of capital stockof any corporation with one or more classes of its capital stock listed on a national securities
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exchange or publicly traded on the Nasdaq Stock Market or in the over-the-counter market (a“***Publicly Traded Company***”) shall not constitute a breach of this Section 2.3.     **3. ****Compensation of the Executive.**          **3.1 Base Salary.**The Company shall pay the Executive a base salary at theannualized rate of two hundred thirty thousand ($230,000) per year (“Base Salary”), lesspayroll deductions and all required withholdings, payable in regular periodic payments in accordancewith the Company’s normal payroll practices. Such base salary shall be prorated for anypartial year of employment on the basis of a 365-day fiscal year.          **3.2 Annual Bonus.**The Executive shall be entitled to earn a bonus on anannual basis, the payment of which shall be based on the satisfaction of annual performanceobjectives established by the Board or the Compensation Committee of the Board in its solediscretion (the ***“Annual Bonus”****).*The target amount for the Annual Bonus with respect to fiscalyear 2005 shall be equal to 25% of the Base Salary. The Board or Compensation Committee willhave the discretion to determine the target bonus levels in future years. The Annual Bonusshallbe payable within 60 days following the last day of the Company’s fiscal year.          **3.3 Changes to Compensation.**The Executive’s compensation may bechanged from time to time by mutual agreement of the Executive and the Company.          **3.4Employment Taxes.** All of the Executive’s compensation shall be subjectto customary withholding taxes and any other employment taxes as are commonly required to becollected or withheld by the Company.          **3.5 Benefits.**The Executive shall, in accordance with Company policy andthe terms of the applicable plan documents, be eligible to participate in benefits under anyexecutive benefit plan or arrangement which may be in effect from time to time and madeavailable to the Company’s executive or key management employees.          **3.6 Restricted Stock Grant.**Pursuant to the terms of the Company’s 2000Stock Plan, as amended (the ***“Plan”****),*the Company shall grant to the Executive the right toreceive a total of fifty thousand (50,000) shares of the common stock of the Company (the***“Common Stock”****)*which right shall vest as to 50,000 shares on the date forty-two monthsfollowing the Effective Date, provided that the Executive remains a full time employee of theCompany without break or interruption in service. Any shares subject to the restricted stockgrant that have vested will be issued to the Executive on the earlier of (a) the Executive’sseparation from service (as such term is used in Section 409A(a)(2)(A)(i)) of the InternalRevenue Code of 1986, as amended (the ***“Code”****)), provided that,*if the Executive’s separationoccurs on a date during which executive officers of the Company are prohibited by Companypolicy or applicable securities or exchange rules from trading the stock of the Company, thevested shares shall not be issued until the next business day during which trading is notprohibited; and (b) forty-eight (48) months from the Effective Date; *provided that,*if theforty-eight month anniversary of the Effective Date occurs on a date during which executive officersof the Company are prohibited by Company policy or applicable securities or exchange rules from
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trading the stock of the Company, the vested shares shall not be issued until the nextbusiness day during which trading is not prohibited. Notwithstanding the foregoing, the issuanceof the vested shares shall be made in a manner that complies with the requirements of Code Section409A, which may include, without limitation, deferring the issuance of such shares for six (6)months after the Executive’s separation from service; *provided, however,*that nothing in thissentence shall require the issuance of vested shares to the Executive earlier than they wouldotherwise be issued under this Agreement.               **3.6.1 Accelerated Vesting.**Notwithstanding the foregoing vesting schedule, the vesting ofshares pursuant to the restricted stock grant shall be accelerated as follows, provided that oneach of the following events the Executive remains a full time employee of the Company withoutbreak or interruption in service on the applicable vesting date: (i) upon the closing of afinancing which raises net additional capital for the Company of at least five million dollars($5,000,000.00) within twelve (12) months after the EffectiveDate (the ***“Initial Financing”***) tenthousand (10,000) shares shall immediately vest; (ii) upon the filing by the Company of a marketingapproval application with the Food and Drug Administration or the European Agency for theEvaluation of Medicinal Products with respect to the Company’s Mepact product within eighteen (18)months after the Effective Date, twenty-five thousand (25,000) shares shall immediately vest; (iii)upon the closing of a second financing which raises net additional capital for the Company of atleast five million dollars ($5,000,000.00) within twenty-four (24) months after the Effective Date,five thousand (5,000) shares shall immediately vest; and (iv) upon approval by the Food and DrugAdministration or the European Agency for the Evaluation of Medicinal Products of the marketing ofthe Company’s Mepact product prior to the third anniversary of the Effective Date, ten thousand(10,000) shares shall immediately vest. For purposes of the additional vesting provided in thisSection 3.6.1, the accelerated vesting, if any, shall be with respect to shares scheduled to vestlast in time.          **3.7 Option Grant.**Subject to approval by the Board, the Company shallgrant to the Executive on the Effective Date as soon as practicable following the EffectiveDatean Option (the ***“Option”)***to purchase one hundred fifty thousand (150,000) shares of CommonStock. The Option shall vest over a four-year period commencing on the date of grant, with 25%of the shares subject to the Option vesting on the first anniversary of the date of grant, andthebalance of the shares subject to the Option vesting ratably on a daily basis during the next36months thereafter, provided that the Executive remains a full time employee of the Companywithout break or interruption in service as of the vesting dates. Except as provided in thisAgreement, the Option shall be granted pursuant to and be subject to the terms and conditionsofthe Plan.          **3.8 Prior Stock Options.**As to any outstanding options to purchase theordinary shares of IDM (the ***“IDM Ordinary Shares”****)*granted to the Executive prior to theEffective Date for which the Executive receives substitute options under the Plan (the ***“Pre-Exchange Options”)***which have a per share exercise price that is equal to or greater than thefairmarket value of the Company Shares on the Effective Date (the***“UnderWater Options”****),*theUnderWater Options shall be exercisable by the Executive until the later of (i) December 31,2007, or (ii) three (3) months following the effective date of the Executive’s termination ofemployment with the Company.
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     **4. ****Termination.**          **4.1 Termination By the Company.**The Executive’s employment with theCompany may be terminated under the following conditions:               **4.1.1 Termination for Death or Disability.**The Executive’semployment with the Company shall terminate effective upon the date of the Executive’s deathor ***“Complete Disability”***(as defined in Section 4.5.1 hereof), provided, however, that thisSection 4.1.1 shall in no way limit the Company’s obligations to provide such reasonableaccommodations to the Executive as may be required by law.               **4.1.2 Termination by the Company For Cause.**The Company mayterminate the Executive’s employment under this Agreement for ***“Cause”***(as defined inSection 4.5.3) by delivery of written notice to the Executive specifying the Cause or Causesrelied upon for such termination, provided that such notice is delivered within two (2) monthsfollowing the occurrence of the Company learning of any event or events constituting “Cause”.Any notice of termination given pursuant to this Section 4.1.2 shall effect termination as ofthedate of the notice or such date as specified in the notice.               **4.1.3 Termination by the Company Without Cause.**The Companymay terminate the Executive’s employment under this Agreement at any time and for any reason,or no reason. Such termination shall be effective on the date the Executive is so informed orasotherwise specified by the Company.          **4.2 Termination By The Executive.**The Executive may terminate heremployment with the Company at any time and for any reason or no reason, including, but notlimited, under the following conditions:               **4.2.1 Good Reason.**The Executive may terminate her employmentunder this Agreement for ***“Good Reason”***(as defined below in Section 4.5.2 hereof) by deliveryof written notice to the Company specifying the “Good Reason” relied upon by the Executive forsuch termination, provided that such notice is delivered within two (2) months following theoccurrence of any event or events constituting Good Reason.               **4.2.2 Without Good Reason.**The Executive may terminate theExecutive’s employment hereunder for other than “Good Reason” upon sixty (60) days writtennotice to the Company.          **4.3 Termination by Mutual Agreement of the Parties.**The Executive’semployment pursuant to this Agreement may be terminated at any time upon a mutual agreementin writing of the Parties. Any such termination of employment shall have the consequencesspecified in such agreement.          **4.4 Compensation Upon Termination.**               **4.4.1 Death or Complete Disability.**If the Executive’s employment shall be terminated bydeath or Complete Disability as provided in Section 4.1.1 hereof, i) the
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Company shall pay to the Executive, and/or the Executive’s heirs, the Executive’s Base Salary andaccrued and unused vacation benefits earned through the date of termination at the rate in effectat the time of termination, less standard deductions and withholdings, ii) any shares subject tothe restricted stock grant that have vested as of the Executive’s death or Complete Disability asprovided under Section 3.6 hereof shall be delivered to the Executive’s estate as soon aspracticable, iii) the Executive shall fully vest in her Pre-Exchange Options and the Executive’soutstanding stock options shall expire in accordance with the terms of the applicable awardagreements (as amended by Section 3.8 hereof), and iv) the Company shall thereafter have no furtherobligations to the Executive and/or the Executive’s heirs under this Agreement, except to theextent that the Executive is eligible for benefits pursuant to any insurance policies maintained bythe Company in connection with her death or Complete Disability, and except as otherwise providedby law.               **4.4.2 For Cause.**If the Executive’s employment shall be terminated bythe Company for Cause, then i) the Company shall pay the Executive’s Base Salary and accruedand unused vacation benefits earned through the date of termination at the rate in effect atthetime of termination, less standard deductions and withholdings, ii) the Executive’s right toreceive unvested shares as provided in Section 3.6 hereof immediately shall expire, iii) theExecutive’s outstanding stock options shall expire in accordance with the terms of theapplicableaward agreements (as amended by Section 3.8 hereof), and iv) the Company shall thereafter haveno further obligations to the Executive under this Agreement, except as provided by law.               **4.4.3 Resignation Without Good Reason.**If the Executive’semployment hereunder shall be terminated by the Executive without Good Reason, then i) theCompany shall pay the Executive’s Base Salary and accrued and unused vacation benefits earnedthrough the date of termination at the rate in effect at the time of termination, lessstandarddeductions and withholdings, ii) the Executive’s right to receive unvested shares as providedinSection 3.6 hereof immediately shall expire, iii) the Executive shall fully vest in her Pre-Exchange Options and the Executive’s outstanding stock options shall expire in accordance withthe terms of the applicable award agreements (as amended by Section 3.8 hereof), and iv) theCompany shall thereafter have no further obligations to the Executive under this Agreement,except as provided by law and with respect to the delivery of vested shares under Section 3.6hereof.               **4.4.4 With Good Reason.**If the Executive resigns with Good Reason,then the Company shall pay the Executive’s Base Salary and accrued and unused vacation earnedthrough the date of termination, at the rate in effect at the time of termination subject tostandarddeductions and withholdings. In addition, subject to the limitations stated in Section 4.4.6hereinand upon the Executive’s furnishing to the Company, and not revoking, an effective waiver andrelease of claims (a form of which is attached hereto as**Exhibit A**) (the ***“Release”****),*theExecutive shall be entitled to:               **(i) **continued payment of the Executive’s annual Base Salary in effect at the time oftermination for a period beginning upon the Effective Date specified in Exhibit A and continuinguntil the earlier of i) twelve (12) months thereafter or, ii) the date on which the Executivebegins full-time employment with or in an entity or endeavor other than the Company
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(the ***“Good Reason Severance Period”),***less standard deductions and withholdings, paid pursuant tothe Company’s standard payroll practices; and               **(ii) **in the event the Executive elects continued coverage under COBRA in accordance withapplicable law, the Company will reimburse the Executive for the same portion of Executive’s COBRAhealth insurance premium as the percentage of health insurance premiums that it paid during theExecutive’s employment during the Good Reason Severance Period; and               **(iii) **the accelerated and full vesting of all Pre-Exchange Options such that the Pre-ExchangeOptions shall be fully vested and exercisable as of the Effective Date specified in Exhibit A (thePre-Exchange Option will otherwise be governed by the terms of the applicable stock optionagreement and plan, as amended by Section 3.8 hereof); and               **(iv) **with respect to any unvested portion of the restricted stock grant specified in Section3.6 above and the Option specified in Section 3.7 above (collectively, the ***“Awards”***),theaccelerated vesting of the Awards such that the Awards shall be fully vested and exercisable as ofthe effective date of the Release.               **4.4.5 Without Cause.**If the Company terminates the Executive’s employment without Cause, theCompany shall pay the Executive’s Base Salary and accrued and unused vacation earned through thedate of termination, at the rate in effect at the time of termination subject to standarddeductions and withholdings. In addition, subject to the limitations stated in Section 4.4.6 hereinand upon the Executive’s furnishing to the Company, and not revoking, an effective waiver andrelease of claims (a form of which is attached hereto as **Exhibit A**), the Executive shall beentitled to:               **(i) **continuation of the Executive’s annual Base Salary in effect at the time of terminationfor a period beginning upon the Effective Date of the Release and continuing for twelve (12)months thereafter (the ***“Without Cause Severance Period”***), less standard deductions andwithholdings, paid pursuant to the Company’s standard payroll practices, or, at the Executive’soption, payment in a lump sum of the Executive’s annual Base Salary, less standard deductions andwithholdings, within five (5) business days following the Effective Date of the Release; and               **(ii) **in the event the Executive elects continued coverage under COBRA in accordance withapplicable law, the Company will reimburse the Executive for the same portion of Executive’s COBRAhealth insurance premium as the percentage of health insurance premiums that it paid during theExecutive’s employment for up to the maximum period permitted under COBRA or Cal-COBRA, or theWithout Cause Severance Period, whichever is shorter, or, if earlier, until the Executive beginsfull-time employment with or in an entity or endeavor other than the Company;               **(iii) **the accelerated and full vesting of all Pre-Exchange Options such that the Pre-ExchangeOptions shall be fully vested and exercisable as of the Effective Date of
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the Release (the Pre-Exchange Option will otherwise be governed by the terms of the applicablestock option agreement and plan, as amended by Section 3.8 hereof); and               **(iv) **with respect to any unvested portion of the Awards, the accelerated vesting of theAwards such that the Awards shall be fully vested and exercisable as of the Effective Date of theRelease.               **4.4.6 Covenant Not to Compete.**Notwithstanding any provisions in this Agreement to thecontrary, the Company’s obligations and the Executive’s rights pursuant to Sections 4.4.3, 4.4.4and 4.4.5 shall cease and be rendered a nullity immediately should the Executive violate anyprovision of Section 2.2 herein, or should the Executive violate the terms and conditions of theExecutive’s Proprietary Information and Inventions Agreement.          **4.5 Definitions.**For purposes of this Agreement, the following terms shall have thefollowing meanings:               **4.5.1 Complete Disability. “Complete Disability”**shall mean theinability of the Executive to perform the Executive’s duties under this Agreement, whetherwithor without reasonable accommodation, because the Executive has become permanently disabledwithin the meaning of any policy of disability income insurance covering employees of theCompany then in force. In the event the Company has no policy of disability income insurancecovering employees of the Company in force when the Executive becomes disabled, the term***“Complete Disability”***shall mean the inability of the Executive to perform the Executive’sduties under this Agreement, whether with or without reasonable accommodation, by reason ofany incapacity, physical or mental, which the Board, based upon medical advice or an opinionprovided by a licensed physician acceptable to the Board, determines to have incapacitated theExecutive from satisfactorily performing all of the Executive’s usual services for theCompany,with or without reasonable accommodation, for a period of at least one hundred twenty (120)days during any twelve (12) month period (whether or not consecutive). Based upon suchmedical advice or opinion, the determination of the Board shall be final and binding and thedatesuch determination is made shall be the date of such Complete Disability for purposes of thisAgreement.               **4.5.2 Good Reason. “Good Reason”**for the Executive to terminate theExecutive’s employment hereunder shall mean the occurrence of any of the following events:               **(i) **without the Executive’s consent, a significant reduction in the Executive’s duties,position, authority, or responsibilities relative to the duties, position, authority, orresponsibilities in effect immediately prior to such reduction;               **(ii) **without the Executive’s consent, the relocation of the Executive’s principal place ofbusiness to a point more than thirty-five (35) miles from its location in Irvine, California;               **(iii) **a reduction by the Company of the Executive’s base salary as initially set forth hereinor as the same may be increased from time to time, provided that if such
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reduction occurs in connection with a Company-wide decrease in Executive salaries and the percentdecrease in the Executive’s base salary does not exceed the percent decrease in base salary of anyother executive of the Company such reduction will not constitute Good Reason to terminateExecutive’s employment for purposes of this Agreement; or               **(iv) **without the Executive’s consent, a failure by the Company to obtain from any successor,before the succession takes place, an agreement to assume the obligations and perform all of theterms and conditions of this Agreement.               **4.5.3 Cause. *“Cause”***for the Company to terminate Executive’s employment hereunder shall meanthe occurrence of any of the following events, as determined reasonably and in good faith by theBoard or a committee designated by the Board:               **(i) **the Executive’s willful and habitual failure to attend to her duties as assigned by theBoard or officers of the Company to whom she reports;               **(ii) **misconduct by the Executive which materially and adversely reflects upon herability to perform her duties for the Company;               **(iii) **the Executive’s conviction of, or plea of guilty or *nolo contendere*to, a felony thatis likely to inflict or has inflicted material injury on the business of the Company;               **(iv) **the Executive’s engaging or in any manner participating in any activity which violatesany provisions of Section 2 hereof or the Executive’s Proprietary Information and InventionsAgreement with the Company; or               **(v) **the Executive’s commission of any fraud against the Company, its controlled Affiliates,employees, agents or customers or use or intentional appropriation for her personal use or benefitof any funds or properties of the Company not authorized by the Board to be so used orappropriated.          **4.6 Survival of Certain Sections.**Sections 2.2, 4.4.3, 4.4.4, 4.4.5, and 4.4.6,and 16 of this Agreement will survive the termination of this Agreement.          **4.7 Parachute Payment.**If any payment or benefit the Executive wouldreceive pursuant to this Agreement, any other agreement or arrangement or otherwise*(****“Payment”****)*would (i) constitute a **“parachute payment”**within the meaning of Code Section280G, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 oftheCode (the ***“Excise Tax”****),*then such Payment shall be reduced to the Reduced Amount. The***“Reduced Amount”***shall be either (x) the largest portion of the Payment that would result innoportion of the Payment being subject to the Excise Tax or (y) the largest portion of thePayment,which such amount, after taking into account all applicable federal, state and localemploymenttaxes, income taxes, and the Excise Tax (all computed at the highest applicable marginalrate),results in the Executive’s receipt, on an after-tax basis, of the greater amount of thePaymentnotwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If areduction in payments or benefits constituting **“parachute payments”**is necessary so that the
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Payment equals the Reduced Amount, reduction shall occur in the following order unless theExecutive elects in writing a different order *(provided, however,*that such election shall besubject to Company approval if made on or after the effective date of the event that triggers thePayment): reduction of cash payments; cancellation of accelerated vesting of stock awards;reduction of employee benefits. In the event that acceleration of vesting of stock awardcompensation is to be reduced, such acceleration of vesting shall be cancelled in the reverseorder of the date of grant of the Executive’s stock awards unless the Executive elects in writinga different order for cancellation.     An accounting firm agreed upon by the Company and the Executive shall perform the foregoingcalculations. The Company shall bear all expenses with respect to the determinations by suchaccounting firm required to be made hereunder.     The accounting firm engaged to make the determinations hereunder shall provide itscalculations, together with detailed supporting documentation, to the Executive and the Companywithin fifteen (15) calendar days after the date on which the Executive’s right to a Payment istriggered (if requested at that time by the Executive or the Company) or such other time asrequested by the Executive or the Company. If the accounting firm determines that no Excise Tax ispayable with respect to a Payment, either before or after the application of the Reduced Amount,it shall furnish the Executive and the Company with an opinion reasonably acceptable to theExecutive that no Excise Tax will be imposed with respect to such Payment. Any good faithdeterminations of the accounting firm made hereunder shall be final, binding and conclusive uponthe Executive and the Company.     **5. ****Confidential And Proprietary Information; Nonsolicitation.**          As a condition of employment the Executive agrees to execute and abide by the ProprietaryInformation and Inventions Agreement attached hereto as **Exhibit B**.     **6. ****Assignment and Binding Effect.**          This Agreement shall be binding upon and inure to the benefit of the Executive and theExecutive’s heirs, executors, personal representatives, assigns, administrators and legalrepresentatives. Because of the unique and personal nature of the Executive’s duties under thisAgreement, neither this Agreement nor any rights or obligations under this Agreement shall beassignable by the Executive. This Agreement shall be binding upon and inure to the benefit of theCompany and its successors, assigns and legal representatives. Any such successor of the Companywill be deemed substituted for the Company under the terms of this Agreement for all purposes. Forthis purpose, “successor” means any person, firm, corporation or other business entity which at anytime, whether by purchase, merger or otherwise, directly or indirectly acquires all orsubstantially all of the assets or business of the Company.     **7. ****Notices.**          All notices or demands of any kind required or permitted to be given by the Company or theExecutive under this Agreement shall be given in writing and shall be personally
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delivered (and receipted for) or faxed during normal business hours or mailed by certifiedmail, return receipt requested, postage prepaid, addressed as follows:If to the Company: