REPRESENTATIVE OR PERSON HAVING THE CARE OR CUSTODY OF SUCH
MINOR, INCOMPETENT PERSON OR INCAPABLE PERSON.
THE COMPANY MAY REQUIRE PROOF OF
INCOMPETENCE, MINORITY OR GUARDIANSHIP AS IT MAY DEEM APPROPRIATE PRIOR TO
DISTRIBUTION OF THE BENEFIT.
SUCH DISTRIBUTION SHALL COMPLETELY DISCHARGE THE
COMPANY FROM ALL LIABILITY WITH RESPECT TO SUCH BENEFIT.
8.3.
CONDITIONS TO RECEIVE SEVERANCE BENEFITS.
EMPLOYEE WILL RECEIVE THE
CHANGE OF CONTROL SEVERANCE BENEFITS DESCRIBED ABOVE ONLY IF HE COMPLIES WITH
ALL OF THE FOLLOWING CONDITIONS AND CONTINUES TO COMPLY WITH THE FOLLOWING FOR
THE DURATION OF THE SEVERANCE PERIOD:
(A)
EMPLOYEE EXECUTES A FULL GENERAL RELEASE IN FAVOR OF THE COMPANY
(THE "GENERAL RELEASE") IN THE FORM ATTACHED HERETO AS EXHIBIT A; AND
(B)
EMPLOYEE COMPLIES WITH THE COMPANY'S THEN IN EFFECT TRADE SECRETS
POLICIES AND THE EMPLOYEE PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT (THE
"INFORMATION AND INVENTIONS AGREEMENT"), ATTACHED HERETO AS EXHIBIT B, OR ANY
FUTURE VERSION OF AN INVENTIONS AND PROPRIETARY INFORMATION AGREEMENT BETWEEN
EMPLOYEE AND THE COMPANY IN ACCORDANCE WITH THE TERMS THEREOF.
(C)
EMPLOYEE COMPLIES WITH EMPLOYEE'S OBLIGATIONS UNDER THIS AGREEMENT
INCLUDING, WITHOUT LIMITATION, THE OBLIGATION SET FORTH IN SECTIONS
13 ("CONFIDENTIALITY AND PROPRIETARY RIGHTS"), 14 ("NONCOMPETITION"),
15 ("NONSOLICITATION OF CUSTOMERS"), 16 ("NONSOLICITATION OF EMPLOYEES"),
17 ("NONDISPARAGEMENT").
THE COMPANY'S OBLIGATION TO MAKE PAYMENTS UNDER THIS SECTION 8 SHALL CEASE IF AT
ANY TIME EMPLOYEE IS NOT IN COMPLIANCE WITH ANY OF THE FOREGOING AGREEMENTS.
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9.
SECTION 409A OF THE U.S. INTERNAL REVENUE CODE.
9.1.
THE SPECIFIED EMPLOYEE RULE.
TO THE EXTENT ANY AMOUNT PAYABLE UNDER
THIS AGREEMENT REPRESENTS A PAYMENT UNDER A "NONQUALIFIED DEFERRED COMPENSATION
PLAN" (AS DEFINED IN SECTION 409A OF THE CODE FOLLOWING A TERMINATION OF
EMPLOYMENT OR ANY "SEPARATION FROM SERVICE" AS DEFINED IN
SECTION 409A(A)(2)(A)(I) OF THE CODE), THEN, NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT TO THE CONTRARY, SUCH PAYMENT SHALL BE DELAYED AND MADE ON THE
FIRST DAY OF THE SEVENTH (7TH) MONTH FOLLOWING EMPLOYEE'S "SEPARATION FROM
SERVICE," BUT ONLY IF THE EMPLOYEE IS DEEMED TO BE A "SPECIFIED EMPLOYEE" WITHIN
THE MEANING OF SECTION 409A(A)(2)(B)(I) OF THE CODE.
9.2.
GOOD FAITH INTENTION.
THE COMPANY AND EMPLOYEE INTEND IN GOOD FAITH
THAT THIS AGREEMENT COMPLY WITH THE APPLICABLE REQUIREMENTS OF SECTION 409A OF
THE CODE AND THAT THIS AGREEMENT BE CONSTRUED, INTERPRETED AND ADMINISTERED IN
ACCORDANCE WITH SUCH INTENT.
IF THE COMPANY OR EMPLOYEE BELIEVES, AT ANY TIME,
THAT THIS AGREEMENT DOES NOT COMPLY WITH SECTION 409A OF THE CODE, IT WILL
PROMPTLY ADVISE THE OTHER PARTY AND WILL NEGOTIATE REASONABLY AND IN GOOD FAITH
TO AMEND THE TERMS OF THIS AGREEMENT, WITH THE MOST LIMITED POSSIBLE ECONOMIC
EFFECT ON COMPANY AND EMPLOYEE, SUCH THAT IT COMPLIES WITH SECTION 409A OF THE
CODE.
10.
DEFINITIONS.
10.1.
ACCRUED OBLIGATIONS.
FOR PURPOSES OF THIS AGREEMENT, "ACCRUED
OBLIGATIONS" SHALL MEAN:
(I) PAYMENT OF EMPLOYEE'S ANNUAL BASE SALARY THROUGH
THE DATE OF TERMINATION TO THE EXTENT NOT THERETOFORE PAID; (II) PAYMENT OF ANY
ACCRUED VACATION PAY NOT YET PAID BY COMPANY; AND (III) PAYMENT OF OUTSTANDING
AND UNPAID BUSINESS