the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Employee and the Company
for all purposes.
For purposes of making the calculations required by this
Section, the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Section 280G and 4999 of the
Code.
The Company and the Employee shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section.
The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section.
7.
RELEASE AND NON-DISPARAGEMENT AGREEMENT.
AS A CONDITION TO
RECEIVING SEVERANCE OR OTHER BENEFITS UNDER THIS AGREEMENT, EMPLOYEE WILL BE
REQUIRED TO SIGN A WAIVER AND RELEASE OF ALL CLAIMS ARISING OUT OF HIS
INVOLUNTARY TERMINATION OR SEPARATION FOR GOOD REASON AND AN AGREEMENT NOT TO
DISPARAGE THE COMPANY, ITS DIRECTORS, OR ITS EXECUTIVE OFFICERS, IN A FORM
REASONABLY SATISFACTORY TO THE COMPANY.
NO SEVERANCE BENEFITS WILL BE PAID OR
PROVIDED UNTIL THE WAIVER AND RELEASE AGREEMENT BECOMES EFFECTIVE.
8.
DEATH OR DISABILITY.
WITH RESPECT TO EMPLOYEE'S EQUITY AWARDS,
IN THE EVENT OF EMPLOYEE'S DEATH OR DISABILITY AS SUCH TERMS ARE DEFINED IN THE
APPLICABLE EQUITY PLANS, AND EMPLOYEE IS STILL EMPLOYED BY THE COMPANY AT THE
TIME OF SUCH DEATH OR DISABILITY, THEN ALL OF EMPLOYEE'S EQUITY AWARDS SHALL
BECOME FULLY VESTED AND EXERCISABLE.
5
9.
NONSOLICITATION.
EMPLOYEE AGREES FURTHER THAT, FOR THE PERIOD
OF HIS EMPLOYMENT BY THE COMPANY AND FOR ONE (1) YEAR AFTER THE DATE OF
TERMINATION OF HIS EMPLOYMENT BY THE COMPANY, HE WILL NOT, EITHER DIRECTLY OR
THROUGH OTHERS, SOLICIT OR ATTEMPT TO SOLICIT ANY EMPLOYEE, INDEPENDENT
CONTRACTOR OR CONSULTANT OF THE COMPANY TO TERMINATE HIS OR HER RELATIONSHIP
WITH THE COMPANY IN ORDER TO BECOME AN EMPLOYEE, CONSULTANT OR INDEPENDENT
CONTRACTOR TO OR FOR ANY OTHER PERSON OR ENTITY.
10.
SUCCESSORS.
(A)
COMPANY'S SUCCESSORS.
ANY SUCCESSOR TO THE COMPANY (WHETHER DIRECT
OR INDIRECT AND WHETHER BY PURCHASE, LEASE, MERGER, CONSOLIDATION, LIQUIDATION
OR OTHERWISE) TO ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S BUSINESS AND/OR
ASSETS SHALL ASSUME THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT AND AGREE
EXPRESSLY TO PERFORM THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT IN THE SAME
MANNER AND TO THE SAME EXTENT AS THE COMPANY WOULD BE REQUIRED TO PERFORM SUCH
OBLIGATIONS IN THE ABSENCE OF A SUCCESSION.
FOR ALL PURPOSES UNDER THIS
AGREEMENT, THE TERM "COMPANY" SHALL INCLUDE ANY SUCCESSOR TO THE COMPANY'S
BUSINESS AND/OR ASSETS WHICH EXECUTES AND DELIVERS THE ASSUMPTION AGREEMENT
DESCRIBED IN THIS SUBSECTION (A) OR WHICH BECOMES BOUND BY THE TERMS OF THIS
AGREEMENT BY OPERATION OF LAW.
(B)
EMPLOYEE'S SUCCESSORS.
WITHOUT THE WRITTEN CONSENT OF THE COMPANY,
EMPLOYEE SHALL NOT ASSIGN OR TRANSFER THIS AGREEMENT OR ANY RIGHT OR OBLIGATION
UNDER THIS AGREEMENT TO ANY OTHER PERSON OR ENTITY.
NOTWITHSTANDING THE
FOREGOING, THE TERMS OF THIS AGREEMENT AND ALL RIGHTS OF EMPLOYEE HEREUNDER
SHALL