the event constituting Good Reason, setting forth in reasonable detail the
specific conduct of the Company that constitutes Good Reason and the specific
provisions of this Agreement on which the Executive relies.
(f)
General Release.
The receipt of any payment as set forth in
Sections 11(d)-(e) above shall be contingent upon Executive's execution of an
agreement acceptable to the Company that (i) waives any rights the Executive may
otherwise have against the Company and its Affiliates, (ii) releases the Company
and its Affiliates from actions, suits, claims, proceedings and demands related
to the period of employment and/or the termination of employment, and
(iii) contains certain other obligations which shall be set forth at the time of
the termination.
For purposes of this Employment Agreement, the term
"Affiliates" means any individual, corporation, partnership, association,
joint-stock company, trust, unincorporated association or other entity (other
than the Company) that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company including, without limitation, any member of an affiliated group of
which the Company is a common parent corporation as provided in Section 1404 of
the Code.
(g)
Survival.
Termination of the Employment Period in accordance with
this Section 11, or expiration of the Employment Period, will not affect the
provisions of this Employment Agreement that survive such termination,
including, without limitation, the provisions in the Confidentiality, Inventions
and Non-Solicitation Agreement and in Section 9 of this Agreement, and will not
limit either party's ability to pursue remedies at law or equity.
12.
EXECUTIVE ASSISTANCE.
BOTH DURING AND AFTER EXECUTIVE'S
EMPLOYMENT WITH THE COMPANY, EXECUTIVE SHALL, UPON REASONABLE NOTICE, FURNISH
THE COMPANY WITH SUCH INFORMATION AS MAY BE IN EXECUTIVE'S POSSESSION OR
CONTROL, AND COOPERATE WITH THE COMPANY, AS THE COMPANY MAY REASONABLY REQUEST
(WITH DUE CONSIDERATION TO EXECUTIVE'S BUSINESS ACTIVITIES AND OBLIGATIONS AFTER
THE EMPLOYMENT PERIOD), IN CONNECTION WITH ANY LITIGATION, CLAIM, OR OTHER
DISPUTE IN WHICH THE COMPANY OR ANY OF ITS AFFILIATES IS OR MAY BECOME A PARTY.
13.
EFFECT OF PRIOR AGREEMENTS.
THIS EMPLOYMENT AGREEMENT, THE NEW
MANAGEMENT AGREEMENT, THE STOCKHOLDERS AGREEMENT, THE EQUITY PURCHASE AGREEMENT,
AND THE CONFIDENTIALITY, INVENTIONS AND NON-SOLICITATION AGREEMENT CONTAIN THE
ENTIRE UNDERSTANDING AMONG PARENT, THE COMPANY AND EXECUTIVE RELATING TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE
9
ANY PRIOR EMPLOYMENT AGREEMENT AMONG EXECUTIVE, PARENT AND THE COMPANY OR OTHER
AGREEMENT RELATING TO THE SUBJECT MATTER HEREOF AMONG PARENT, THE COMPANY AND
EXECUTIVE, INCLUDING BUT NOT LIMITED TO (I) THAT CERTAIN LETTER AGREEMENT
PREVIOUSLY EXECUTED BY THE COMPANY AND EXECUTIVE DATED SEPTEMBER 6, 2005 AND
(II) THE MANAGEMENT AGREEMENT.
EXECUTIVE AGREES AND ACKNOWLEDGES THAT HE IS
ENTITLED TO NO BENEFITS OR COMPENSATION AND HAS NO OTHER RIGHTS AGAINST THE
COMPANY, THE PARENT, AND THEIR AFFILIATES, EXCEPT AS OTHERWISE SET FORTH IN THIS
EMPLOYMENT AGREEMENT AND, TO THE EXTENT ANY SUCH BENEFITS, COMPENSATION OR
RIGHTS ARE OWED TO HIM, EXPRESSLY WAIVES SUCH BENEFITS, COMPENSATION AND RIGHTS;
PROVIDED, HOWEVER, THAT THE MANAGEMENT AGREEMENT SHALL CONTINUE TO APPLY TO