THE EVENT OF ANY
DISPUTE OR CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS OF BREACH OF CONTRACT, WRONGFUL TERMINATION OR
AGE, SEX, RACE OR OTHER DISCRIMINATION), EMPLOYEE AND THE COMPANY AGREE THAT ALL
SUCH DISPUTES SHALL BE FULLY AND FINALLY RESOLVED BY BINDING ARBITRATION
CONDUCTED BY THE AMERICAN ARBITRATION ASSOCIATION IN AUSTIN, TEXAS IN ACCORDANCE
WITH ITS NATIONAL EMPLOYMENT DISPUTE RESOLUTION RULES, AS THOSE RULES ARE
CURRENTLY IN EFFECT (AND NOT AS THEY MAY BE MODIFIED IN THE FUTURE). EMPLOYEE
ACKNOWLEDGES THAT BY ACCEPTING THIS ARBITRATION PROVISION HE IS WAIVING ANY
RIGHT TO A JURY TRIAL IN THE EVENT OF SUCH DISPUTE; PROVIDED, HOWEVER, THAT THIS
ARBITRATION PROVISION SHALL NOT APPLY TO ANY DISPUTES OR CLAIMS RELATING TO OR
ARISING OUT OF SECTIONS 5, 6, ,7, OR 8 OR ANY MISUSE OR MISAPPROPRIATION OF
CONFIDENTIAL INFORMATION, WORK PRODUCT OR OTHER TRADE SECRETS OR PROPRIETARY
INFORMATION OF THE COMPANY, ITS SUBSIDIARIES OR AFFILIATES.
11.
ATTORNEYS' FEES. THE PREVAILING PARTY IN ANY
DISPUTE OR CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT SHALL BE ENTITLED
TO RECOVER FROM THE LOSING PARTY ALL FEES AND EXPENSES OF ANY NATURE OR KIND
(INCLUDING, WITHOUT LIMITATION, ATTORNEY'S FEES AND EXPENSES) INCURRED IN ANY
SUCH DISPUTE OR CLAIM.
12.
INTERPRETATION. THE COMPANY AND EMPLOYEE
AGREE THAT THIS AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES.
13.
SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL
INURE TO THE BENEFIT OF AND BE BINDING UPON EMPLOYEE AND ITS SUCCESSORS AND
ASSIGNS. IN VIEW OF THE PERSONAL NATURE OF THE SERVICES TO BE PERFORMED UNDER
THIS AGREEMENT BY EMPLOYEE, EMPLOYEE SHALL NOT HAVE THE RIGHT TO SELL, ASSIGN,
PLEDGE, HYPOTHECATE, DONATE OR OTHERWISE TRANSFER ANY OF HIS RIGHTS, OBLIGATIONS
OR BENEFITS HEREUNDER.
14.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES
THE ENTIRE EMPLOYMENT AGREEMENT BETWEEN THE COMPANY AND EMPLOYEE REGARDING THE
TERMS AND CONDITIONS OF HIS EMPLOYMENT, WITH THE EXCEPTION OF THOSE CERTAIN
STOCK OPTION AGREEMENTS (COLLECTIVELY, THE "OPTION AGREEMENTS") PREVIOUSLY
ENTERED INTO BETWEEN EMPLOYEE AND THE COMPANY AND THAT CERTAIN EMPLOYEE
INVENTIONS AND PROPRIETARY RIGHTS ASSIGNMENT AGREEMENT, DATED JANUARY 19, 2007,
BETWEEN THE COMPANY AND EMPLOYEE (THE "ASSIGNMENT AGREEMENT"); PROVIDED,
HOWEVER, THAT THE PROVISIONS OF THIS AGREEMENT SHALL CONTROL IF THERE EXISTS ANY
CONFLICTING PROVISIONS IN THE OPTION AGREEMENTS OR THE ASSIGNMENT AGREEMENT,
EXCEPT THAT, TO THE EXTENT THE TERMS OF ANY OF THE OPTION AGREEMENTS PROVIDE FOR
GREATER ACCELERATION OF VESTING OF STOCK OPTIONS HELD BY EMPLOYEE FOLLOWING THE
TERMINATION OF EMPLOYEE'S EMPLOYMENT WITH THE COMPANY THAN THAT PROVIDED IN
SECTION 4(B)(IV) OR OTHERWISE IN THIS AGREEMENT, THE TERMS OF SUCH OPTION
AGREEMENTS SHALL CONTROL WITH RESPECT TO THE ACCELERATED VESTING OF SUCH STOCK
OPTIONS. THIS AGREEMENT, TOGETHER WITH THE OPTION AGREEMENTS AND THE ASSIGNMENT
AGREEMENT, SUPERSEDE AND TERMINATE ALL PRIOR NEGOTIATIONS, REPRESENTATIONS OR
AGREEMENTS BETWEEN THE COMPANY AND EMPLOYEE, WHETHER WRITTEN OR ORAL, REGARDING
EMPLOYEE'S EMPLOYMENT BY THE COMPANY, INCLUDING THAT CERTAIN SEVERANCE AGREEMENT
DATED