CLAIMED TO BE OWED BY THE EXECUTIVE TO THE COMPANY, OR
OTHERWISE.
6.
CONFIDENTIALITY, NON-COMPETITION, AND ASSIGNMENT OF INVENTIONS.
THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT ARE CONTINGENT UPON THE
EXECUTIVE'S EXECUTION OF THE COMPANY'S PROPRIETARY INFORMATION, INVENTIONS, AND
COMPETITION AGREEMENT (THE "PROPRIETARY INFORMATION AGREEMENT").
THE PARTIES
AGREE THAT THE OBLIGATIONS SET FORTH IN THE PROPRIETARY INFORMATION AGREEMENT
SHALL SURVIVE TERMINATION OF THIS AGREEMENT AND TERMINATION OF THE EXECUTIVE'S
EMPLOYMENT, REGARDLESS OF THE REASON FOR SUCH TERMINATION.
7.
ENFORCEABILITY.
IF ANY PROVISION OF THIS AGREEMENT SHALL BE
DEEMED INVALID OR UNENFORCEABLE AS WRITTEN, THIS AGREEMENT SHALL BE CONSTRUED,
TO THE GREATEST EXTENT POSSIBLE, OR MODIFIED, TO THE EXTENT ALLOWABLE BY LAW, IN
A MANNER WHICH SHALL RENDER IT VALID AND ENFORCEABLE.
NO INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION CONTAINED HEREIN SHALL AFFECT ANY OTHER
PORTION OF THIS AGREEMENT.
8.
NOTICES.
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ANY
NOTICE REQUIRED OR PERMITTED BY THIS AGREEMENT SHALL BE IN WRITING AND SHALL BE
DELIVERED AS FOLLOWS WITH NOTICE DEEMED GIVEN AS INDICATED: (I)
BY PERSONAL
DELIVERY WHEN DELIVERED PERSONALLY; (II) BY OVERNIGHT COURIER UPON WRITTEN
VERIFICATION OF RECEIPT; (III) BY TELECOPY OR FACSIMILE TRANSMISSION UPON
ACKNOWLEDGMENT OF RECEIPT OF ELECTRONIC TRANSMISSION; OR (IV) BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, UPON VERIFICATION OF RECEIPT.
NOTICES TO THE EXECUTIVE SHALL BE SENT TO THE LAST KNOWN ADDRESS IN THE
COMPANY'S RECORDS OR SUCH OTHER ADDRESS AS THE EXECUTIVE MAY SPECIFY IN
WRITING.
NOTICES TO THE COMPANY SHALL BE SENT TO THE COMPANY'S CEO AND LEAD
DIRECTOR, OR TO SUCH OTHER COMPANY REPRESENTATIVE AS THE COMPANY MAY SPECIFY IN
WRITING.
9.
CLAIMS FOR BENEFITS.
ALL CLAIMS BY THE EXECUTIVE FOR BENEFITS
UNDER THIS AGREEMENT SHALL BE DIRECTED TO AND DETERMINED BY THE BOARD AND SHALL
BE IN WRITING.
ANY DENIAL BY THE BOARD OF A CLAIM FOR BENEFITS UNDER THIS
AGREEMENT SHALL BE DELIVERED TO THE EXECUTIVE IN WRITING AND SHALL SET FORTH
5
THE SPECIFIC REASONS FOR THE DENIAL AND THE SPECIFIC PROVISIONS OF THIS
AGREEMENT RELIED UPON.
THE BOARD SHALL AFFORD A REASONABLE OPPORTUNITY TO THE
EXECUTIVE FOR A REVIEW OF THE DECISION DENYING A CLAIM AND SHALL FURTHER ALLOW
THE EXECUTIVE TO APPEAL TO THE BOARD A DECISION OF THE BOARD WITHIN SIXTY (60)
DAYS AFTER NOTIFICATION BY THE BOARD THAT THE EXECUTIVE'S CLAIM HAS BEEN DENIED.
10.
MODIFICATIONS AND AMENDMENTS.
THE TERMS AND PROVISIONS OF THIS
AGREEMENT MAY BE MODIFIED OR AMENDED ONLY BY WRITTEN AGREEMENT EXECUTED BY THE
COMPANY AND THE EXECUTIVE.
THE COMPANY AND THE EXECUTIVE AGREE THAT THEY WILL
JOINTLY EXECUTE AN AMENDMENT TO MODIFY THIS AGREEMENT TO THE EXTENT NECESSARY TO
COMPLY WITH THE REQUIREMENTS OF CODE SECTION 409A, OR ANY SUCCESSOR STATUTE,
REGULATION AND GUIDANCE THERETO; PROVIDED THAT NO SUCH AMENDMENT SHALL INCREASE
THE TOTAL FINANCIAL OBLIGATION OF THE COMPANY UNDER THIS AGREEMENT.
11.
WAIVERS AND CONSENTS.
THE TERMS AND PROVISIONS OF THIS AGREEMENT
MAY BE WAIVED, OR CONSENT FOR THE DEPARTURE THEREFROM GRANTED, ONLY BY A WRITTEN
DOCUMENT EXECUTED BY THE PARTY ENTITLED