BINDING UPON THE SURVIVING CORPORATION, AND SUCH SURVIVING
CORPORATION SHALL BE TREATED AS THE COMPANY HEREUNDER.
(B)
THE COMPANY AGREES THAT IN CONNECTION WITH ANY BUSINESS
COMBINATION, IT WILL CAUSE ANY SUCCESSOR ENTITY TO THE COMPANY UNCONDITIONALLY
TO ASSUME BY WRITTEN INSTRUMENT DELIVERED TO EXECUTIVE (OR HIS BENEFICIARY OR
ESTATE), ALL OF THE OBLIGATIONS OF THE COMPANY HEREUNDER.
(C)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE BY
EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES, EXECUTORS, ADMINISTRATORS,
SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND LEGATEES.
IF EXECUTIVE SHALL DIE
WHILE ANY AMOUNTS WOULD BE PAYABLE TO EXECUTIVE HEREUNDER HAD EXECUTIVE
CONTINUED TO LIVE, ALL SUCH AMOUNTS, UNLESS OTHERWISE PROVIDED HEREIN, SHALL BE
PAID IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT TO SUCH PERSON OR PERSONS
APPOINTED IN WRITING BY EXECUTIVE TO RECEIVE SUCH AMOUNTS OR, IF NO PERSON IS SO
APPOINTED, TO EXECUTIVE'S ESTATE.
11.
NOTICE.
(A)
FOR PURPOSES OF THIS AGREEMENT, ALL NOTICES AND
OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND
SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN DELIVERED OR FIVE (5) DAYS AFTER
DEPOSIT IN THE UNITED STATES MAIL, CERTIFIED AND RETURN RECEIPT REQUESTED,
POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
If to Executive:
[Name and Address]
If to the Company:
DJO Incorporated
1430 Decision Street
Vista, California 92081
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10
(B)
A WRITTEN NOTICE OF EXECUTIVE'S DATE OF TERMINATION BY THE COMPANY
OR EXECUTIVE, AS THE CASE MAY BE, TO THE OTHER, SHALL (I) INDICATE THE SPECIFIC
TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON, (II) TO THE EXTENT
APPLICABLE, SET FORTH IN REASONABLE DETAIL THE FACTS AND CIRCUMSTANCES CLAIMED
TO PROVIDE A BASIS FOR TERMINATION OF EXECUTIVE'S EMPLOYMENT UNDER THE PROVISION
SO INDICATED AND (III) SPECIFY THE TERMINATION DATE, WHICH DATE SHALL BE NOT
LESS THAN FIFTEEN (15) DAYS (THIRTY (30) DAYS, IF TERMINATION IS BY THE COMPANY
FOR DISABILITY OR BY EXECUTIVE FOR GOOD REASON) NOR MORE THAN SIXTY (60) DAYS
AFTER THE GIVING OF SUCH NOTICE, UNLESS SUCH TERMINATION IS FOR CAUSE, IN WHICH
CASE THE EFFECTIVE DATE OF TERMINATION MAY BE THE SAME AS THE DATE NOTICE OF
SUCH TERMINATION IS PROVIDED TO EXECUTIVE.
THE FAILURE BY EXECUTIVE OR THE
COMPANY TO SET FORTH IN SUCH NOTICE ANY FACT OR CIRCUMSTANCE WHICH CONTRIBUTES
TO A SHOWING OF GOOD REASON OR CAUSE SHALL NOT WAIVE ANY RIGHT OF EXECUTIVE OR
THE COMPANY HEREUNDER OR PRECLUDE EXECUTIVE OR THE COMPANY FROM ASSERTING SUCH
FACT OR CIRCUMSTANCE IN ENFORCING EXECUTIVE'S OR THE COMPANY'S RIGHTS HEREUNDER.
12.
FULL SETTLEMENT.
THE COMPANY'S OBLIGATION TO MAKE ANY PAYMENTS
PROVIDED FOR IN THIS AGREEMENT AND OTHERWISE TO PERFORM ITS OBLIGATIONS
HEREUNDER SHALL BE IN LIEU AND IN FULL SETTLEMENT OF ALL OTHER SEVERANCE
PAYMENTS TO EXECUTIVE UNDER ANY OTHER SEVERANCE OR EMPLOYMENT AGREEMENT BETWEEN
EXECUTIVE AND THE COMPANY, AND ANY SEVERANCE PLAN