the Release.
In addition, the
Severance Payment will not be paid or provided until the Release actually
becomes effective.
In the event your termination of employment occurs at a time
during the calendar year where the Release Deadline could occur in the calendar
year following the calendar year in which your termination occurs, then the
Change of Control Severance Payment under this Agreement that would be
considered deferred compensation pursuant to Section 409A of the Code (as
described in Section 12(a)) will be paid on the first payroll date to occur
during the calendar year following the calendar year in which such termination
occurs, or such later time (i) as required by the payment schedule applicable to
each payment or benefit as set forth in Section 6, (ii) the date the Release
becomes effective or (iii) as required by Section 12(a).
7.
CONFIDENTIAL INFORMATION AND INVENTION
ASSIGNMENT AGREEMENT.
THIS AGREEMENT
AND COMMENCEMENT OF EMPLOYMENT WITH THE
COMPANY IS CONTINGENT UPON THE EXECUTION, AND DELIVERY TO AN OFFICER OF THE
COMPANY, OF THE COMPANY'S PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT (THE
"CONFIDENTIALITY AGREEMENT") A COPY OF WHICH HAS BEEN PROVIDED PREVIOUSLY
FOR
YOUR REVIEW AND EXECUTION.
8.
CERTAIN DEFINITIONS.
A.
"GOOD REASON."
AS USED IN THIS
AGREEMENT, A RESIGNATION FOR "GOOD REASON" WILL OCCUR IF YOU COMPLY WITH THE
GOOD REASON PROCESS AND RESIGN YOUR EMPLOYMENT AS A RESULT OF (A) A MATERIAL
REDUCTION WITHOUT CAUSE IN YOUR TITLE OR PRIMARY DUTIES AND RESPONSIBILITIES AS
EXECUTIVE VICE PRESIDENT, WORLDWIDE SALES AND FIELD OPERATIONS, OR (B) A
REDUCTION WITHOUT CAUSE BY MORE THAN FIFTEEN PERCENT (15%) IN YOUR STARTING BASE
SALARY, OR (C) A RELOCATION TO AN OFFICE OR LOCATION THAT IS MORE THAN 50 MILES
FROM THE OFFICE YOU WERE ORIGINALLY HIRED TO WORK FOR THE COMPANY, OR (D) THE
COMPANY MATERIALLY BREACHES THIS AGREEMENT OR ANY OTHER MATERIAL WRITTEN
AGREEMENT BETWEEN YOU AND THE COMPANY OR THE COMPANY MATERIALLY BREACHES OR
VIOLATES ANY LAWFUL MATERIAL EMPLOYMENT POLICY OF THE COMPANY APPLICABLE TO
YOU.
"GOOD REASON PROCESS" SHALL MEAN
4
THAT (1) YOU REASONABLY DETERMINE IN GOOD FAITH THAT A "GOOD REASON" CONDITION
HAS OCCURRED; (2) YOU NOTIFY THE COMPANY IN WRITING OF THE OCCURRENCE OF THE
GOOD REASON CONDITION WITHIN 60 DAYS OF THE OCCURRENCE OF SUCH CONDITION;
(3) YOU COOPERATE IN GOOD FAITH WITH THE COMPANY'S EFFORTS, FOR A PERIOD NOT
LESS THAN 30 DAYS FOLLOWING SUCH NOTICE (THE "CURE PERIOD"), TO REMEDY THE
CONDITION; (4) NOTWITHSTANDING SUCH EFFORTS, THE GOOD REASON CONDITION CONTINUES
TO EXIST; AND (5) YOU TERMINATE YOUR EMPLOYMENT WITHIN 60 DAYS AFTER THE END OF
THE CURE PERIOD.
IF THE COMPANY CURES THE GOOD REASON CONDITION DURING THE CURE
PERIOD, GOOD REASON SHALL BE DEEMED NOT TO HAVE OCCURRED.
B.
"CAUSE."
AS USED IN THIS AGREEMENT,
"CAUSE" SHALL MEAN ANY OF THE FOLLOWING:
(I)
FAILURE TO PERFORM DUTIES.
YOU CONTINUE TO FAIL
TO PERFORM YOUR DUTIES FOR THE COMPANY AFTER A WRITTEN DEMAND FOR PERFORMANCE
HAS BEEN DELIVERED TO YOU BY THE COMPANY THAT IDENTIFIES