DEVOTE
SUBSTANTIALLY ALL OF EXECUTIVE'S BUSINESS TIME, ENERGY, AND SKILL TO THE
PERFORMANCE OF HIS DUTIES UNDER THIS AGREEMENT AND SHALL DEVOTE COMMERCIALLY
REASONABLE EFFORTS AND ATTENTION TO SUCH DUTIES. NOTWITHSTANDING THE FOREGOING,
THE COMPANY ACKNOWLEDGES THAT EXECUTIVE HAS INVESTMENT, CHARITABLE, AND
PROFESSIONAL INTERESTS AND OBLIGATIONS TO WHICH HE WILL ATTEND ON A CONTINUING
BASIS, BUT EXECUTIVE REPRESENTS AND COVENANTS THAT THESE ACTIVITIES WILL NOT
MATERIALLY INTERFERE WITH THE PERFORMANCE OF HIS DUTIES HEREUNDER.
(B)
DURING THE TRANSITION PERIOD, EXECUTIVE SHALL SERVE IN THE ROLE OF
EXECUTIVE CHAIRMAN (IN ADDITION TO HIS SERVICE AS A MEMBER OF THE BOARD),
SUBJECT, HOWEVER, TO SECTION 4(C) BELOW. AS EXECUTIVE CHAIRMAN, EXECUTIVE SHALL
INITIALLY BE RESPONSIBLE DURING THE TRANSITION PERIOD FOR TRANSITION OF THE
LEADERSHIP OF THE COMPANY TO SUCH PERSON OR PERSONS WHO ARE SELECTED BY THE
BOARD (WHICH PERSON OR PERSONS SHALL, EXCEPT AS MAY OTHERWISE BE DETERMINED BY
THE BOARD, REPORT TO THE BOARD AND NOT TO EXECUTIVE), AND THEREAFTER DURING THE
TRANSITION PERIOD, EXECUTIVE SHALL SERVE AS A SENIOR ADVISOR TO SUCH PERSON OR
PERSONS, AND TO THE BOARD, USING HIS EXPERIENCE AND ROLE AS FOUNDER AND AS
(THEN) PAST CEO TO HELP GUIDE THE COMPANY'S GROWTH STRATEGY AND DEVELOPMENT. IN
ADDITION, EXECUTIVE SHALL HAVE SUCH OTHER SPECIFIC RESPONSIBILITIES AND
AUTHORITY AS SHALL FROM TIME TO TIME BE ESTABLISHED BY THE BOARD, TO WHICH
Executive shall report. During the Transition Period, Executive shall not be
required to devote more than ten days per fiscal quarter to such duties, in
addition to routine duties he may have as a member of the Board.
(C)
THE COMPANY AND EXECUTIVE ACKNOWLEDGE THAT THE ABILITY OF
EXECUTIVE TO SERVE ON THE BOARD, AND HENCE TO SERVE AS AND TO HOLD THE TITLES OF
"CHAIRMAN" AND "EXECUTIVE CHAIRMAN," IS DEPENDENT AND CONDITIONED UPON
EXECUTIVE'S BEING NOMINATED FROM TIME TO TIME BY THE BOARD (OR THE NOMINATING
COMMITTEE THEREOF) FOR ELECTION TO THE BOARD, EXECUTIVE'S THEN BEING ELECTED
FROM TIME TO TIME TO SERVE ON THE BOARD BY THE STOCKHOLDERS OF THE COMPANY, AND,
UPON THE ELECTION OF EXECUTIVE TO SERVE ON THE BOARD, THE DESIGNATION OF
EXECUTIVE BY THE BOARD TO SERVE AS CHAIRMAN OR EXECUTIVE CHAIRMAN. ACCORDINGLY,
THE COMPANY AGREES THAT, EXCEPT TO THE EXTENT PROVIDED IN SUBSECTION (D)(1),
EXECUTIVE SHALL, DURING THE TERM, CONTINUE TO BE NOMINATED TO SERVE ON THE BOARD
AS HIS TERM WOULD OTHERWISE FROM TIME TO TIME EXPIRE.
(D)
NOTWITHSTANDING SUBSECTIONS (A), (B), AND (C):
(1)
IF THE BOARD, BY A MAJORITY VOTE OF ITS MEMBERS (EXCLUDING
EXECUTIVE), DETERMINES IN GOOD FAITH AFTER RECEIPT OF ADVICE OF COUNSEL THAT
NOMINATING EXECUTIVE TO SERVE ON THE BOARD WOULD RESULT IN A BREACH OF ITS
FIDUCIARY DUTIES AS DIRECTORS UNDER APPLICABLE LAW (OR, IN THE CASE OF THE
NOMINATING COMMITTEE, A VIOLATION OF ITS CHARTER), NEITHER THE BOARD NOR THE
NOMINATING COMMITTEE SHALL HAVE ANY OBLIGATION TO NOMINATE EXECUTIVE FOR
ELECTION TO THE BOARD; AND
(2)
IF (I) THE STOCKHOLDERS FOR ANY REASON DO NOT REELECT EXECUTIVE TO
THE