EXTENT ALLOWED BY APPLICABLE LAW AND SUBJECT TO THE
TERMS OF THE INDEMNIFICATION PROVISIONS AND ANY APPLICABLE DIRECTOR AND OFFICER
LIABILITY INSURANCE POLICY, IT WILL CONTINUE TO PAY O'SHEA'S REASONABLE LEGAL
FEES RELATING TO ANY MATTER THAT OCCURRED DURING, OR THAT RELATES TO O'SHEA'S
EMPLOYMENT BY THE COMPANY.
7.
BINDING NATURE OF AGREEMENT.
THIS
AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND
THEIR RESPECTIVE HEIRS, ADMINISTRATORS, REPRESENTATIVES, EXECUTORS, SUCCESSORS
AND ASSIGNS.
8.
USE OF THE AGREEMENT AS EVIDENCE.
THIS
AGREEMENT MAY NOT BE USED AS EVIDENCE IN ANY SUBSEQUENT PROCEEDING OF ANY KIND,
EXCEPT ONE IN WHICH EITHER PARTY ALLEGES A BREACH OF THE TERMS OF THIS AGREEMENT
OR ELECTS TO USE THIS AGREEMENT AS A DEFENSE TO ANY CLAIM.
2
9.
ENTIRE AGREEMENT; MODIFICATIONS.
WITH
THE EXCEPTION OF THE STOCK OPTION AND RESTRICTED STOCK AGREEMENTS APPLICABLE TO
THE GRANTS SET FORTH IN EXHIBIT A HERETO, THE COMPANY'S STOCK OPTION AND
INCENTIVE STOCK PLAN UNDER WHICH SUCH EQUITY INCENTIVES WERE GRANTED, THE
INVENTION, NON-DISCLOSURE AND PERSONAL CONDUCT AGREEMENT EXECUTED BY O'SHEA ON
OCTOBER 1, 1999, AND THE EXECUTIVE RETENTION AGREEMENT DATED FEBRUARY 1, 2002,
WHICH WILL SURVIVE AND REMAIN IN FULL FORCE AND EFFECT, THIS AGREEMENT CONTAINS
THE ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE MATTERS
COVERED HEREBY, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS COMMUNICATIONS,
E-MAILS, AGREEMENTS, REPRESENTATIONS, UNDERSTANDINGS OR NEGOTIATIONS BETWEEN
O'SHEA, THE COMPANY AND/OR THEIR AGENTS AND ATTORNEYS, INCLUDING BUT NOT LIMITED
TO THE OFFER LETTER SIGNED BY THE PARTIES AND BEARING THE TYPED DATE
SEPTEMBER 10, 1999.
THIS AGREEMENT MAY BE MODIFIED ONLY BY A WRITTEN AGREEMENT
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO.
NO WAIVER
OF THIS AGREEMENT OR ANY PROVISION HEREOF SHALL BE BINDING UPON THE PARTY
AGAINST WHOM ENFORCEMENT OF SUCH WAIVER IS SOUGHT UNLESS IT IS MADE IN WRITING
AND SIGNED BY OR ON BEHALF OF SUCH PARTY.
10.
SECTION 409A.
NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, TO THE EXTENT
THAT ANY OF THE PAYMENTS THAT MAY BE MADE HEREUNDER CONSTITUTE "NONQUALIFIED
DEFERRED COMPENSATION", WITHIN THE MEANING OF SECTION 409A AND YOU ARE A
"SPECIFIED EMPLOYEE" UPON YOUR SEPARATION (AS DEFINED UNDER SECTION 409A), THE
TIMING OF ANY SUCH PAYMENT FOLLOWING THE SEPARATION DATE SHALL BE MODIFIED IF,
ABSENT SUCH MODIFICATION, SUCH PAYMENT WOULD OTHERWISE BE SUBJECT TO PENALTY
UNDER SECTION 409A.
IN ANY EVENT, THE COMPANY MAKES NO REPRESENTATION OR
WARRANTY AND SHALL HAVE NO LIABILITY TO YOU OR TO ANY OTHER PERSON IF ANY
PROVISIONS OF THIS AGREEMENT ARE DETERMINED TO CONSTITUTE "NONQUALIFIED DEFERRED
COMPENSATION" SUBJECT TO SECTION 409A BUT DO NOT SATISFY THE REQUIREMENTS OF
THAT SECTION.
11.
FURTHER ASSURANCES.
THE PARTIES AGREE TO
EXECUTE, ACKNOWLEDGE (IF REASONABLY REQUESTED), AND DELIVER SUCH DOCUMENTS,
CERTIFICATES OR OTHER INSTRUMENTS AND TAKE SUCH OTHER ACTIONS AS MAY BE
REASONABLY REQUIRED FROM TIME TO TIME TO CARRY OUT THE INTENTS AND PURPOSES OF
THIS AGREEMENT, PROVIDED THEY DO NOT IMPOSE ANY MATERIAL ADDITIONAL OBLIGATIONS
UPON EITHER PARTY.