AND SIGNED THE SAME OF
HIS OR ITS OWN FREE WILL.
THIS AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT
IN A WRITING SIGNED BY BOTH EMPLOYEE AND THE CHIEF EXECUTIVE OFFICER OF THE
COMPANY.
NOTHING IN THIS AGREEMENT IS INTENDED TO RELIEVE THE PARTIES OF THEIR
OBLIGATIONS UNDER THE EMPLOYEE'S INDEMNITY AGREEMENT OR ANY CONFIDENTIAL OR
PROPRIETARY INFORMATION AGREEMENTS WITH THE COMPANY.
12.
APPLICABLE LAW.
THIS AGREEMENT SHALL BE
DEEMED TO HAVE BEEN ENTERED INTO AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT THAT AS PROVIDED IN
SECTION 9, THE LAW APPLICABLE TO ANY CONTROVERSY TO BE ARBITRATED SHALL BE THE
LAW OF THE STATE WHERE THE EMPLOYEE IS OR WAS EMPLOYED, OR APPLICABLE FEDERAL
LAW, EXCEPT THAT THE FEDERAL ARBITRATION ACT SHALL APPLY TO THE ISSUE OF
ARBITRABILITY.
13.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BIND THE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS, ASSIGNS, EXECUTORS,
AND ADMINISTRATORS OF EACH PARTY, AND INURE TO THE BENEFIT OF EACH PARTY, AND
HIS OR ITS HEIRS, SUCCESSORS AND ASSIGNS.
14.
NO ADMISSION.
IT IS UNDERSTOOD AND AGREED
BY THE PARTIES THAT THIS AGREEMENT REPRESENTS A COMPROMISE SETTLEMENT OF VARIOUS
MATTERS, AND SHALL NOT BE CONSTRUED TO BE AN ADMISSION OF ANY LIABILITY OR
OBLIGATION BY EITHER PARTY TO THE OTHER PARTY OR TO ANY OTHER PERSON.
15.
SECTION HEADINGS.
THE SECTION AND PARAGRAPH
HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE PURPOSES ONLY AND SHALL
NOT AFFECT IN ANY WAY THE MEANING OR INTERPRETATION OF THIS AGREEMENT.
16.
SEVERABILITY.
IF ANY PROVISION OF THIS
AGREEMENT IS DETERMINED TO BE INVALID OR UNENFORCEABLE, IN WHOLE OR IN PART,
THIS DETERMINATION WILL NOT AFFECT ANY OTHER PROVISION OF THIS AGREEMENT.
17.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN TWO COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, AND ALL
OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
18.
DRAFTING.
NONE OF THE PARTIES
HERETO SHALL BE CONSIDERED TO BE THE DRAFTER OF THIS AGREEMENT OR ANY PROVISION
HEREOF FOR THE PURPOSE OF ANY STATUTE, CASE LAW OR RULE OF INTERPRETATION OR
CONSTRUCTION THAT MIGHT CAUSE ANY PROVISION TO BE CONSTRUED AGAINST THE DRAFTER
HEREOF.
19.
NOTICES.
ALL NOTICES, REQUESTS, CONSENTS
AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER SHALL BE IN WRITING AND
SHALL BE HAND DELIVERED OR MAILED BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO THE
4
COMPANY AT 2070 LAS PALMAS DRIVE, CARLSBAD, CALIFORNIA, 92009 ATTENTION: CHIEF
EXECUTIVE OFFICER, AND TO EMPLOYEE AT THE ADDRESS SET FORTH BELOW HIS SIGNATURE.
20.
CONFIDENTIALITY.
THE PARTIES HERETO AGREE
NOT TO DIVULGE OR PUBLICIZE THE EXISTENCE OF THIS AGREEMENT OR THE TERMS HEREOF
EXCEPT TO THEIR ACCOUNTANTS, LAWYERS, AND IF NECESSARY, THEIR LICENSED HEALTH
CARE PROFESSIONALS AND AS MAY BE NECESSARY TO ENFORCE THIS AGREEMENT OR AS MAY
BE REQUIRED BY LAW.
21.
COUNSEL.
EMPLOYEE ACKNOWLEDGES THAT HE
FULLY UNDERSTANDS HIS RIGHT TO DISCUSS THIS AGREEMENT WITH INDEPENDENT COUNSEL
OF HIS CHOICE, THAT HE IS ENCOURAGED TO DO SO, THAT HE