TAX UNDER
SECTION 409A OF THE CODE.
8.
CONFIDENTIAL INFORMATION, NONCOMPETITION AND COOPERATION. THE
NONCOMPETITION AGREEMENT AND THE EMPLOYEE NON-DISCLOSURE AND DEVELOPMENTS
AGREEMENT DATED MAY 5, 2006, BETWEEN THE EXECUTIVE AND THE EMPLOYER (THE
"NON-DISCLOSURE AGREEMENT") SHALL CONTINUE IN FULL FORCE AND EFFECT AND ARE
HEREBY INCORPORATED HEREIN BY REFERENCE. THE EXECUTIVE UNDERSTANDS AND AGREES
THAT HIS OBLIGATIONS UNDER THE NONCOMPETITION AGREEMENT AND NON-DISCLOSURE
AGREEMENT WILL CONTINUE IN ACCORDANCE WITH THE EXPRESS TERMS OF THOSE AGREEMENTS
REGARDLESS OF ANY CHANGES IN THE EXECUTIVE'S TITLE, POSITION, DUTIES, SALARY,
COMPENSATION OR BENEFITS OR OTHER TERMS AND CONDITIONS OF EMPLOYMENT. THE
EXECUTIVE AGREES AND CONFIRMS THAT ANY VIOLATION WHATSOEVER OF THE PROVISIONS OF
THE NONCOMPETITION AGREEMENT OR THE NON-DISCLOSURE AGREEMENT WILL CONSTITUTE A
MATERIAL BREACH OF THIS AGREEMENT.
5
9.
ARBITRATION OF DISPUTES.
ANY CONTROVERSY OR CLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE BREACH HEREOF OR OTHERWISE ARISING OUT OF
THE EXECUTIVE'S EMPLOYMENT OR THE TERMINATION OF THAT EMPLOYMENT (INCLUDING,
WITHOUT LIMITATION, ANY CLAIMS OF UNLAWFUL EMPLOYMENT DISCRIMINATION WHETHER
BASED ON AGE OR OTHERWISE) SHALL, TO THE FULLEST EXTENT PERMITTED BY LAW, BE
SETTLED BY ARBITRATION IN ANY FORUM AND FORM AGREED UPON BY THE PARTIES OR, IN
THE ABSENCE OF SUCH AN AGREEMENT, UNDER THE AUSPICES OF THE AMERICAN ARBITRATION
ASSOCIATION ("AAA") IN BOSTON, MASSACHUSETTS IN ACCORDANCE WITH THE EMPLOYMENT
DISPUTE RESOLUTION RULES OF THE AAA, INCLUDING, BUT NOT LIMITED TO, THE
RULES AND PROCEDURES APPLICABLE TO THE SELECTION OF ARBITRATORS. IN THE EVENT
THAT ANY PERSON OR ENTITY OTHER THAN THE EXECUTIVE OR THE EMPLOYER MAY BE A
PARTY WITH REGARD TO ANY SUCH CONTROVERSY OR CLAIM, SUCH CONTROVERSY OR CLAIM
SHALL BE SUBMITTED TO ARBITRATION SUBJECT TO SUCH OTHER PERSON OR ENTITY'S
AGREEMENT. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN
ANY COURT HAVING JURISDICTION THEREOF. THIS SECTION 9 SHALL BE SPECIFICALLY
ENFORCEABLE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 9 SHALL NOT PRECLUDE
EITHER PARTY FROM PURSUING A COURT ACTION FOR THE SOLE PURPOSE OF OBTAINING A
TEMPORARY RESTRAINING ORDER OR A PRELIMINARY INJUNCTION IN CIRCUMSTANCES IN
WHICH SUCH RELIEF IS APPROPRIATE; PROVIDED THAT ANY OTHER RELIEF SHALL BE
PURSUED THROUGH AN ARBITRATION PROCEEDING PURSUANT TO THIS SECTION 9.
10.
CONSENT TO JURISDICTION. TO THE EXTENT THAT ANY COURT ACTION IS
PERMITTED CONSISTENT WITH OR TO ENFORCE SECTION 9 OF THIS AGREEMENT, THE PARTIES
HEREBY CONSENT TO THE JURISDICTION OF THE SUPERIOR COURT OF THE COMMONWEALTH OF
MASSACHUSETTS AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS. ACCORDINGLY, WITH RESPECT TO ANY SUCH COURT ACTION, THE EXECUTIVE
(A) SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS; (B) CONSENTS TO SERVICE
OF PROCESS; AND (C) WAIVES ANY OTHER REQUIREMENT (WHETHER IMPOSED BY STATUTE,
RULE OF COURT, OR OTHERWISE) OR ANY OBJECTIVE HE MAY HAVE WITH RESPECT TO
PERSONAL JURISDICTION OR SERVICE OF PROCESS.
11.
INTEGRATION. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL
PRIOR AGREEMENTS BETWEEN THE PARTIES WITH RESPECT