MAIL OR OTHERWISE) ANY SUCH MATERIAL OR PROPERTY OR ANY
COPIES THEREOF AFTER THE COMPLETION OF SERVICES OR HAS BEEN DETERMINED TO TAKE
PLACE.
YOU FURTHER UNDERSTAND THAT THE COMPANY'S INFORMATION SYSTEMS, INCLUDING
ELECTRONIC MAIL, VOICEMAIL, AND THE COMPANY'S COMPUTER SYSTEMS, ARE THE
COMPANY'S PROPERTY.
YOU UNDERSTAND AND ACKNOWLEDGE THAT THE COMPANY MAY OBTAIN
ACCESS TO ALL INFORMATION MAINTAINED ON THE COMPANY'S PROPERTY AND THAT YOU HAVE
NO PERSONAL PRIVACY INTEREST IN ANY SUCH INFORMATION.
THE COMPANY MAY WAIVE ALL
OR PART OF ITS RIGHTS ARISING FROM THIS SECTION 6 WITHOUT AFFECTING THE
ENFORCEABILITY OF THE REMAINDER OF THE PROVISION OR ANY OTHER PARTS OF THE
AGREEMENT.
7.
DIRECTOR COMPENSATION: YOU HEREBY WAIVE ANY COMPENSATION UNDER
THE COMPANY'S NON-EMPLOYEE DIRECTOR COMPENSATION POLICY WHICH MAY BE PAYABLE TO
YOU FOR
3
SERVICES AS A DIRECTOR OF THE COMPANY AND/OR CHAIRMAN OF THE BOARD DURING ANY
TIME PRIOR TO THE EXPIRATION OF THE SEVERANCE PERIOD.
8.
TAXES:
THE COMPANY SHALL UNDERTAKE TO MAKE DEDUCTIONS,
WITHHOLDINGS AND TAX REPORTS WITH RESPECT TO PAYMENTS AND BENEFITS UNDER THIS
AGREEMENT TO THE EXTENT THAT IT REASONABLY AND IN GOOD FAITH DETERMINES THAT IT
IS REQUIRED TO MAKE SUCH DEDUCTIONS, WITHHOLDINGS AND TAX REPORTS.
PAYMENTS
UNDER THIS AGREEMENT SHALL BE IN AMOUNTS NET OF ANY SUCH DEDUCTIONS OR
WITHHOLDINGS.
YOU ACKNOWLEDGE THAT NEITHER THE COMPANY NOR ITS COUNSEL HAS
ADVISED YOU ABOUT THE TAXABILITY OF ANY MONIES PAID UNDER THIS AGREEMENT, AND
THAT ANY TAX ADVICE YOU CHOOSE TO SEEK CONCERNING SUCH MONIES WILL BE YOUR
RESPONSIBILITY, AND OBTAINED FROM A SOURCE INDEPENDENT OF THE COMPANY AND AT
YOUR OWN EXPENSE.
THE PARTIES INTEND THAT THIS LETTER WILL BE ADMINISTERED IN ACCORDANCE WITH
SECTION 409A OF THE CODE.
THE PARTIES AGREE THAT THIS LETTER MAY BE AMENDED, AS
REASONABLY REQUESTED BY EITHER PARTY, AND AS MAY BE NECESSARY TO FULLY COMPLY
WITH SECTION 409A OF THE CODE AND ALL RELATED RULES AND REGULATIONS IN ORDER TO
PRESERVE THE PAYMENTS AND BENEFITS PROVIDED HEREUNDER WITHOUT ADDITIONAL COST TO
EITHER PARTY.
9.
NONCOMPETITION, AND NONDISCLOSURE AND DEVELOPMENTS AGREEMENT:
YOU AGREE THAT (A) THE NON-COMPETITION AND NON-SOLICITATION AGREEMENT BETWEEN
YOU AND THE COMPANY, DATED OCTOBER 21, 2003 (THE "NON-COMPETITION AGREEMENT")
PROVIDES RESTRICTIONS SO LONG AS YOU HAVE A BUSINESS RELATIONSHIP (AS DEFINED
THEREIN), WHICH INCLUDES SERVICE AS A DIRECTOR, AND (B) THE EMPLOYEE
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT BETWEEN YOU AND THE COMPANY, DATED
OCTOBER 28, 2003 (THE "NON-DISCLOSURE AGREEMENT") PROVIDES RESTRICTIONS
REGARDING YOUR CONDUCT FOLLOWING THE TERMINATION OF YOUR EMPLOYMENT.
YOU AGREE
THAT THE AGREEMENTS REFERENCED IN THE PRECEDING SENTENCE ARE VALID AND
ENFORCEABLE, AND THAT YOU SHALL COMPLY IN ALL RESPECTS WITH THE TERMS OF SUCH
AGREEMENTS.
10.
PUBLIC SPEAKING:
YOU ACKNOWLEDGE THAT, WITHOUT PRIOR WRITTEN
CONSENT OF THE CEO, WHICH CONSENT MAY BE WITHHELD FOR ANY REASON OR NO REASON AT
ALL, YOU WILL NOT (A) MAKE ANY PUBLIC COMMUNICATIONS, INCLUDING, BUT NOT LIMITED
TO, INTERVIEWS, SPEAKING ENGAGEMENTS OR WRITTEN STATEMENTS, OR AGREE TO MAKE ANY
SUCH COMMUNICATION, UNDER THE TITLE OF CHAIRMAN OF THE COMPANY