CONTINUE IN FULL FORCE AND EFFECT WITHOUT SAID
PROVISION SO LONG AS THE REMAINING PROVISIONS REMAIN INTELLIGIBLE AND CONTINUE
TO REFLECT THE ORIGINAL INTENT OF THE PARTIES.
16.
ENTIRE AGREEMENT.
THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT AND
UNDERSTANDING BETWEEN THE COMPANY AND EMPLOYEE CONCERNING THE SUBJECT MATTER OF
THIS AGREEMENT AND EMPLOYEE'S RELATIONSHIP WITH THE COMPANY, AND SUPERSEDES AND
REPLACES ANY AND ALL PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES
CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT AND EMPLOYEE'S RELATIONSHIP WITH
THE COMPANY, WITH THE EXCEPTION OF THE EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION ASSIGNMENT AGREEMENT, THE AGREEMENTS GOVERNING THE OPTIONS OR ANY
SHARES OF RESTRICTED STOCK (INCLUDING THE EQUITY COMPENSATION PLAN UNDER WHICH
SUCH OPTIONS OR SUCH STOCK WERE GRANTED) AND ANY RIGHT TO INDEMNIFICATION
EMPLOYEE HAS PURSUANT TO ANY INDEMNIFICATION AGREEMENT BETWEEN EMPLOYEE AND
COMPANY.
17.
PUBLIC FILING.
EMPLOYEE AND THE COMPANY UNDERSTAND AND AGREE THAT THIS
AGREEMENT MAY NEED TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AND
THAT ITS CONFIDENTIALITY CANNOT BE PROTECTED.
18.
CODE SECTION 409A.
IF ANY PAYMENTS OR BENEFITS DUE UNDER THIS AGREEMENT
WOULD SUBJECT EMPLOYEE TO ANY PENALTY TAX IMPOSED UNDER SECTION 409A OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, IF SUCH PAYMENTS AND BENEFITS WERE
MADE AT THE TIME AS CONTEMPLATED HEREIN, THEN THE PARTIES AGREE TO COOPERATE
WITH EACH OTHER AND TO TAKE REASONABLY NECESSARY STEPS TO AVOID THE IMPOSITION
OF ANY SUCH PENALTY TAX.
19.
NO WAIVER.
THE FAILURE OF ANY PARTY TO INSIST UPON THE PERFORMANCE OF ANY
OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, OR THE FAILURE TO PROSECUTE ANY
BREACH OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, SHALL NOT BE
CONSTRUED THEREAFTER AS A WAIVER OF ANY SUCH TERMS OR CONDITIONS.
THIS ENTIRE
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AS IF NO SUCH FORBEARANCE OR
FAILURE OF PERFORMANCE HAD OCCURRED.
20.
NO ORAL MODIFICATION.
ANY MODIFICATION OR AMENDMENT OF THIS AGREEMENT, OR
ADDITIONAL OBLIGATION ASSUMED BY EITHER PARTY IN CONNECTION WITH THIS AGREEMENT,
SHALL BE EFFECTIVE ONLY IF PLACED IN WRITING AND SIGNED BY BOTH PARTIES OR BY
AUTHORIZED REPRESENTATIVES OF EACH PARTY.
21.
GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO HAVE BEEN EXECUTED AND
DELIVERED WITHIN THE STATE OF CALIFORNIA, AND IT SHALL BE CONSTRUED,
INTERPRETED, GOVERNED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
TO THE EXTENT THAT
EITHER PARTY SEEKS INJUNCTIVE RELIEF IN ANY COURT HAVING JURISDICTION FOR ANY
CLAIM RELATING TO THE ALLEGED MISUSE OR MISAPPROPRIATION OF TRADE SECRETS OR
CONFIDENTIAL OR PROPRIETARY INFORMATION, EACH PARTY HEREBY CONSENTS TO PERSONAL
AND EXCLUSIVE JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS OF THE
STATE OF CALIFORNIA.
22.
ATTORNEYS' FEES.
IN THE EVENT THAT EITHER PARTY BRINGS AN ACTION TO
ENFORCE OR EFFECT ITS RIGHTS UNDER THIS AGREEMENT, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER ITS COSTS AND EXPENSES, INCLUDING THE COSTS OF MEDIATION,
ARBITRATION, LITIGATION, COURT FEES, PLUS REASONABLE ATTORNEYS' FEES,