WITH REASONABLE
SPECIFICITY HOW YOU HAVE FAILED TO PERFORM;
(II)
ADVERSE CONDUCT.
YOU ARE CONVICTED OF, PLEA
"GUILTY" OR "NO CONTEST" TO A FELONY OFFENSE OR ANY UNLAWFUL ACT WHICH WOULD BE
MATERIALLY DETRIMENTAL TO THE REPUTATION OF THE COMPANY, OR COMMIT A MATERIAL
ACT OF DISHONESTY, FRAUD, EMBEZZLEMENT, MISAPPROPRIATION OR FINANCIAL DISHONESTY
AGAINST THE COMPANY; OR
(III)
BREACH AGREEMENT OR POLICY.
YOU MATERIALLY BREACH
THIS AGREEMENT, THE CONFIDENTIALITY AGREEMENT, OR ANY OTHER MATERIAL WRITTEN
AGREEMENT BETWEEN YOU AND THE COMPANY OR YOU MATERIALLY BREACH OR VIOLATE ANY
LAWFUL MATERIAL EMPLOYMENT POLICY OF THE COMPANY, INCLUDING THOSE PROHIBITING
HARASSMENT OF ANOTHER EMPLOYEE.
C.
"CHANGE OF CONTROL."
AS USED IN THIS
AGREEMENT, "CHANGE OF CONTROL" SHALL MEAN (I) THE SALE OF ALL OR SUBSTANTIALLY
ALL OF THE ASSETS OF THE COMPANY TO A NON-AFFILIATE, (II) ANY MERGER OR
CONSOLIDATION OF THE COMPANY WITH OR INTO ANOTHER CORPORATION OR OTHER
TRANSACTION IN EACH CASE IN WHICH THE HOLDERS OF MORE THAN 50% OF THE SHARES OF
CAPITAL STOCK OF THE COMPANY OUTSTANDING IMMEDIATELY PRIOR TO SUCH TRANSACTION
DO NOT CONTINUE TO HOLD (EITHER BY THE VOTING SECURITIES REMAINING OUTSTANDING
OR BY THEIR BEING CONVERTED INTO VOTING SECURITIES OF THE SURVIVING ENTITY) 50%
OR MORE OF THE TOTAL VOTING POWER REPRESENTED BY THE VOTING SECURITIES OF THE
SURVIVING ENTITY OUTSTANDING IMMEDIATELY AFTER SUCH TRANSACTION OR (III) AS A
RESULT OF, OR IN CONNECTION WITH, A CONTESTED ELECTION OF DIRECTORS OF BOARD OF
DIRECTORS OF THE COMPANY, THE PERSONS WHO WERE DIRECTORS OF THE COMPANY
IMMEDIATELY PRIOR TO THE ELECTION CEASE TO CONSTITUTE A MAJORITY OF THE BOARD OF
DIRECTORS.
FOR FURTHER CLARIFICATION, A REORGANIZATION OR SIMILAR TRANSACTION
AMONG THE COMPANY AND/OR ITS AFFILIATES SHALL NOT BE DEEMED TO CONSTITUTE A
CHANGE OF CONTROL.
9.
APPLICABLE LAW; SEVERABILITY.
THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT
REFERENCE TO RULES RELATING TO CONFLICTS OF LAW.
IN THE EVENT THAT ANY
PROVISION OF THIS AGREEMENT BECOMES OR IS DECLARED BY A COURT OF COMPETENT
JURISDICTION OR ARBITRATOR TO BE ILLEGAL, UNENFORCEABLE, OR VOID, THIS AGREEMENT
SHALL CONTINUE IN FULL FORCE AND EFFECT WITHOUT SAID PROVISION.
10.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON THE COMPANY'S SUCCESSORS AND ASSIGNS AND UPON YOUR HEIRS,
EXECUTORS, ADMINISTRATORS, ESTATE, SUCCESSORS AND ASSIGNS.
5
FOR ALL PURPOSES UNDER THIS AGREEMENT, THE TERM "COMPANY" SHALL INCLUDE ANY
AFFILIATES OF THE COMPANY AND ANY SUCCESSOR TO THE COMPANY'S BUSINESS, STOCK
AND/OR ASSETS, WHICH BECOMES BOUND BY THIS AGREEMENT.
YOU MAY NOT ASSIGN THIS
AGREEMENT.
11.
NO INCONSISTENT OBLIGATIONS.
BY SIGNING
THIS AGREEMENT AND ACCEPTING THIS OFFER OF EMPLOYMENT, YOU REPRESENT AND WARRANT
TO THE COMPANY THAT YOU ARE UNDER NO OBLIGATIONS OR COMMITMENTS, WHETHER
CONTRACTUAL OR OTHERWISE, THAT ARE INCONSISTENT WITH YOUR OBLIGATIONS SET FORTH
IN THIS AGREEMENT.
YOU ALSO REPRESENT AND WARRANT THAT YOU WILL NOT USE OR
DISCLOSE, IN CONNECTION WITH YOUR EMPLOYMENT BY THE COMPANY, ANY TRADE SECRETS
OR OTHER PROPRIETARY INFORMATION OR INTELLECTUAL PROPERTY IN WHICH YOU OR ANY
OTHER