OF A DISPUTE, THE PARTIES (OR THEIR LEGAL
REPRESENTATIVES) WILL PROMPTLY CONFER TO SELECT A SINGLE ARBITRATOR MUTUALLY
ACCEPTABLE TO BOTH PARTIES.
IF THE PARTIES CANNOT AGREE ON AN ARBITRATOR, THEN
THE MOVING PARTY MAY FILE A DEMAND FOR ARBITRATION WITH THE AMERICAN ARBITRATION
ASSOCIATION ("AAA") IN SAN DIEGO, CALIFORNIA, WHO WILL BE SELECTED AND APPOINTED
CONSISTENT WITH THE AAA-EMPLOYMENT DISPUTE RESOLUTION RULES, EXCEPT THAT SUCH
ARBITRATOR MUST HAVE THE QUALIFICATIONS SET FORTH IN THIS PARAGRAPH.
ANY
ARBITRATION WILL BE CONDUCTED IN A MANNER CONSISTENT WITH AAA NATIONAL RULES FOR
THE RESOLUTION OF EMPLOYMENT DISPUTES, SUPPLEMENTED BY THE CALIFORNIA RULES OF
CIVIL PROCEDURE.
THE PARTIES FURTHER AGREE THAT THE PREVAILING PARTY IN ANY
ARBITRATION WILL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT
JURISDICTION TO ENFORCE THE ARBITRATION AWARD.
THE PARTIES HEREBY AGREE TO
WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY
A JUDGE OR JURY.
THIS PARAGRAPH WILL NOT PREVENT EITHER PARTY FROM SEEKING
INJUNCTIVE RELIEF (OR ANY OTHER PROVISIONAL REMEDY) FROM ANY COURT HAVING
JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THEIR DISPUTE RELATING
TO EXECUTIVE'S OBLIGATIONS UNDER THIS AGREEMENT AND THE COMPANY'S FORM OF
CONFIDENTIAL INFORMATION AGREEMENT.
10.
CODE SECTION 409A.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, IF THE COMPANY REASONABLY DETERMINES THAT
SECTION 409A OF THE CODE WILL RESULT IN THE IMPOSITION OF INTEREST AND
ADDITIONAL TAX, EXECUTIVE SHALL NOT BE PAID ANY COMPENSATION OR BENEFITS
HEREUNDER UPON A SEPARATION FROM SERVICE (WITHIN THE MEANING OF SECTION
409A(A)(2)(A)(I) OF THE CODE AND THE REGULATIONS PROMULGATED THEREUNDER) UNTIL
THE DATE WHICH IS 6 MONTHS AFTER THE DATE OF SUCH SEPARATION FROM SERVICE (OR,
IF EARLIER, THE DATE OF DEATH OF THE EXECUTIVE).
SUCH SEVERANCE OR OTHER
BENEFITS OTHERWISE DUE TO EXECUTIVE ON OR WITHIN THE SIX (6) MONTH PERIOD
FOLLOWING EXECUTIVE'S TERMINATION OF EMPLOYMENT WILL ACCRUE DURING SUCH SIX (6)
MONTH PERIOD AND WILL BECOME PAYABLE IN A LUMP SUM PAYMENT ON THE DATE SIX (6)
MONTHS AND ONE (1) DAY FOLLOWING THE DATE OF EXECUTIVE'S TERMINATION.
ALL
SUBSEQUENT PAYMENTS, IF ANY, WILL BE PAYABLE AS PROVIDED IN THIS AGREEMENT.
THE
COMPANY AND EXECUTIVE AGREE THAT THIS AGREEMENT AND THE RIGHTS GRANTED TO THE
EXECUTIVE HEREUNDER ARE INTENDED TO MEET THE REQUIREMENTS OF PARAGRAPHS (2), (3)
AND (4) OF SECTION 409A(A)(1)(A) OF THE CODE.
ACCORDINGLY, THE PARTIES AGREE
THAT DURING THE PERIOD ENDING ON DECEMBER 31, 2007 (OR SUCH LATER DATE AS SET
FORTH BY THE INTERNAL REVENUE SERVICE FOR GOOD FAITH COMPLIANCE WITH GUIDANCE
RELATING TO SECTION 409A OF THE CODE), THE PARTIES AGREE THAT THEY SHALL
NEGOTIATE IN GOOD FAITH TO REVISE ANY PROVISIONS OF THIS AGREEMENT THAT MIGHT
OTHERWISE FAIL TO MEET THE REQUIREMENTS OF PARAGRAPHS (2), (3) AND (4) OF
SECTION 409A OF CODE; PROVIDED, HOWEVER, THAT NOTHING CONTAINED IN THIS SECTION
10 SHALL BE DEEMED TO REQUIRE THE COMPANY TO INCUR ANY MATERIAL COMPENSATION
EXPENSE IN EXCESS OF THAT WHICH WOULD BE INCURRED BY IT IN THE ABSENCE