SURVIVING CORPORATION,
AND SUCH SURVIVING CORPORATION SHALL BE TREATED AS THE COMPANY HEREUNDER.
(B)
THE COMPANY AGREES THAT IN CONNECTION WITH
ANY BUSINESS COMBINATION, IT WILL CAUSE ANY SUCCESSOR ENTITY TO THE COMPANY
UNCONDITIONALLY TO ASSUME BY WRITTEN INSTRUMENT DELIVERED TO EXECUTIVE (OR HIS
BENEFICIARY OR ESTATE), ALL OF THE OBLIGATIONS OF THE COMPANY HEREUNDER.
(C)
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF AND BE ENFORCEABLE BY EXECUTIVE'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
IF EXECUTIVE SHALL DIE WHILE ANY AMOUNTS WOULD BE PAYABLE TO
EXECUTIVE HEREUNDER HAD EXECUTIVE CONTINUED TO LIVE, ALL SUCH AMOUNTS, UNLESS
OTHERWISE PROVIDED HEREIN, SHALL BE PAID IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT TO SUCH PERSON OR PERSONS APPOINTED IN WRITING BY EXECUTIVE TO RECEIVE
SUCH AMOUNTS OR, IF NO PERSON IS SO APPOINTED, TO EXECUTIVE'S ESTATE.
11.
NOTICE.
(A)
FOR PURPOSES OF THIS
AGREEMENT, ALL NOTICES AND OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER
SHALL BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN DELIVERED
OR FIVE (5) DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, CERTIFIED AND RETURN
RECEIPT REQUESTED, POSTAGE PREPAID, ADDRESSED AS FOLLOWS:
If to Executive:
[Name and Address]
If to the Company:
DJO Incorporated
1430 Decision Street
Vista, California 92081
Attention: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
10
(B)
A WRITTEN NOTICE OF EXECUTIVE'S DATE OF
TERMINATION BY THE COMPANY OR EXECUTIVE, AS THE CASE MAY BE, TO THE OTHER, SHALL
(I) INDICATE THE SPECIFIC TERMINATION PROVISION IN THIS AGREEMENT RELIED UPON,
(II) TO THE EXTENT APPLICABLE, SET FORTH IN REASONABLE DETAIL THE FACTS AND
CIRCUMSTANCES CLAIMED TO PROVIDE A BASIS FOR TERMINATION OF EXECUTIVE'S
EMPLOYMENT UNDER THE PROVISION SO INDICATED AND (III) SPECIFY THE TERMINATION
DATE, WHICH DATE SHALL BE NOT LESS THAN FIFTEEN (15) DAYS (THIRTY (30) DAYS, IF
TERMINATION IS BY THE COMPANY FOR DISABILITY OR BY EXECUTIVE FOR GOOD REASON)
NOR MORE THAN SIXTY (60) DAYS AFTER THE GIVING OF SUCH NOTICE, UNLESS SUCH
TERMINATION IS FOR CAUSE, IN WHICH CASE THE EFFECTIVE DATE OF TERMINATION MAY BE
THE SAME AS THE DATE NOTICE OF SUCH TERMINATION IS PROVIDED TO EXECUTIVE.
THE
FAILURE BY EXECUTIVE OR THE COMPANY TO SET FORTH IN SUCH NOTICE ANY FACT OR
CIRCUMSTANCE WHICH CONTRIBUTES TO A SHOWING OF GOOD REASON OR CAUSE SHALL NOT
WAIVE ANY RIGHT OF EXECUTIVE OR THE COMPANY HEREUNDER OR PRECLUDE EXECUTIVE OR
THE COMPANY FROM ASSERTING SUCH FACT OR CIRCUMSTANCE IN ENFORCING EXECUTIVE'S OR
THE COMPANY'S RIGHTS HEREUNDER.
12.
FULL SETTLEMENT.
THE COMPANY'S OBLIGATION
TO MAKE ANY PAYMENTS PROVIDED FOR IN THIS AGREEMENT AND OTHERWISE TO PERFORM ITS
OBLIGATIONS HEREUNDER SHALL BE IN LIEU AND IN FULL SETTLEMENT OF ALL OTHER
SEVERANCE PAYMENTS TO EXECUTIVE UNDER ANY OTHER SEVERANCE OR EMPLOYMENT
AGREEMENT BETWEEN EXECUTIVE AND THE COMPANY, AND ANY SEVERANCE PLAN OF THE
COMPANY.