OF THIS LETTER AGREEMENT AND THE PERFORMANCE OF HIS
DUTIES HEREUNDER SHALL NOT RESULT IN AN ACTUAL (AS OPPOSED TO MERELY ASSERTED)
BREACH OF, OR CONSTITUTE AN ACTUAL (AS OPPOSED TO MERELY ASSERTED) DEFAULT
UNDER, ANY AGREEMENT OR OBLIGATION TO WHICH HE MAY BE BOUND OR SUBJECT,
INCLUDING, WITHOUT LIMITATION, ANY OBLIGATIONS OF CONFIDENTIALITY,
NONCOMPETITION, NONSOLICITATION OR USE OF INFORMATION; (C) THIS LETTER AGREEMENT
6
REPRESENTS A VALID, LEGALLY BINDING OBLIGATION ON HIM AND IS ENFORCEABLE AGAINST
HIM IN ACCORDANCE WITH ITS TERMS EXCEPT AS THE ENFORCEABILITY OF THIS LETTER
AGREEMENT MAY BE SUBJECT TO OR LIMITED BY GENERAL PRINCIPLES OF EQUITY AND BY
BANKRUPTCY OR OTHER SIMILAR LAWS RELATING TO OR AFFECTING THE RIGHTS OF
CREDITORS; (D) TO EXECUTIVE'S KNOWLEDGE, THE SERVICES CONTEMPLATED BY THIS
LETTER AGREEMENT DO NOT (I) INFRINGE ANY THIRD PARTY'S COPYRIGHT, PATENT,
TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHT, OR (II) VIOLATE ANY LAW,
STATUTE, ORDINANCE OR REGULATION; AND (E) EXCEPT WITH RESPECT TO EXECUTIVE'S
CONCURRENT EMPLOYMENT BY CPS, EXECUTIVE HAS RESIGNED FROM ALL POSITIONS AS AN
EMPLOYEE, OFFICER, DIRECTOR OR EXECUTIVE OF PRIOR EMPLOYERS.
EXECUTIVE
COVENANTS TO CLARIENT THAT DURING HIS EMPLOYMENT WITH CLARIENT (A) HE SHALL NOT
(I) INTENTIONALLY USE, IN CONNECTION WITH HIS EMPLOYMENT WITH CLARIENT, ANY
CONFIDENTIAL OR PROPRIETARY INFORMATION OR MATERIALS BELONGING TO ANY THIRD
PERSON OR ENTITY, OR (II) KNOWINGLY VIOLATE ANY LAW, STATUTE, ORDINANCE OR
REGULATION AND (B) HE SHALL NOT BREACH (I) ANY AGREEMENT WITH ANY THIRD PARTY TO
KEEP IN CONFIDENCE ANY CONFIDENTIAL OR PROPRIETARY INFORMATION, KNOWLEDGE OR
DATA ACQUIRED PRIOR TO HIS EXECUTION OF THIS LETTER AGREEMENT OR (II) ANY
OBLIGATIONS OF CONFIDENTIALITY, NONCOMPETITION, NONSOLICITATION OR USE OF
INFORMATION.
11.
SECTION 409A.
(A)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS LETTER AGREEMENT,
IF AT THE TIME OF EXECUTIVE'S SEPARATION FROM SERVICE WITH CLARIENT, EXECUTIVE
IS A "SPECIFIED EMPLOYEE" AS DEFINED IN SECTION 409A OF THE CODE, AS DETERMINED
BY CLARIENT IN ACCORDANCE WITH SECTION 409A OF THE CODE, AND THE DEFERRAL OF THE
COMMENCEMENT OF ANY PAYMENTS OR BENEFITS OTHERWISE PAYABLE HEREUNDER AS A RESULT
OF SUCH SEPARATION FROM SERVICE IS NECESSARY IN ORDER TO PREVENT ANY ACCELERATED
OR ADDITIONAL TAX UNDER SECTION 409A OF THE CODE, THEN CLARIENT WILL DEFER THE
COMMENCEMENT OF THE PAYMENT OF ANY SUCH PAYMENTS OR BENEFITS HEREUNDER (WITHOUT
ANY REDUCTION IN THE PAYMENTS OR BENEFITS ULTIMATELY PAID OR PROVIDED TO
EXECUTIVE) UNTIL THE DATE THAT IS AT LEAST SIX (6) MONTHS FOLLOWING EXECUTIVE'S
SEPARATION FROM SERVICE WITH CLARIENT (OR THE EARLIEST DATE PERMITTED UNDER
SECTION 409A OF THE CODE), WHEREUPON CLARIENT WILL PAY EXECUTIVE A LUMP-SUM
AMOUNT EQUAL TO THE CUMULATIVE AMOUNTS THAT WOULD HAVE OTHERWISE BEEN PREVIOUSLY
PAID TO EXECUTIVE UNDER THIS LETTER AGREEMENT DURING THE PERIOD IN WHICH SUCH
PAYMENTS OR BENEFITS WERE DEFERRED.
THEREAFTER, PAYMENTS WILL RESUME IN
ACCORDANCE WITH THIS LETTER AGREEMENT.
(B)
WITH RESPECT TO THE PROVISIONS OF THIS LETTER AGREEMENT WHICH
PROVIDE FOR "NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF
SECTION 409A OF THE CODE, THIS LETTER AGREEMENT SHALL COMPLY WITH THE