8. Definition of Terms. The following terms referred to in this agreement will
have the following meanings:
(i) Cause. Cause means (i) commission of a
felony, an act involving moral turpitude, or an act constituting common law fraud, and which has a material adverse effect on the business or affairs of the Company or its affiliates or stockholders, (ii) intentional or willful misconduct or
refusal to follow the lawful instructions of the Board or (iii) intentional breach of Company confidential information obligations which has an adverse effect on the Company or its affiliates or stockholders. For these purposes, no act or
failure to act shall be considered intentional or willful unless it is done, or omitted to be done, in bad faith without a reasonable belief that the action or omission is in the best interests of the Company.
(a) Disability. Disability means that you have been unable to perform the principal functions of
your duties due to a physical or mental impairment, but only if such inability has lasted or is reasonably expected to last for at least six (6) months. Whether you have a Disability will be determined by the Board based on evidence provided by
one or more physicians selected by the Board.
(b) Good Reason. Good Reason means the
occurrence of any of the following, without your written consent: (i) a reduction in your Base Salary; (ii) a reduction your Target Bonus; (iii) a material, adverse change in, or any action by the Board or any member thereof which are
inconsistent with, your title, position, authority, duties, responsibilities or reporting relationships set forth by Section 1; (iv) a relocation of your principal office location by more than thirty-five (35) miles from its then-current
location; or (v) a material breach by the Company of a material provision of this Agreement. You cannot terminate your employment for Good Reason unless you have provided written notice to the Company of the existence of the circumstances
providing grounds for termination for Good Reason within ninety (90) days of the initial existence of such grounds and the Company has had at least thirty (30) days from the date on which such notice is provided to cure such circumstances.
9. Restrictive Covenants.
(a) Noncompete. For a period beginning on the Employment Date and ending on the date you cease to provide services to
the Company or any parent or subsidiary of the Company (excluding services provided pursuant to Section 10 following your termination of employment) or, if later, the date through which severance is payable pursuant to Section 6, you agree
to not, directly or indirectly, engage in (whether as an employee, consultant, agent, proprietor, principal, partner, stockholder, corporate officer, director or otherwise), nor have any ownership interest in or participate in the financing,
operation, management or control of, any person, firm, corporation or business that competes with Company (or any parent or subsidiary of the Company); provided, however, that you shall not be prohibited from owning, solely as an investment, up to
1% of the stock of a publicly traded corporation or up to 5% of the equity of a non-publicly traded company. You may elect not to comply with the provisions of this Section 9(a) following your termination of employment. However, all continuing
payments and benefits to which you would have been entitled pursuant to Section 6 will immediately cease.
(b)
Nonsolicit.
(i) For a period beginning on the Employment Date and ending on
the date twelve (12) months after you cease to provide services to the Company or any parent or subsidiary of the Company (excluding services provided pursuant to Section 10 following your termination of employment), you, directly or
indirectly, whether as employee, owner, sole proprietor, partner, director, member, consultant, agent, founder, co-venturer or otherwise, will not solicit, induce or influence any person to leave employment
with the Company (or any parent or subsidiary of the Company).
(ii) For a period
beginning on the Employment Date and ending the date you cease to provide services to the Company or any parent or subsidiary of the Company (excluding services provided pursuant to Section 10 following your termination of employment) or, if
later, the date through which severance is payable pursuant to Section 6, you, directly or indirectly, whether as employee, owner, sole proprietor, partner, director, member, consultant, agent, founder,
co-venturer or otherwise, will not directly or