SUPERGEN,INC. EXECUTIVEEMPLOYMENT AND CONFIDENTIAL INFORMATION ANDINVENTION ASSIGNMENT AGREEMENT

Exhibit 10.1

SUPERGEN, INC.

EXECUTIVE EMPLOYMENT AND CONFIDENTIAL INFORMATION

AND INVENTION ASSIGNMENT AGREEMENT

This Executive Employment and Confidential Information and Invention Assignment Agreement (the “Agreement”) is made and entered into effective as of April 1, 2009 (the “Effective Date”) by and between SuperGen, Inc., a Delaware corporation (the “Company”), and James S. Manuso (“Executive”).

1.     Term.  The Company hereby agrees to continue to employ Executive and Executive hereby accepts continued employment, on the terms and conditions set forth herein.  The term of this Agreement shall commence upon the Effective Date and shall continue until and including March 31, 2012.

2.     Positions and Duties.  Executive agrees to continue to serve the Company as its President and Chief Executive Officer or in such other executive capacity as the Board may from time to time request.  During the term of this Agreement, Executive will have all duties and responsibilities that are reasonably consistent with these titles and positions and will devote all of his normal business time and attention to, and use his best efforts to advance, the business of the Company.  Executive agrees not to actively engage in any other employment, occupation or consulting activity for any direct or indirect remuneration without the prior approval of the Board of Directors (the “Board”), except that without the prior approval, Executive may serve on the board of directors of other companies if in so doing Executive does not violate the terms of this Agreement.

3.     Confidential Information.

3.1  Company Information.  Executive agrees at all times during the term of his employment and thereafter, to hold in the strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board, any confidential Information of the Company, except under a non-disclosure agreement duly authorized and executed by the Company.  Executive understands that “Confidential Information” means any non-public information that relates to the actual or anticipated business or research and development of the Company, technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding Company’s products or services and markets therefore, customer lists and customers (including, but not limited to, customers of the Company on whom Executive called with whom Executive became acquainted during the term of his employment), software developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information.  Executive further understands that Confidential Information does not include any of the foregoing items that have become publicly known and made generally available through no wrongful act of Executive’s or of others who were under confidentiality obligations as to the item or items involved or improvements or new versions thereof.

3.2  Former Employer Information.  Executive agrees that he will not, during his employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former employer or other person or entity and that he will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity.

3.3  Third Party Information.  Executive recognizes that the Company has received and in the future will receive from third parties their confidential or proprietary information subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes.  Executive agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any person, firm or corporation or to use it except as necessary in carrying out Executive’s work for the Company’s consistent with the Company’s agreement with such third party.

4.     Inventions.

4.1  Inventions Retained and Licensed.  Except as listed on Exhibit A, Executive does not have any inventions, original works of authorship, developments, improvements, and trade secrets which were made by him prior to his employment with the Company (collectively referred to as “Prior Inventions”), which belong to him, which may relate to the Company’s proposed business, products or research and development, and which were not previously assigned to the Company.  If in the course of Executive’s employment with the Company, Executive incorporates into a Company product, process or service a Prior Invention owned by Executive or in which Executive has an interest, Executive hereby grants to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license to make, have made, modify, use and sell such Prior Invention as part of or in connection with such product, process or service, and to practice any method related thereto.

4.2  Assignment of Inventions.  Executive agrees that Executive will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or its designee, all Executive’s right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under copyright or similar laws, which Executive may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time Executive is in the employ of the Company (collectively referred to as “Inventions”), except as provided in Section 4.6 below.  Executive further acknowledges that all original works of authorship which are made by him (solely or jointly with others) within the scope of and during the period of his employment with the Company, and which are protectable by copyright, are “works made for hire,” as that term is defined in the United States Copyright Act.  Executive understands and agrees that the decision

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whether or not to commercialize or market any Invention developed by Executive solely or jointly with others is within the Company’s sole discretion and for the Company’s sole benefit and that no royalty will be due to Executive as a result of the Company’s efforts to commercialize or market any such Invention.

4.3  Inventions Assigned To The United States.  Executive agrees to assign to the United States government all his right, title, and interest in and to any and all Inventions whenever such full title is required to be in the United States by a contract between the Company and the United States or any of its agencies.

4.4  Maintenance of Records.  Executive agrees to keep and maintain adequate and current written records of all Inventions made by Executive (solely or jointly with others) during the period of his employment with the Company.  The records will be in the form of notes, sketches, drawings, and any other format that may be specified by the Company.  The records will be available to and remain the sole property of the Company at all times.

4.5  Patent and Copyright Registrations.  Executive agrees to assist the Company, or its designee, at the Company’s expense, in every proper way to secure the intellectual property rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem necessary in order to apply for and obtain such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.  Executive further agrees that his obligation to execute or cause to be executed when it is in his power to do so, any such instrument or papers shall continue after the termination of this Agreement.  If the Company is unable because of Executive’s mental or physical incapacity or for any other reason to secure Executive’s signature to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering Inventions or original works of authorship assigned to the Company as above, then Executive hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as his agent and attorney in fact, to act for and in Executive’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters patent or copyright registrations thereon with the same legal force and effect as if executed by Executive.

4.6  Exception to Assignments.  Executive understands that the provision of this Agreement requiring assignment of Inventions to the Company do not apply to any Invention which qualifies fully under the provisions of California Labor Code section 2870 (attached as Exhibit B ).  Executive will advise the Company promptly in writing of any Inventions that Executive believes meet the criteria in California Labor Code Section 2870.

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5.     Office.  The Company shall provide Executive with an office at the location of the Company’s primary business operations that is consistent with his positions and titles.

6.     Compensation and Fringe Benefits.

6.1  Base Salary.  For all services rendered by Executive pursuant to this Agreement, the Company shall pay Executive a base salary (the “Base Salary”) at the annual rate of not less than Five Hundred Seventy Four Thousand Seven Hundred Fifty Two Dollars ($574,752.00) as of the Effective Date.  Commencing January 1, 2010, the Executive’s annual salary will be adjusted to Six Hundred Twenty Five Thousand Dollars ($625,000.00).  The Base Salary shall be paid in periodic installments in accordance with the Company’s regular payroll practices.  Executive’s annual salary shall be adjusted annually thereafter on January 1 of each year during the term of the agreement to compensate for changes in the cost of living.  The amount of each annual cost of living increase shall be twice the rate determined for such annual period by the “Consumer Price Index for Urban Wage Earners and Clerical Workers (All Items) published by the bureau of Labor Statistics, U.S. Department of Labor (1967 equals 100).”

6.2  Performance Bonus.

(a)                                                      For the calendar year 2009, the Executive shall be eligible to receive an annual performance-based bonus of Three Hundred Fifty Thousand Dollars ($350,000.00) based upon achievement of certain criteria to be specified by the compensation committee of the Board (“Compensation Committee”), including (without limitation) revenue and profitability targets and/or other organizational and strategic milestones (the “2009 Performance Bonus”).  The 2009 Performance Bonus shall be based upon achieving performance objectives during 2009 and shall be payable in accordance with the Company’s normal payroll practices and policies no later than March 15 of the year following the year in which Executive’s right to such bonus vests.

(b)                                                     For the remaining term of the Agreement, the Executive shall be eligible to receive an annual performance-based bonus of Six Hundred Fifty Thousand Dollars ($650,000.00) based upon achievement of certain criteria to be specified by the Compensation Committee, including (without limitation) revenue and profitability targets and/or other organizational and strategic milestones (the “Performance Bonus”).  The Performance Bonus shall be based upon achieving performance objectives during each calendar year and shall be payable in accordance with the Company’s normal payroll practices and policies no later than March 15 of the year following the year in which Executive’s right to such bonus vests.

6.3  Stock Options.

(a)           Annual Options.  Executive shall be permitted to

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participate in any stock option and similar plans as adopted by the Company from time to time for the grant of stock options and other equity incentives to the Company’s employees.  On the first business day occurring on or after April 1, 2010 of each year during the term of this Agreement (subject to Executive’s continuous employment with the Company through each such anniversary), the Company shall grant Executive a stock option with a vesting commencement date of April 1 of the year in which it is granted, which will be, to the extent possible under the $100,000 rule of Section 422(d) of the Internal Revenue Code of 1986, as amended (the “Code”), an “incentive stock option” (as defined in Section 422 of the Code), under the Company’s 2003 Stock Plan (the “Plan”) to purchase 360,000 shares of the Company’s common stock (as adjusted for stock splits and stock combinations that may occur after the date of this Agreement), which each such option shall have a per share exercise price equal to the fair market value of the Company’s common stock on the applicable date of grant (each an “Annual Option” and collectively, the “Annual Options”).  Subject to the accelerated vesting provisions set forth herein, each Annual Option will vest as to 1/12th of the shares subject to such option each month following its date of grant, so that each Annual Option will be fully vested and exercisable one year from its grant date, subject to Executive’s continuous service to the Company through each relevant vesting date.  Notwithstanding the above, in the event of a Change in Control (as defined in Section 7.4 below) of the Company prior to the granting of all Annual Options, and that occurs while Executive remains employed hereunder, then all Annual Options yet to be granted through the term of the Agreement will immediately be granted and 100% of the then-unvested shares subject to all such Annual Options will vest and become exercisable.

(b)      Performance Options.

(i) On the Effective Date, the Company shall grant Executive a stock option, which is, to the extent possible under the $100,000 rule of Section 422(d) of the Code, an “incentive stock option” (as defined in Section 422 of the Code), under the Plan to purchase 1,200,000 shares of the Company’s common stock, which such option shall have a per share exercise price equal to the fair market value of the Company’s common stock on the Effective Date (the “2009 Performance Option” and together with the Annual Options, the “Options”).

(ii) The 2009 Performance Option shall vest upon the Company’s achievement of the following performance milestones, subject to Executive’s continuous employment with the Company through the date any such performance milestone is achieved:

(A)                              100,000 shares will vest upon the clearance by the U.S. Food and Drug Administration (“FDA”) of an Investigational New Drug Application (“IND”) submitted by the Company that will allow the Company to initiate a clinical study of the compound that is the subject of the IND;

(B)                                100,000 shares will vest upon clearance by the FDA of another IND submitted by the Company that will allow the Company to initiate a

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clinical study of the compound that is the subject of the IND (subsequent to the IND described in subsection (A) above);

(C)                                100,000 shares will vest upon clearance by the FDA of another IND submitted by the Company that will allow the Company to initiate a clinical study of the compound that is the subject of the IND (subsequent to the INDs described in subsections (A) and (B) above);

(D)                               100,000 shares will vest upon the execution of a definitive agreement with a corporate partner or licensee for one or more of the drugs in the Company’s portfolio, or for a discovery collaboration, providing the value to the Company of any such deal is projected to exceed $10 million in combined up-front payments, R&D payments, milestones and royalties to the Company throughout its course;

(E)                                 100,000 shares will vest upon the execution of a definitive agreement with a corporate partner or licensee for one or more of the drugs in the Company’s portfolio, or for a discovery collaboration, providing the value to the Company of any such deal is projected to exceed $15 million in combined up-front payments, R&D payments, milestones and royalties to the Company throughout its course;

(F)                                 250,000 shares will vest upon the securing of any one of the following:  (1) execution of a definitive agreement with a third corporate partner or licensee for one or more of the drugs in the Company’s portfolio, or for a discovery collaboration, providing the value to the Company of any such deal is projected to exceed $25 million in combined up-front payments, R&D payments, milestones and royalties to the Company throughout its course; (2) a transaction wherein the Company acquires another company, and the combined entity is valued at a premium of at least 10 percent above the market capitalization of the Company immediately before the transaction is closed for a period of thirty (30) consecutive days based on the closing price of the Company’s common stock traded on the Nasdaq stock market; or (3) $25 million in additional financing either through the sale of debt, equity or other securities of the Company.  For the sake of clarity, 250,000 shares will vest upon the first of these that is secured — the securing of more than one of these shall not result in additional vesting;

(G)                                100,000 shares will vest upon the Company achieving a cash-flow positive year of operations during the term of this Agreement;

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(H)                               100,000 shares will vest upon the Company achieving the next cash-flow positive year of operations during the term of the Agreement that follows the cash-flow positive year of operations for which the performance milestone is achieved pursuant to subsection (G) above);

(I)                                    100,000 shares will vest upon the Company’s commencement of an FDA-cleared Phase II clinical trial; and

(J)                                   150,000 shares will vest upon achievement of additional milestone(s) to be agreed upon with the Board, including, but not limited to, acquisition of a company or drug that is assessed to be value-enhancing by the Board.

(iii)  Executive is still eligible to achieve the outstanding performance milestones described in Section 6.3(b) of that certain Amended and Restated Executive Employment and Confidential Information and Invention Assignment Agreement by and between the Company and Executive, dated as of October 28, 2008 (the “2008 Agreement”) with respect to the performance option granted to Executive in connection with the 2008 Agreement (the “2008 Performance Option”), and subject to Executive’s continuous employment with the Company through the date any such performance milestone is achieved.  For purposes of clarity, under no circumstances shall Executive vest in both the 2009 Performance Option and the 2008 Performance Option simultaneously, to the extent the performance milestones for each are duplicative.  Accordingly, the remaining unachieved performance milestones for the 2008 Performance Option are reproduced below, with certain modifications, for the purpose of avoiding duplication with the performance milestones for the 2009 Performance Option:

(A)                              100,000 shares subject to the 2008 Performance Option will vest upon the filing of an IND for a drug acquired as a result of the Company’s acquisition of Montigen; provided, however, that this performance milestone can only be achieved if the performance milestones set forth in subsections (ii)(A), (B) and (C) above are already achieved;

(B)                                100,000 shares subject to the 2008 Performance Option will vest upon the acquisition of a corporate partner or licensee for one or more of the drugs in the Company’s portfolio, providing the value of such deal is projected to exceed $10MM in combined up-fronts, R&D payments, milestones and royalties to the Company throughout its course; provided, however, that this performance milestone can only be achieved if the performance milestone set forth in subsection (ii)(D) above is already achieved;

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(C)                                250,000 shares subject to the 2008 Performance Option will vest upon the securing of (1) a significant corporate partner for one or more of the Company’s drugs or (2) $25,000,000 in additional financing; provided, however, that the performance milestone described in the preceding clauses can only be achieved if the performance milestone set forth in subsection (ii)(F)(1) and (3) above are already achieved;

(D)                               100,000 shares subject to the 2008 Performance Option will vest upon the Company achieving a cash-flow positive year of operations; provided, however, that this performance milestone can only be achieved for a cash-flow positive year of operations that follows both cash-flow positive years described in subsections (ii)(G) and (H) above; and

(E)                                 50,000 shares subject to the 2008 Performance Option will vest upon achievement of additional milestone(s) to be agreed upon with the Board, including, but not limited to, acquisition of a company or drug that is assessed to be value-enhancing by the Board.

(iv)  In addition, Executive is still eligible to achieve the outstanding performance milestones described in Section 6.3(b) of that certain Executive Employment and Confidential Information and Invention Assignment Agreement by and between the Company and Executive, dated as of January 1, 2004 (the “2004 Agreement”), as set forth below.  The performance option granted pursuant to the 2004 Agreement shall vest upon the Company’s achievement of the following performance milestones, subject to Executive’s continuous employment with the Company through the date any such performance milestone is achieved:

(A)                              50,000 shares shall vest upon European approval of Decitabine;

(B)                                50,000 shares shall vest upon the acquisition from a third party of at least one Phase II or more advanced compound;

(C)                                100,000 shares shall vest upon completion of Phase III of a compound acquired during Executive’s tenure as the Company’s Chief Executive Officer during the term of the 2004 Agreement; and

(D)                               100,000 shares shall vest upon FDA approval of a compound acquired by the Company during the term of the 2004 Agreement;

(E)                                 50,000 shares shall vest upon European approval of Orathecin; and

(F)                                 200,000 shares shall vest upon the Company achieving annual gross sales of $30,000,000 or more.

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(c)      Each Option shall have a term of ten (10) years from its date of grant, subject to earlier termination in connection with Executive’s termination of service to the Company as provided in the Option Agreements.  The Options will be subject to the terms, definitions and provisions of the Plan and the stock option agreements to be executed by and between Executive and the Company (the “Option Agreements”), all of which documents are incorporated herein by reference. Notwithstanding the above, in the event of a Change in Control (as defined in Section 7.4 below) of the Company prior to the vesting of the 2009 Performance Option and the 2008 Performance Option (if outstanding) and that occurs while Executive remains employed hereunder, 100% of the then unvested shares subject to the 2009 Performance Option and the 2008 Performance Option (if outstanding) shall immediately vest and become exercisable.

6.4  Life Insurance.  During the term of the Agreement, the Company will pay the full premium on a $4 million key person life insurance policy covering Executive.  Executive will be entitled to select personal beneficiaries for 50% of the proceeds of the insurance policy.  The Company will provide Executive with additional cash compensation at the end of each calendar year to fully offset taxes attributable to Executive as a result of payment of the life insurance premiums by the Company.

6.5  Other Benefits.  Executive shall be entitled to participate in such group life, pension, disability, accident, hospital and medical insurance plans, and such other plan or plans which may be instituted by the Company for the benefit of its executive employees generally, upon such terms as may be therein provided of general application to all executive employees of the Company and such other benefits as are mutually deemed appropriate by the Compensation Committee and Executive to the position held by Executive and to the discharge of Executive’s duties.  Executive shall be entitled to not less than twenty (20) business days’ vacation per year, with remuneration, which shall be coordinated with the vacation periods of other officers of the Company in a manner that will minimize disruption of the Company’s management efforts.

6.6  Additional Compensation.  Executive shall also be eligible to receive such additional salary or other incentive compensations as the Compensation Committee may, in its sole discretion, determine from time to time.

7.     Expenses.

7.1  Automobile Expense.   For the calendar year 2009, up to a maximum of Twenty-Five Thousand Dollars ($25,000.00) annually, the Company will lease and pay for the maintenance of an automobile selected by Executive for his exclusive use.  The Company will also pay for automobile insurance for the Executive, up to a maximum of Four Thousand Dollars ($4,000.00) annually.

For the remaining term of the Agreement, up to a maximum of Thirty

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Thousand Dollars ($30,000.00) annually, the Company will lease and pay for the maintenance of an automobile selected by Executive for his exclusive use.  The Company will also pay for automobile insurance for the Executive, up to a maximum of Five Thousand Dollars ($5,000.00) annually.

7.2  Business Expenses.  The Company will pay or reimburse Executive for reasonable travel, entertainment or other expenses incurred by Executive in the furtherance of or in connection with the performance of Executive’s duties hereunder in accordance with the Company’s established policies.  Executive shall furnish the Company with evidence of the incurrence of such expenses within a reasonable period of time from the date that they were incurred.

7.3 Relocation Expenses.  In the event Executive undergoes an “Involuntary Termination” (as defined below and to include the result of a merger or acquisition in which Executive is not offered full-time employment as Chairman, President and/or CEO of the surviving entity), the Company will pay or reimburse Executive for all reasonable relocation expenses incurred by Executive in connection with his and his family’s relocation from California to New York, including, but not limited to short-term hotel costs or apartment rental for Executive for a period not to exceed six (6) months, house-hunting travel by Executive’s spouse and all household goods moving costs.  The total of all such amounts will not exceed $100,000.  Executive must submit a request for reimbursement of relocation expenses no later than the December 31 of the second calendar year following the calendar year in which Executive undergoes an Involuntary Termination and the Company will not reimburse Executive for any expenses incurred after such date.  The Company will reimburse Executive within ninety (90) days after receipt of Executive’s request for reimbursement.  The Company will provide Executive with additional cash compensation at the end of the calendar year to fully offset taxes attributable to Executive as a result of payment of such reasonable relocation expenses by the Company, which such amount will be paid to Executive no later than the December 31 of the calendar year following the calendar year in which Executive pays the tax on the relocation expenses.

7.4  Termination Benefits.  If Executive’s employment with the Company is terminated by the Company as a result of an “Involuntary Termination” (as defined below) within one (1) year following a “Change in Control” (as defined below), Executive shall be entitled to receive the following severance benefits:  (1) a lump sum payment equivalent to eighteen (18) months of Executive’s then current Base Salary, which shall be paid no later no later than seventy (70) days following the date of Executive’s termination of employment; and (2) a lump sum payment equivalent to any unpaid amount of the Bonuses referenced in Section 6.2, up to a maximum of One Million Dollars ($1,000,000.00), which shall be paid no later no later than seventy (70) days following the date of Executive’s termination of employment; and (3) full acceleration of the vesting of any then unvested stock options held by Executive.

If Executive’s employment with the Company is terminated by the Company as a

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result of an Involuntary Termination prior to the occurrence of a Change in Control, Executive may be eligible for severance benefits under the Company’s Severance Benefit Plan for Officers, to the extent determined by the Board.

For the purposes of this Agreement, “Involuntary Termination” means (i) without Executive’s express written consent, a material diminution of Executive’s duties, position or responsibilities relative to Executive’s duties, position or responsibilities in effect immediately prior to such reduction; (ii) without Executive’s express written consent, a material diminution by the Company of Executive’s base salary as in effect immediately prior to such reduction; (iii) any material breach by the Company of any of the terms of this Agreement; (iv) without Executive’s express written consent, the relocation of Executive to a facility or a location more than fifty (50) miles from the current location of the Company, which the Company and Executive agree would constitute a material change in the geographic location at which Executive must perform services to the Company, or (v) any purported termination of Executive other than for “Cause” (as defined below).  Executive will not resign for an Involuntary Termination without first providing the Company (x) with written notice within ninety (90) days of the event that Executive believes constitutes an Involuntary Termination specifically identifying the acts or omissions constituting the grounds for an Involuntary Termination and (y) a reasonable cure period of not less than thirty (30) days following the date of such notice.

For the purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company’s then outstanding voting securities; (ii) the consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; or (iii) the consummation of a merger or consolidation of the Company with any other corporation, other than a merger consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.

For the purposes of this Agreement, “Cause” means (i) any act of personal dishonesty taken by the Executive in connection with his employment hereunder, which is intended to result in personal enrichment of the Executive, (ii) the Executive’s conviction of a felony, (iii) any act by the Executive that constitutes material misconduct and is injurious to the Company, or (iv) continued violations by the Executive of the Executive’s obligations to the Company.

7.5  Limitation on Payments.  In the event that the severance and other

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benefits provided for in this Agreement or otherwise payable to Executive, including but not limited to, the accelerated vesting of any stock options previously or hereafter granted to Executive, (i) constitute “parachute payments” within the meaning of Section 280G of the Code, and (ii) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then Executive’s benefits under this Agreement shall be reduced to the extent necessary in order to avoid such benefits being subject to the Excise Tax.  In the event of any such reduction, such benefits shall be reduced in the following order: (i) cash, (ii) equity award acceleration, (iii) option grants, and (iv) employee benefits.

Unless the Company and Executive otherwise agree in writing, any determination required under this Section shall be made in writing by the Company’s independent public accountants (the “Accountants”), whose determination shall be conclusive and binding upon Executive and the Company for all purposes.  For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code.  The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section.  The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.

7.6  Section 409A

(a)           Notwithstanding anything to the contrary in the Agreement, if Executive is a “specified employee” within the meaning of Section 409A at the time of Executive’s termination of employment (other than due to death), and the severance payable to Executive, if any, pursuant to the Agreement, when considered together with any other severance payments or separation benefits that are considered deferred compensation under Section 409A (together, the “Deferred Compensation Separation Benefits”) that are payable within the first six (6) months following Executive’s termination of employment, then such severance will become payable on the first payroll date that occurs on or after the date six (6) months and one (1) day following the date of Executive’s termination of employment.  All subsequent Deferred Compensation Separation Benefits, if any, will be payable in accordance with the payment schedule applicable to each payment or benefit.  Notwithstanding anything herein to the contrary, if Executive dies following Executive’s termination of employment but prior to the six (6) month anniversary of Executive’s termination of employment, then any payments delayed in accordance with this paragraph will be payable in a lump sum as soon as administratively practicable after the date of Executive’s death and all other Deferred Compensation Separation Benefits will be payable in accordance with the payment schedule applicable to each payment or benefit.  Each payment and benefit payable under this Agreement is intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations.

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(b)           Any amount paid under the Agreement that satisfies the requirements of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations will not constitute Deferred Compensation Separation Benefits for purposes of this Agreement.  Any amount paid under the Agreement that qualifies as a payment made as a result of an involuntary separation from service pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A Limit will not constitute Deferred Compensation Separation Benefits for purposes of this Agreement.  For this purpose, “Section 409A Limit” means the lesser of two (2) times: (A) Executive’s annualized compensation based upon the annual rate of pay paid to Executive during the Company’s taxable year preceding the Company’s taxable year of Executive’s termination of employment as determined under Treasury Regulation 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with respect thereto; or (B) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code for the year in which Executive’s employment is terminated.

(c)           The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein will be interpreted to so comply.  Executive and the Company agree to work together in good faith to consider amendments to the Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A.

8.     Arbitration And Equitable Relief.

8.1  Arbitration.  In consideration of Executive’s employment with the Company, the Company’s promise to arbitrate all employment-related disputes and Executive’s employment with the Company, the Company’s promise to arbitrate all employment-related disputes and Executive’s receipt of the compensation and other benefits paid to Executive by the Company, at present and in the future, Executive agrees that any and all controversies claims or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit pan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from Executive’s employment with the Company, or the termination of Executive’s employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “Rules”) and pursuant to California law.  Disputes which Executive agrees to arbitrate, and thereby agrees to waive any right to a trial by jury, include any statutory claims under the state or federal law, including, but not limited to, claims under title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the California Fair Employment and Housing Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory claims.  Executive further understands that this

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Agreement to arbitrate also applies to any disputes that the Company may have with Executive.

8.2  Procedure.  Executive agrees that any arbitration will be administered by the American Arbitration Association (“AAA”) and that the neutral arbitrator will be selected in a manner consistent with its National rules for the Resolution of Employment Disputes.  Executive agrees that the arbitrator shall have the power to decide any motions brought to any party to the arbitration, including motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing.  Executive also agrees that the arbitrator shall have the power to award any remedies, including attorneys’ fees and costs, available under applicable law.  Executive understands the Company will pay for any administrative or hearing fees charged by the arbitrator or AAA, except that Executive shall pay the first $125.00 of any filing fees associated with any arbitration he initiates.  Executive agrees that the arbitrator shall administer and conduct any arbitration in a manner consistent with the rules and that to the extent that the AAA’s National Rules for the Resolution of Employment Disputes conflict with the Rules, the Rules shall take precedence.  Executive agrees that the decision of the arbitrator shall be in writing.

8.3  Remedy.  Except as provided by the Rules and this Agreement, arbitration shall be the sole, exclusive and final remedy for any dispute between Executive and the Company.  Accordingly, except as provided for and by the Rules and this Agreement, neither Executive nor the Company will be permitted to pursue court action regarding claims that are subject to arbitration.  Notwithstanding, the arbitrator will not have the authority to disregard or refuse to enforce any lawful Company policy, and the arbitrator shall not order or require the Company to adopt a policy not otherwise required by law which the Company has not adopted.

8.4  Availability Of Injunctive Relief.  In addition to the right under the Rules to petition to the court for provisional relief, Executive agrees that any party may also petition the court for injunctive relief whether either party alleges or claims a violation of this Agreement or any other agreement regarding trade secrets, confidential information, and nonsolicitation of Labor Code 2870.  Executive understands that any breach or threatened breach of such an agreement will cause irreparable injury and that money damages will not provide an adequate remedy therefor and both parties hereby consent to the issuance of an injunction.  In the event either party seeks injunctive relief, the prevailing party shall be entitled to recover reasonable costs and attorney fees.

8.5  Administrative Relief.  Executive understands that this Agreement does not prohibit Executive from pursuing an administrative claim with a local, state or federal administrative body such as the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission, or the Workers’ Compensation Board.  This Agreement, however, does preclude Executive from pursing court action regarding any such claim.

8.6  Voluntary Nature Of This Agreement.  Executive acknowledges

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and agrees that Executive is executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else.  Executive further acknowledges and agrees that Executive has carefully read this Agreement and has asked any questions needed for Executive to understand the terms, consequences and binding effect of this Agreement and fully understand it, including that Executive is waiving his right to a jury trial.  Finally, Executive agrees that he has been provided an opportunity to seek the advice of an attorney of his choice before signing this Agreement.