exv10w1






Exhibit 10.1




iRobot Corporation

8 Crosby Drive

Bedford, MA 01730



This [Amended and Restated] Executive
Agreement (the “Agreement”), by and among iRobot
Corporation, a Delaware corporation (the
“Company”), and the executive named below
(“Executive”), sets forth the terms and
conditions by which the Company will provide
certain benefits for Executive under certain
circumstances in the event of a termination of
Executive’s employment with the Company. The
effective date of this Agreement shall be the
date of last execution as set forth below (the
“Execution Date”).




	 	 	 	 	 	 	 	 	 	 	 

	iRobot Corporation	 	 	 	EXECUTIVE	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

Name: Colin Angle
	 	 
	 	 	 	 

Name:
	 	 
	 

	 	Title: Chairman and CEO
	 	 	 	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date: May ___, 200_	 	 	 	Date: May ___, 200_	 	 






     WHEREAS, Executive currently is an employee of the Company and an Officer (as hereinafter
defined), and is expected to make significant contributions to the business, growth and financial
strength of the Company;



     WHEREAS, the Company recognizes that the uncertainty regarding the consequences of a
termination of Executive’s employment as an Officer of the Company may adversely affect the
Company’s ability to retain Executive;



     WHEREAS, the Company further recognizes that, as is the case for most publicly-held companies,
the possibility of a Change in Control (as hereinafter defined) exists, which may alter the nature
and structure of the Company, and that the uncertainty regarding the consequences of such an event
may adversely affect the Company’s ability to retain Executive as an Officer;



     WHEREAS, the Company desires to more closely align Executive’s interests with those of the
shareholders of the Company with respect to any Change in Control that may benefit the
shareholders;



     WHEREAS, the Company desires to assure itself of both present and future continuity of
management in the event of a Change in Control by establishing certain benefits for Executive
applicable under certain circumstances in the event of a Change in Control;



     WHEREAS, the parties desire to set forth in writing the terms and conditions of their
agreement with respect to the provision of benefits for Executive applicable under certain
circumstances in the event of a Change in Control; and



     [WHEREAS, the Company and Executive are parties to that Executive Agreement, dated as of
[_______] (the “Prior Agreement”) and wish to amend, restate and fully supersede the Prior
Agreement on the terms and conditions set forth herein];



 









 





     NOW, THEREFORE, in consideration of the premises and the mutual covenants and obligations
herein contained, it is agreed among the parties hereto as follows:



     1. Term. This Agreement shall continue for a term commencing on the Execution Date
and ending on the date two years thereafter (“Initial Term”), and shall be automatically renewed
from year to year thereafter for successive one-year terms (each a “Renewal Term”) unless ninety
(90) days prior to the expiration of the initial term or any renewal term, a party gives written
notice of non-renewal to the other party; provided that any such notice provided by the Company any
time during the period beginning on the date that is forty-five (45) days prior to the date upon
which a definitive agreement for a Change in Control is publicly announced as having been executed
by the Company (the “Announcement Date”) and ending on the first anniversary of the
effective date of a Change in Control, shall have no effect whatsoever, and the Agreement shall
continue in force until such time as otherwise terminated in accordance with the terms hereof. If
an effective notice of non-renewal is given as permitted hereunder, this Agreement will expire at
the conclusion of either the Initial Term or the Renewal Term, whichever is applicable, unless
terminated earlier as permitted by Section 2 hereof. The “Term” of this Agreement shall include
the Initial Term, as well as any Renewal Term, if applicable, subject to termination at any time
prior to the expiration of the Term as provided in Section 2 hereof; provided,
however, that in the event of the first Change in Control to occur during the Term
(including after any notice of non-renewal is given), the Term shall automatically continue through
the first anniversary of the effective date of such Change in Control.



     2. At-Will Status. Notwithstanding any provision of this Agreement, Executive will
remain employed at-will, so that Executive or the Company may terminate Executive’s employment at
any time, with or without notice, for any or no reason, and this Agreement shall not create or
imply any right or duty of Executive or the Company to have Executive remain in the employ thereof
for any period of time. This Agreement shall automatically terminate on the earliest date of: (a)
Executive’s Termination Date (as hereinafter defined) if Executive’s employment ceases for any
reason other than due to an Involuntary Termination Upon a Change in Control or a Resignation for
Good Reason Upon a Change in Control (as such terms are hereinafter defined); or (b) the date
immediately following the one-year anniversary of the effective date of the first Change in Control
to occur during the Term; provided, that, notwithstanding any provision in this Agreement to the
contrary, if Executive’s employment is terminated by the Company prior to a Change in Control for
any reason other than for Cause, death or Disability (as hereinafter defined) or ceases due to an
Involuntary Termination Upon a Change in Control or a Resignation for Good Reason Upon a Change in
Control, this Agreement shall remain in effect until all obligations of the parties hereunder have
been fully satisfied.



     3. Definitions. As used in this Agreement, the following terms shall have the
meanings set forth herein:



          a. “Cause” shall mean any one or more of the following: (i) Executive’s failure or
refusal to perform his/her duties on behalf of the Company or Executive’s unsatisfactory
performance (except due to Disability) for a period of thirty (30) days after receiving written
notice identifying in reasonable detail the nature of such failure, refusal or unsatisfactory
performance; (ii) Executive’s commission of a felony or misdemeanor involving deceit, dishonesty or
fraud; (iii) disloyalty, willful misconduct or breach of fiduciary duty by Executive; or (iv)
Executive’s violation of any confidentiality, developments or non-competition agreement or any
written employment polices related to conduct such as harassment or any code of conduct.
Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution duly adopted by the
Company’s Board of Directors (the “Board”) (excluding Executive if he is a Director) at a meeting
of the Board called and held for (but not necessarily exclusively for) that purpose (after
reasonable notice to Executive and an opportunity for Executive to be heard by the Board) finding



 









 




that Executive has, in the good faith opinion of the Board, engaged in conduct constituting
Cause and specifying the particulars thereof in reasonable detail.




          b. “Change in Control” shall mean the occurrence of any of the following events:



               (i) The Company is merged or consolidated or reorganized into or with another corporation or
other legal person, and as a result of such merger, consolidation or reorganization less than fifty
percent (50%) of the combined voting power of the then-outstanding securities of such surviving,
resulting or reorganized corporation or person immediately after such transaction is held in the
aggregate by the holders of the then-outstanding securities entitled to vote generally in the
election of directors of the Company (“Voting Stock”) immediately prior to such
transaction;



               (ii) The Company sells or otherwise transfers all or substantially all of its assets to any
other corporation or other legal person, and as a result of such sale or transfer less than fifty
percent (50%) of the combined voting power of the then-outstanding securities of such corporation
or person immediately after such sale or transfer is held in the aggregate by the holders of Voting
Stock of the Company immediately prior to such sale or transfer;



               (iii) Any corporation or other legal person, pursuant to a tender offer, exchange offer,
purchase of stock (whether in a market transaction or otherwise) or other transaction or event
acquires securities representing 30% or more of the Voting Stock of the Company, or there is a
report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as
promulgated pursuant to the U.S. Securities Exchange Act of 1934, as amended (the “Exchange
Act”), disclosing that any “person” (as such term is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act) has become the “beneficial owner” (as such term is used in
Rule 13d-3 under the Exchange Act) of securities representing 30% or more of the Voting Stock of
the Company;



               (iv) The Company files a report or proxy statement with the Securities and Exchange Commission
pursuant to the Exchange Act disclosing under or in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a change in control of the Company has
occurred; or



               (v) If during any period of two consecutive years, individuals who at the beginning of any
such period constitute the Board cease for any reason to constitute at least a majority thereof,
unless the election, or the nomination for election by the Company’s stockholders, of each director
of the Company first elected during such period was approved by a vote of at least a majority of
the directors then still in office who were directors of the Company at the beginning of any such
period;


provided, however, that a “Change in Control” shall not be deemed to have occurred
for purposes of this Agreement solely because (i) the Company, (ii) an entity in which the Company
directly or indirectly beneficially owns 50% or more of the Voting Stock, or (iii) any
Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company,
either files or becomes obligated to file a report or a proxy statement under or in response to
Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report)
under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock or because
the Company reports that a change in control of the Company has occurred by reason of such
beneficial ownership.




          c. “Company” shall mean iRobot Corporation, its assigns, and its Successors.



          d. “Disability” shall mean any physical or mental disability that renders Executive
unable to perform his/her essential job responsibilities for a cumulative period of 180 days in any
twelve-month period, where such disability cannot be reasonably accommodated absent undue hardship.



 









 





          e. “Executive Office” shall mean those offices of the Company domiciled in the United
States that the Board in its reasonable discretion may designate from time to time as constituting
an officer position pursuant to Section 16 of the Exchange Act and/or such other officers of the
Company as the Board shall designate from time to time. Any person holding an Executive Office
shall be an “Officer.”



          f. “Incentive Pay Eligibility” shall mean the aggregate amount of any cash
compensation derived from any bonus, incentive, performance, profit-sharing or similar agreement,
policy, plan or arrangement of the Company that Executive is eligible to receive based upon the
attainment of 100% target or quota with respect to any one year.



          g. “Involuntary Termination Upon a Change in Control” shall mean the termination of
the employment of Executive by the Company without Cause at any time within the period beginning on
the date that is forty-five (45) days prior to the Announcement Date and ending on the first
anniversary of the effective date of a Change in Control. “Involuntary Termination Upon Change in
Control” shall not include any termination of Executive’s employment (a) for Cause; (b) as a result
of Executive’s Disability; (c) as a result of Executive’s death; or (d) by Executive for any
reason.



          h. “Resignation for Good Reason Upon a Change in Control” shall occur in the event the
Executive resigns from his employment because the occurrence of any of the following “Events”
without Executive’s prior written consent during the one-year period beginning on the effective
date of a Change in Control and provided Executive provides notice specified below:



               (i) The substantial reduction of Executive’s aggregate base salary;



               (ii) A material diminution in Executive’s responsibilities, authority or duties;



               (iii) The permanent relocation of Executive’s primary workplace to a location more than thirty
(30) miles away from Executive’s workplace in effect immediately prior to a Change in Control;



               (iv) Failure of any Successor to, or assignee of, the Company to assume the duties and
obligations of the Company under this Agreement pursuant to Section 13 hereof; or



               (v) The substantial reduction in Executive’s (1) Incentive Pay Eligibility or (2) the benefits
for which Executive was eligible, in each case, in effect immediately prior to a Change in Control
unless, however, in the case of subclause (2) only, such reduction is due to an across-the-board
reduction applicable to all senior executives of the Company and any Successor, and the benefits
available to Executive after such across-the-board reduction are no less favorable than those
available to similarly-situated executives of the Company and such Successor; and provided that any
substantial reduction in the case of subclause (1) or (2) results in a material negative change to
the Executive for purposes of Section 409A of the Code, based on all of the relevant facts and
circumstances; and


(x) Within sixty (60) days after the first occurrence of any such Event, Executive provides written
notice to the Company describing with reasonable specificity the Event and stating his/her
intention to resign from employment due to such Event, (y) Executive cooperates in good faith with
the Company’s efforts, for a period not less than thirty (30) days following such notice (the “Cure
Period”) to remedy such Event; and (z) Executive terminates his employment because of the Event
within sixty (60) days after the end of the Cure Period. If the Company cures an Event during the
Cure Period, such Event shall be deemed not to have occurred.





 









 




          j. “Severance Benefits” shall mean:



               (i) payment equal to 50% (i.e. six (6) months) of Executive’s base salary, at the highest
annualized rate in effect during the one (1) year period immediately prior to the Termination Date,
payable in six (6) equal monthly installments, beginning on the first regular payroll date that
occurs 53 days after the Termination Date. Solely for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), each installment payment of the Severance
Benefits is considered a separate payment and the first installment payment shall include a
catch-up payment covering amounts that would otherwise have been paid during the 53-day period but
for the application of this provision, and the balance of the installments shall be payable in
accordance with their original schedule; and



               (ii) in the event Executive elects after the Termination Date to continue health, vision
and/or dental coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), the Company will pay, on a monthly basis, the portion of the Executive’s monthly
premium payments that the Company pays for active employees for each such coverage elected by
Executive for Executive and his or her eligible dependents, until the earliest of the following
dates to occur with respect to each such elected coverage: (A) the six month anniversary of the
Termination Date; (B) the date upon which Executive becomes covered under a comparable group plan
for such applicable coverage; or (C) the date upon which Executive ceases to be eligible for COBRA
continuation for such applicable coverage.



          k. “Stock Plans” shall mean the 2005 Stock Option and Incentive Plan and any other
stock plans or stock option plans established and maintained by the Company at any time during the
Term and pursuant to which Executive holds any options, stock, awards and/or purchase rights, each
as may be or may have been amended.



          l. “Successor” shall mean any successor to the Company (whether direct or
indirect, by Change in Control, operation of law or otherwise), including but not limited to any
successor (whether direct or indirect, by Change in Control, operation of law or otherwise) to, or
ultimate parent entity of any successor to, the Company.



          m. “Termination Date” shall mean Executive’s last date of employment with the
Company.



          n. “Vesting Date” shall have the meaning specified in Section 5.a.(iv) hereof.



     4. Effect of a Termination without Cause. If Executive’s employment is terminated by
the Company at any time during the Term and prior to a Change in Control for any reason that does
not constitute Cause, death or Disability, Executive shall be entitled to receive the following,
subject to Section 7 hereof; provided, however that if such termination constitutes an Involuntary
Termination Upon a Change in Control or a Resignation for Good Reason Upon a Change in Control,
Executive shall instead be entitled to the Change in Control Benefits described in Section 5.a of
this Agreement.



          a. The Severance Benefits.



          b. Executive shall also be entitled to any unpaid salary and benefits, and unused vacation
accrued, through the Termination Date, which amounts shall be paid no later than ten days after the
Termination Date (or otherwise in accordance with the terms of the applicable benefit plan).
Executive shall also be entitled to receive reimbursement for expenses that Executive reasonably
and necessarily incurred on behalf of the Company prior to the Termination Date, provided that
Executive submits expense reports and supporting documentation of such expenses as required by the
Company’s policy in effect at that time. Executive shall not be eligible for or entitled to any
severance payments or benefits pursuant to a severance plan, program, arrangement, practice or
policy of the Company, if any, that may be in effect as of the Termination Date, including without
limitation any other agreement,



 









 




entered into prior to the date hereof, that Executive may have with the Company regarding the
subject matter hereof.




     5. Effect of Involuntary Termination Upon a Change in Control or Resignation for Good
Reason Upon a Change in Control. In the event of an Involuntary Termination Upon a Change in
Control or a Resignation for Good Reason Upon a Change in Control during the Term, Executive shall
be entitled to the following:



          a. “Change in Control Benefits” as follows, subject to
Section 7 hereof:




               (i) Payment of an amount equal to 200% (i.e., 24 months) of Executive’s base salary, at the
highest annualized rate in effect during the period between the date immediately prior to the
effective date of a Change in Control and the Termination Date, payable in accordance with Section
5.a(v) below;



               (ii) Payment of an amount equal to 200% of the highest amount of Executive’s Incentive Pay
Eligibility with respect to the period beginning in the year prior to that in which the Change in
Control occurs and ending in the year in which Executive’s employment is terminated, payable in
accordance with Section 5.a(v) below; and



               (iii) In the event Executive elects after the Termination Date to continue health, vision
and/or dental coverage pursuant to COBRA, the Company will pay, on a monthly basis, the portion of
the Executive’s monthly premium payments that the Company pays for active employees for each such
coverage elected by Executive for Executive and his or her eligible dependents, until the earliest
of the following dates to occur with respect to each such elected coverage: (A) the second
anniversary of the Termination Date; (B) the date upon which Executive becomes covered under a
comparable group plan for such applicable coverage; or (C) the date upon which Executive ceases to
be eligible for COBRA continuation for such applicable coverage.



               (iv) Any and all unvested stock, stock options, awards and rights that were granted to
Executive under any of the Stock Plans prior to the Termination Date shall immediately become fully
vested and exercisable as of the Termination Date or, if Executive’s employment was terminated
within the 45-day period prior to the Announcement Date, as of the Announcement Date (whichever may
apply, the “Vesting Date”). Notwithstanding any contrary provision of any agreement
relating to then outstanding stock, stock options, awards and rights granted to Executive under any
of the Stock Plans after the Execution Date, all such stock, stock options, awards and rights
granted after the Execution Date may be exercised by Executive (or Executive’s heirs, estate,
legatees, executors, administrators, and legal representatives) at any time during the period
ending on the earlier of (A) the later of (i) three (3) months after the Vesting Date and (ii) if
Executive dies within the three-month period after the Vesting Date, the first anniversary of the
date of Executive’s death, and (B) the scheduled expiration of such stock, stock option, award or
right, as the case may be. Executive hereby acknowledges and agrees that, as a result of the
operation of Section 4 and this subsection 5.a(ii), some or all of the “incentive stock options”
(as defined in the Code) granted to Executive under the Stock Plans may no longer qualify as
“incentive stock options” for U.S. federal income tax purposes, and Executive hereby consents to
any such disqualification.



               (v) Each of the payments set forth in subsections 5.a.(i)-(ii) above (the “Cash Severance
Benefits”) shall be payable in twenty-four (24) equal monthly installments, beginning on the
first regular payroll date that occurs after the 53-day period following the Executive’s
Termination Date. Solely for purposes of Section 409A of the Code, each installment payment of the
Cash Severance Benefits is considered a separate payment and the first installment payment shall
include a catch-up payment covering amounts that would otherwise have been paid during the 53-day
period but for the



 









 




application of this provision, and the balance of the installments shall be payable in
accordance with their original schedule. The payments described in Section 5.a.(iii) hereof shall
be paid on a monthly basis.




          b. Executive shall also be entitled to any unpaid salary and benefits, and unused vacation
accrued, through the Termination Date, which amounts shall be paid no later than ten days after the
Termination Date (or otherwise in accordance with the terms of the applicable benefit plan).
Executive shall also be entitled to receive reimbursement for final expenses that Executive
reasonably and necessarily incurred on behalf of the Company prior to the Termination Date,
provided that Executive submits expense reports and supporting documentation of such expenses as
required by the Company’s policy in effect at that time. Executive shall not be eligible for or
entitled to any severance payments or benefits pursuant to a severance plan, program, arrangement,
practice or policy of the Company, if any, that may be in effect as of the Termination Date,
including without limitation any other agreement, entered into prior to the date hereof, that
Executive may have with the Company regarding the subject matter hereof.



     6. Liquidated Damages. The parties hereto expressly agree that provision of the
Severance Benefits or Change in Control Benefits to Executive in accordance with the terms of this
Agreement will be liquidated damages, and that Executive shall not be required to mitigate the
amount of any payments provided for in this Agreement by seeking other employment or otherwise, nor
shall any profits, income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of Executive hereunder or
otherwise.



     7. Conditions of Severance Benefits and Change in Control Benefits. Executive shall
receive Severance Benefits and/or Change in Control Benefits only if Executive: (a) executes a
separation agreement, which includes a general release of claims in favor of the Company and
related persons and entities in a form and of a scope reasonably acceptable to the Company; (b)
returns all property, equipment, confidential information and documentation of the Company; (c) has
complied and continues to comply with any noncompetition, inventions and/or nondisclosure
obligations that Executive may owe to the Company, whether pursuant to an agreement or applicable
law; and (d) provides a signed, written resignation of Executive’s status as an officer, including,
without limitation, an Executive Officer, and director (if applicable) of the Company and, if
applicable, its subsidiaries. In the event that Executive has breached any obligations described
in Section 7(c), then (x) the Cash Severance Benefits shall terminate and Executive shall no longer
be entitled to them; (y) Executive shall promptly repay to the Company any Cash Severance Benefits
previously received by Executive; and (z) all options, awards and purchase rights held by Executive
shall no longer be exercisable as of the date of Executive’s breach. Such termination and
repayment of Cash Severance Benefits and cessation of the right to exercise shall be in addition
to, and not in lieu of, any and all available legal and equitable remedies, including injunctive
relief. Notwithstanding anything in this Agreement to the contrary, no payment and vesting dates
will occur until after the separation agreement referred to in clause (a) above is executed by
Executive and becomes fully effective (including by any applicable revocation periods expiring).
Executive must satisfy each of the conditions specified above within the timeframes established by
the Company provided the Executive shall have no more than forty-five (45) days following
Executive’s Termination Date to satisfy the conditions specified in 7(a), 7(b) and 7(d) above.



     8. Taxes. All payments and benefits described in this Agreement shall be subject to
any and all applicable federal, state, local and foreign withholding, payroll, income and other
taxes. Except as specifically provided for herein, nothing shall be construed to require the
Company to make any payments to compensate Executive for any adverse tax effect associated with any
payments or benefits or for any deduction or withholdings from any payment or benefit.



     9. Section 409A. Anything in this Agreement to the contrary notwithstanding, if at
the time of Executive’s separation from service within the meaning of Section 409A of the Code, the
Company



 









 




determines that Executive is a “specified employee” within the meaning of Section
409A(a)(2)(B)(i) of the Code, and if any payment or benefit that Executive becomes entitled to
under this Agreement would be considered deferred compensation subject to interest, penalties and
additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of
Section 409A(a)(2)(B)(i) of the Code, then no such payment shall be payable or benefit shall be
provided prior to the date that is the earlier of (A) six months and one day after Executive’s
Separation from Service (defined below), or (B) Executive’s death. If any such delayed cash
payment is otherwise payable on an installment basis, the first payment shall include a catch-up
payment covering amounts that would otherwise have been paid during the six-month period but for
the application of this provision, and the balance of the installments shall be payable in
accordance with their original schedule. The parties intend that this Agreement will be
administered in accordance with Section 409A of the Code. For purposes of clarity, to the extent
that any payment or benefit hereunder is payable upon a termination of Executive’s employment, then
such payments or benefits shall only be payable upon Executive’s “Separation from Service.” The
term “Separation from Service” shall mean Executive’s ‘separation from service’ from the Company,
an affiliate of the Company or a successor entity within the meaning set forth in Section 409A of
the Code, determined in accordance with the presumptions set forth in Treasury Regulation Section
1.409A-1(h). All in-kind benefits provided and expenses eligible for reimbursement under this
Agreement shall be provided by the Company or incurred by the Executive during the time periods set
forth in this Agreement. All reimbursements shall be paid as soon as administratively practicable,
but in no event shall any reimbursement be paid after the last day of the taxable year following
the taxable year in which the expense was incurred. The amount of in-kind benefits provided or
reimbursable expenses incurred in one taxable year shall not affect the in-kind benefits to be
provided or the expenses eligible for reimbursement in any other taxable year. Such right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
The parties agree that this Agreement may be amended, as reasonably requested by either party, and
as may be necessary to fully comply with Section 409A of the Code and all related rules and
regulations in order to preserve the payments and benefits provided hereunder without additional
cost to either party. The Company makes no representation or warranty and shall have no liability
to Executive or any other person if any provisions of this Agreement are determined to constitute
deferred compensation subject to Section 409A but do not satisfy an exemption from, or the
conditions of, such section.




     10. Certain Reduction of Payments. If (a) the Change in Control Benefits and any
payment or benefit received or to be received by Executive pursuant to any other plan, arrangement
or agreement (collectively, the “Total Payments”) would constitute (in whole or in part) an
“excess parachute payment” within the meaning of Section 280G(b) of the Code, and (b) Executive
would retain more of the Total Payments (after the payment of applicable tax liabilities imposed on
the Total Payments) in the event that the Cap (defined below) is imposed, then the amount of the
Total Payments shall be reduced until the aggregate “present value” (as that term is defined in
Section 280G(d)(4) of the Code using the applicable federal rate in effect on the date of this
Agreement) of the Total Payments is such that no part of the Total Payments constitutes an “excess
parachute payment” within the meaning of Section 280G(b) of the Code (the “Cap”). In such
event, the Total Payments shall be reduced in the following order: (i) cash payments not subject
to Section 409A of the Code; (ii) cash payments subject to Section 409A of the Code; (iii)
equity-based payments and acceleration; and (iv) non-cash forms of benefits. To the extent any
payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced
in reverse chronological order.



     11. Exclusive Remedy. Except as expressly set forth herein or otherwise required by
law, Executive shall not be entitled to any compensation, benefits, or other payments as a result
of or in connection with the termination or resignation of Executive’s employment at any time, for
any reason. The payments and benefits set forth in Sections 4 and 5 hereof shall constitute
liquidated damages and shall be Executive’s sole and exclusive remedy for any claims, causes of
action or demands arising under



 









 




or in connection with this Agreement or its alleged breach, the termination or resignation of
Executive’s employment relationship, or the cessation of holding an Executive Office.




     12. Governing Law/Forum. The parties agree that any claims arising out of or in
connection with this Agreement shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts, and this Agreement shall in all respects be interpreted,
enforced and governed under the internal and domestic laws of such State, without giving effect to
the principles of conflicts of laws thereof. In addition, each of the parties, by its or his
execution hereof, hereby irrevocably submits to the exclusive jurisdiction of the state or federal
courts of Massachusetts with respect to any claims arising out of or in connection with this
Agreement and agrees not to commence any such claims or actions other than in such courts.
The prevailing party in any action arising out of or in connection with this Agreement shall
be entitled to payment, by the other party, of the prevailing party’s reasonable expenses and
attorneys’ fees incurred in connection with such action.



     13. Entire Agreement. This Agreement shall constitute the sole and entire agreement
among the parties with respect to the subject matter hereof, and supersedes and cancels all prior,
concurrent and/or contemporaneous arrangements, understandings, promises, programs, policies,
plans, practices, offers, agreements and/or discussions, whether written or oral, by or among the
parties regarding the subject matter hereof, including, but not limited to, the Prior Agreement and
any other agreement constituting or concerning employment agreements, change in control benefits
and/or severance benefits; provided, however, that this Agreement is not intended
to, and shall not, supersede, affect, limit, modify or terminate any of the following, all of which
shall remain in full force and effect in accordance with their respective terms: (i) any written
agreements, programs, policies, plans, arrangements or practices of the Company that do not relate
to the subject matter hereof; (ii) any written stock or stock option agreements between Executive
and the Company (except as expressly modified hereby); and (iii) any written agreements between
Executive and the Company concerning noncompetition, nonsolicitation, inventions and/or
nondisclosure obligations.



     14. Successors and Assignment. Executive may not assign any rights or delegate any
duties or obligations under this Agreement. The Company will require its respective assigns and
Successors to expressly assume this Agreement and to agree to perform hereunder in the same manner
and to the same extent that the Company would be required to perform if no such succession or
assignment had taken place. Regardless of whether such an agreement is executed, this Agreement
shall inure to the benefit of, and be binding upon, the Company’s Successors and assigns and
Executive’s heirs, estate, legatees, executors, administrators, and legal representatives.



     15. Notices. All notices required hereunder shall be in writing and shall be
delivered in person, by facsimile or by certified or registered mail (or similar means for non-U.S.
addresses), return receipt requested, and shall be effective upon receipt if by personal delivery
or facsimile or three (3) business days after mailing if sent by certified or registered mail (or
similar means for non-U.S. addresses). All notices shall be addressed as specified on the first
page of this Agreement or to such other address as the parties may later provide in writing.



     16. Severability/Reformation. If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise
illegal, the remainder of this Agreement and the application of such provision to any other person
or circumstances shall not be affected, and the provision so held to be invalid, unenforceable or
otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it
enforceable, valid and legal. The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning and not strictly for or against any of the
parties.



 









 





     17. Modification. This Agreement may be modified or waived only in accordance with
this Section 17. No waiver by any party of any breach by the other or any provision hereof shall
be deemed to be a waiver of any later or other breach thereof or as a waiver of any other provision
of this Agreement. This Agreement and its terms may not be waived, changed, discharged or
terminated orally or by any course of dealing between or among the parties, but only by a written
instrument signed by the party against whom any waiver, change, discharge or termination is sought.
No modification or waiver by the Company is effective without written consent of the Board of
Directors of the Company.



     18. Survival of Obligations and Rights. Notwithstanding anything to the contrary in
this Agreement, provisions herein shall survive the termination of Executive’s employment by the
Company prior to a Change in Control, or due to an Involuntary Termination Upon a Change in Control
or a Resignation for Good Reason Upon a Change in Control or, other expiration or termination of
this Agreement, if so provided herein or if necessary or desirable to fully accomplish the purposes
of such provisions, including the obligations and rights contained in Sections 4 through 19 hereof.



     19. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument. PDF and facsimile signature pages shall have the same legal effect as originals.



     20. Section Headings. The descriptive section headings herein have been inserted for
convenience only and shall not be deemed to define, limit, or otherwise affect the construction of
any provision hereof.