Exhibit 10.17


 


	
   

   

  77 Fourth Avenue

  Waltham, MA 02451, U.S.A.

  Tel. (781) 890-7878

  Fax. (781) 890-4848

  



 


This Executive Agreement (the “Agreement”), by and among Phase
Forward Incorporated, a Delaware corporation (the “Company”), and the executive
name 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”).


 


	
  PHASE FORWARD INCORPORATED 

  	
  EXECUTIVE

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address:

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 


WHEREAS,
Executive currently is an employee of the Company and an Officer (as
hereinafter defined), and has made and is expected to continue 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 in Executive’s employment as an Officer of the Company adversely
affects 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 recognizes
that the uncertainty regarding the consequences of such an event adversely
affects 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, and desires to induce Executive
to remain employed with the Company by establishing certain benefits for
Executive applicable under certain circumstances in the event of a Change in
Control, and Executive desires to be so induced; and


 


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;


 


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


 


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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 in accordance
with 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, 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 willful failure or refusal (except due to
Disability (as hereinafter defined) or a condition reasonably likely to be
deemed a Disability with the passage of time) to perform substantially his/her
duties on behalf of the Company for a period of thirty (30) days after
receiving written notice identifying in reasonable detail the nature of such
failure or refusal; (ii) Executive’s conviction of, entry of a plea of
guilty or nolo contendere to, or admission of
guilt in connection with a felony; (iii) disloyalty, willful misconduct or
breach of fiduciary duty by Executive which causes material harm to the
Company; or (iv) Executive’s willful violation of any confidentiality,
developments or non-competition agreement which causes material harm to the
Company.  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, together with counsel of his
choice, 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:


 


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(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 Phase Forward Incorporated, 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


 


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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; provided, however that Incentive Pay Eligibility shall
exclude any commission or bonus calculated on the basis of sales or bookings
that Executive is eligible to received under the Company’s 2004 Global Sales
Incentive Compensation Plan or any successor plan thereto (“Sales Plan”), but
will include any bonus calculated on the basis of (i) corporate objectives
applicable to all executives of the Company (if specified in the Sales Plan)
and (ii) any quarterly bonus calculated on the basis of quarterly quota
achievement specified in the Sales Plan, assuming achievement of the greater of
(x) 100% of the quarterly quota or (y) the actual percentage of the
quarterly quota achieved prior to the Termination Date.


 


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 30 days after the receipt by the Company of
Executive’s notice specified below, if any of the following “Events” occur
without Executive’s prior written consent during the one-year period beginning
on the effective date of a Change in Control and if the Company has not cured
such Event within the 30 day period following the Executive’s notice:


 


(i)                                     The material diminution of Executive’s base
salary in effect immediately prior to a Change in Control;


 


(ii)                                  The permanent and material relocation of
Executive’s primary workplace, from Executive’s workplace in effect immediately
prior to a Change in Control; or


 


(iii)                               A material breach by the Company of this
Agreement; and


 


Within
sixty (60) days after 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.”


 


j.                                          “Severance Benefits” shall mean:


 


(i)                                     payment of an amount equal to 50% (i.e., six (6) months)
of the Executive’s base salary, at the highest annualized rate in effect during
the one year period immediately prior to the Termination Date payable in a lump
sum payment on the first business day that occurs 37 days after the Termination
Date (subject to the expiration of any applicable revocation period required by
law and the provisions of Section 21); 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, Executive’s monthly premium payments for
each such coverage elected by Executive for Executive and his or her eligible
dependents, if


 


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applicable, 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; and


 


(iii)                               At the sole discretion of the Company’s Chief
Executive Officer, (A) payment up to an amount determined by reference to
what an Executive’s Incentive Pay Eligibility for the periods preceding the
Termination Date could have been but for the Executive’s termination, and (B) payment
up to an amount determined by reference to the commission or bonus (calculated
on the basis of sales or bookings prior to the Termination Date) that the
Executive could have received under the Sales Plan but for the Executive’s
termination.


 


k.                                       “Stock Plans” shall mean the Phase
Forward Incorporated Amended and Restated 1997 Stock Option Plan, the Phase
Forward Incorporated 2004 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,
excluding the 2004 Employee Stock Purchase Plan and any other plan adopted by the Company
pursuant to Section 423 of the U.S. Internal Revenue Code of 1986, as
amended (the “Code”).


 


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 prior to a
Change in Control for any reason that does not constitute Cause, Executive
shall be entitled to receive the following, subject to Section 8 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 compensation and benefits, and unused
vacation accrued, through the Termination Date. 
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 practice or
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


 


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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 8 hereof:


 


(i)                                     Payment of an
amount equal to 100% (i.e., 12 months)
of the 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 50% 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 the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”), the Company will pay Executive’s monthly
premium payments for each such coverage elected by Executive for Executive and
his or her eligible dependents, if applicable, until the earliest of the
following dates to occur with respect to each such elected coverage:  (A) the first 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 three-month 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. Notwithstanding the
following, any extension of option exercise period shall be limited to the
extent determined by the Company to avoid any options being treated as
nonqualified deferred compensation subject to the provisions of Section 409A
of the Code. 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 a
lump sum payment on the first business day that occurs 37 days after the
Vesting Date (subject to the expiration of any applicable revocation period
required by law and the provisions of Section 21).


 


b.                                      Executive shall also be entitled to any
unpaid compensation and benefits, and unused vacation accrued, through the
Termination Date.  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


 


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documentation of such
expenses as required by the practice or 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.                                       Effect
of a Change in Control.  If a Change
in Control occurs during the Term, then 25% of all stock, options, awards and
purchase rights granted to Executive under the Phase Forward Incorporated 2004
Stock Option and Incentive Plan prior to such Change in Control shall
immediately become fully vested and exercisable as of the effective date of a
Change in Control.  The 25% specified in
the previous sentence is in addition to any stock, options, awards and purchase
rights granted to Executive under any plan that were already vested and
exercisable (or were otherwise scheduled to become vested and exercisable) as
of the effective date of the Change in Control.


 


7.                                       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.


 


8.                                       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 mutual release, in a form and of a scope reasonably
acceptable to the parties hereto; (b) returns all property, equipment,
confidential information and documentation of the Company; (c) has
complied and continues to comply in all material respects 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 8(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.  Executive must comply with the conditions set
forth in clauses (a), (b) and (d) above within 30 days of the
Termination Date.


 


9.                                       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.


 


10.                                 Certain
Reduction of Payments.  If (a)(i) the Severance
Benefits, (ii) the Change in Control Benefits, (iii) the benefits
received under Section 6 hereof and/or (iv) 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) 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


 


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Total Payments shall be reduced in the following
order: (1) cash payments not subject to 409A of the Code; (2) cash
payments subject to Section 409A of the Code; (3) equity-based
payments and acceleration; and (4) non-cash forms of benefits.  To the extent any such benefit is to be
provided over time, then the benefit 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 Section 4, 5 and 6 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, those 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.


 


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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 Chairman of the Board 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 20 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.


 


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.


 


21.                                 Section 409A.


 


(a)                Anything in this
Agreement to the contrary notwithstanding, if at the time of the Executive’s
separation from service within the meaning of Section 409A of the Code,
the Company determines that the Executive is a “specified employee” within the
meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent
any payment or benefit that the Executive becomes entitled to under this
Agreement on account of the Executive’s separation from service would be
considered deferred compensation subject to the 20 percent 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, such payment
shall not be payable and such benefit shall not be provided until the date that
is the earlier of (A) six months and one day after the Executive’s
separation from service, or (B) the Executive’s death.


 


(b)               The parties intend
that this Agreement will be administered in accordance with Section 409A
of the Code.  To the extent that any
provision of this Agreement is ambiguous as to its compliance with Section 409A
of the Code, the provision shall be read in such a manner so that all payments
hereunder comply with Section 409A of the Code.  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.


 


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(c)                The determination
of whether and when a separation from service has occurred shall be made in
accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).


 


(d)               The Company makes
no representation or warranty and shall have no liability to the Executive or
any other person if any provisions of this Agreement are determined to
constitute deferred compensation subject to Section 409A of the Code but
do not satisfy an exemption from, or the conditions of, such Section.


 


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