by at least a majority of the directors who were Continuing Directors at the time of suchnomination or election; provided, however, that there shall be excluded from thisclause (ii) any individual whose initial assumption of office occurred as a result of an actual orthreatened election contest with respect to the election or removal of directors or other actual orthreatened solicitation of proxies or consents, by or on behalf of a person other than the Board;or               (C) the consummation of a merger, consolidation, reorganization, recapitalization or statutoryshare exchange involving the Company or a sale or other disposition of all or substantially all ofthe assets of the Company in one or a series of related transactions (a “Business Combination”),other than a Business Combination in which all or substantially all of the individuals and entitieswho were the beneficial owners of the Outstanding Company Common Stock and Outstanding CompanyVoting Securities immediately prior to such Business Combination beneficially own, directly orindirectly, immediately following such Business Combination, more than 50% of the then-outstandingshares of common stock and the combined voting power of the then-outstanding securities entitled tovote generally in the election of directors, respectively, of the resulting or acquiringcorporation in such Business Combination (which shall include, without limitation, a corporationwhich as a result of such transaction owns the Company or substantially all of the Company’s assetseither directly or through one or more subsidiaries) in substantially the same proportions as theirownership, immediately prior to such Business Combination, of the Outstanding Company Common Stockand Outstanding Company Voting Securities, respectively.          (b) “Change in Control Date” means the first date during the Term (as defined inSection 2) on which a Change in Control occurs.          (c) “Cause” means:               (A) the Executive’s failure to perform his reasonable assigned duties to the standardsreasonably required by the Company (other than any such failure resulting from incapacity due tophysical or mental illness), which failure is not cured within 30 days after a written notice isreceived by the Executive from the Company describing in reasonable detail the manner in which theBoard of Directors believes the Executive has not performed the Executive’s duties to the standardsreasonably required by the Company; or               (B) the Executive’s willful engagement in illegal conduct or gross misconduct that ismaterially injurious to the Company. For purposes of this Section 1.3(b), no act or failure to actby the Executive shall be considered “willful” unless it is done intentionally and withoutreasonable belief that the Executive’s action was in the best interests of the Company.          (d) “Good Reason” means the occurrence, without the Executive’s written consent, ofany of the following events or circumstances:               (A) a material diminution in the Executive’s base compensation; or               (B) a material diminution in the Executive’s authority, duties, or responsibilities; or               (C) a material change in the geographic location at which the Executive must perform hisduties; or
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               (D) any other action or inaction of the Company which constitutes a material breach by theCompany of this Agreement.     Any termination by the Executive for Good Reason shall be communicated by means of a writtennotice delivered by the Executive to the Company within 90 days of the initial existence of theoccurrence or condition on which the Executive bases his claim for Good Reason. If the conditionis capable of being corrected, the Company shall have 30 days during which it may remedy thecondition (the “Cure Period”). Notwithstanding the occurrence of any such event or circumstance,such occurrence shall not be deemed to constitute Good Reason if such event or circumstance hasbeen fully corrected within the Cure Period and the Executive has been reasonably compensated forany losses or damages resulting therefrom. If the condition is not corrected, the Executive mustleave employment within one (1) year after the Company fails to cure the condition giving rise tothe Executive’s claim for Good Reason during the Cure Period.          (e) “Disability” means the Executive’s absence from the full-time performance of theExecutive’s duties with the Company for 180 consecutive calendar days as a result of incapacity dueto mental or physical illness which is determined to be total and permanent by a physician selectedby the Company or its insurers and acceptable to the Executive or the Executive’s legalrepresentative.          (f) “Severance Period” shall mean the period of 12 months immediately following theDate of Termination (as defined in Section 3.2(a) below).     **2. **Term of Agreement. This Agreement, and all rights and obligations of the partieshereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of(a) the expiration of the Term (as defined below) if neither a termination of employment covered bySection 4.1(a) below nor a Change in Control occurred during the Term, or (b) the fulfillment bythe Company of all of its obligations under Section 4 following a termination of the Executive’semployment with the Company. “Term” shall mean the period commencing as of the Effective Date andcontinuing in effect through March 31, 2011; provided, however, that commencing on April 1,2011 and each April 1 thereafter (each hereinafter referred to as a “Renewal Date”), the Term shallbe automatically extended for one additional year so as to terminate one year from such RenewalDate, unless at least 90 days prior to such Renewal Date, the Company shall have given theExecutive written notice that the Term will not be extended.     **3. **Employment Status; Termination Following Change in Control.          (a) Not an Employment Contract. The Executive acknowledges that this Agreement doesnot constitute a contract of employment or impose on the Company any obligation to retain theExecutive as an employee and that this Agreement does not prevent the Company or the Executive fromterminating his employment at any time, before or after a Change in Control.          (b) Termination of Employment.               (A)Any termination of the Executive’s employment by the Company at any time during the Termor at any time after the Change in Control Date, or by the Executive within 12 months following theChange in Control Date (other than due to the death of the Executive) shall be communicated by awritten notice to the other party hereto (the “Notice of Termination”), given in accordance withSection 6.2. Any Notice of Termination shall: (i) indicate (in the case of a termination by theCompany) whether such termination is for Cause and (in the case of a termination by the
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Executive within 12 months following the Change in Control Date) whether such termination isfor Good Reason, (ii) to the extent applicable, set forth in reasonable detail the facts andcircumstances claimed to provide a basis for termination of the Executive’s employment for Cause orfor Good Reason and (iii) specify the Date of Termination (as defined below). The effective dateof an employment termination (the “Date of Termination”) shall be the close of business on the datespecified in the Notice of Termination (which date may not be less than 15 days or more than 120days after the date of delivery of such Notice of Termination), in the case of a termination otherthan one due to the Executive’s death, or the date of the Executive’s death, as the case may be.               (B) The failure by the Executive or the Company to set forth in the Notice of Termination anyfact or circumstance which contributes to a showing of Good Reason or Cause shall not waive anyright of the Executive or the Company, respectively, hereunder or preclude the Executive or theCompany, respectively, from asserting any such fact or circumstance in enforcing the Executive’s orthe Company’s rights hereunder.               (C) Any Notice of Termination for Cause given by the Company must be given within 90 days ofthe occurrence of the event(s) or circumstance(s) that constitute(s) Cause.               (D) Any Notice of Termination for Good Reason given by the Executive must be given within 90days of the occurrence of the event(s) or circumstance(s) that constitute(s) Good Reason.     **4. **Benefits to Executive.          (a) Termination Prior to Change in Control Date.               (A) Termination Without Cause. If, prior to a Change in Control Date (including asituation in which a Change in Control Date never occurs), the Company terminates the Executive’semployment other than for Cause, Disability or death, then the Executive shall be entitled to thefollowing benefits, the distribution of which shall be subject to the provisions of Sections 4.4and 4.7:                    the Company shall pay to the Executive, in a lump sum in cash on the Date of Termination, thesum of the following amounts: (1) the Executive’s base salary through the Date of Termination, (2)any compensation previously deferred by the Executive (together with any accrued interest orearnings thereon) and (3) any accrued vacation pay, in each case to the extent not previously paid(the sum of the amounts described in clauses (1) through (3) shall be hereinafter referred to asthe “Accrued Obligations”);                    during the Severance Period, the Company shall continue to pay to the Executive, in accordancewith the Company’s regular payroll practices, the Executive’s highest annual base salary during thetwo-year period prior to the Date of Termination; and                    during the Severance Period, the Company shall continue to provide to the Executive and theExecutive’s family those benefits which would have been provided to them if the Executive’semployment had not been terminated, in accordance with the applicable Benefit Plans in effect onthe Date of Termination (to the extent such benefits can be provided to non-employees, or to theextent such health insurance benefits cannot be provided to non-employees, then the cash equivalentthereof, based on the cost thereof to the Company, which cash amount shall be paid proportionatelyover
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the Severance Period, monthly in advance); provided, however: (1) that if theExecutive becomes reemployed with another employer and is eligible to receive a particular type ofbenefits (e.g., health insurance benefits) from such employer on terms at least as favorable to theExecutive and his family as those being provided by the Company, then the Company shall no longerbe required to provide those particular benefits to the Executive and his family; and (2) to theextent that such payments are taxable to the Executive and/or extend beyond the COBRA continuationperiod, then such payments shall be made monthly in advance.               (B) Other Terminations. If, prior to the Change in Control Date, the Executive’semployment with the Company is terminated other than under the circumstances described in Section4.1(a), then the Company shall (i) pay the Executive (or his estate, if applicable), in a lump sumin cash on the Date of Termination, the Accrued Obligations and (ii) to the extent not previouslypaid or provided, timely pay or provide to the Executive any other amounts or benefits required tobe paid or provided or which the Executive is eligible to receive following the Executive’stermination of employment under any plan, program, policy, practice, contract or agreement of theCompany and its subsidiaries (such other amounts and benefits shall be hereinafter referred to asthe “Other Benefits”), the distribution of which shall be subject to the provisions of Section 4.7.          (b) Termination Following Change in Control Date.               (A) Termination within 12 Months Following Change in Control Date. If the Companyterminates the Executive’s employment other than for Cause, Disability or death within 12 monthsfollowing the Change in Control Date, or if the Executive terminates his employment for Good Reasonwithin 12 months following the Change in Control Date, then the Executive shall be entitled to thefollowing benefits, the distribution of which shall be subject to the provisions of Sections 4.4and 4.7:                    the Company shall pay to the Executive, in a lump sum in cash on the Date of Termination, (A)the Accrued Obligations and (B) the product of (x) the annual target bonus payable to the Executivefor the fiscal year in which the Date of Termination occurs and (y) a fraction, the numerator ofwhich is the number of days in the then-current fiscal year through the Date of Termination, andthe denominator of which is 365, less any portion of such bonus previously paid to the Executive;                    during the Severance Period, the Company shall continue to pay to the Executive, in accordancewith the Company’s regular payroll practices, the Executive’s highest annual base salary during thetwo-year period prior to the Date of Termination; and                    during the Severance Period, the Company shall continue to provide to the Executive and theExecutive’s family those benefits which would have been provided to them if the Executive’semployment had not been terminated, in accordance with the applicable Benefit Plans in effect onthe Date of Termination (to the extent such benefits can be provided to non-employees, or to theextent such health benefits cannot be provided to non-employees, then the cash equivalent thereof,based on the cost thereof to the Company, which cash amount shall be paid proportionately over theSeverance Period, monthly in advance); provided, however: (1) that if the Executive becomesreemployed with another employer and is eligible to receive a particular type of benefits (e.g.,health insurance benefits) from such employer on terms at least as favorable to the Executive andhis family as those being provided by the Company, then the Company shall no longer be required toprovide those particular benefits to the Executive and his family; and (2) to the extent that suchpayments are taxable
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to the Executive and/or extend beyond the COBRA continuation period, then such payments shallbe made monthly in advance.               (B) Termination More Than 12 Months Following Change in Control Date. If the Companyterminates the Executive’s employment other than for Cause, Disability or death more than 12 monthsfollowing the Change in Control Date, then the Executive shall be entitled to the followingbenefits, the distribution of which shall be subject to the provisions of Sections 4.4 and 4.7:                    the Company shall pay to the Executive, in a lump sum in cash on the Date of Termination, theAccrued Obligations;                    during the Severance Period, the Company shall continue to pay to the Executive, in accordancewith the Company’s regular payroll practices, the Executive’s highest annual base salary during thetwo-year period prior to the Date of Termination; and                    during the Severance Period, the Company shall continue to provide to the Executive and theExecutive’s family those benefits which would have been provided to them if the Executive’semployment had not been terminated, in accordance with the applicable Benefit Plans in effect onthe Date of Termination (to the extent such health benefits can be provided to non-employees, or tothe extent such benefits cannot be provided to non-employees, then the cash equivalent thereof,based on the cost thereof to the Company, which cash amount shall be paid proportionately over theSeverance Period, monthly in advance); provided, however: (1) that if the Executive becomesreemployed with another employer and is eligible to receive a particular type of benefits (e.g.,health insurance benefits) from such employer on terms at least as favorable to the Executive andhis family as those being provided by the Company, then the Company shall no longer be required toprovide those particular benefits to the Executive and his family; and (2) to the extent that suchpayments are taxable to the Executive and/or extend beyond the COBRA continuation period, then suchpayments shall be made monthly in advance.               (C) Other Terminations. If, following the Change in Control Date, the Executive’semployment with the Company is terminated other than under the circumstances described in Section4.2(a) or Section 4.2(b), then the Company shall (i) pay the Executive (or his estate, ifapplicable), in a lump sum in cash on the Date of Termination, the Accrued Obligations and (ii) tothe extent not previously paid or provided, timely pay or provide to the Executive the OtherBenefits, the distribution of which shall be subject to the provisions of Section 4.7.               (D) Expenses. Subject to Section 4.7, the Company agrees to reimburse the Executivefor all legal and other fees and expenses that the Executive reasonably incurs as a result of anyclaim or dispute regarding the benefits due to the Executive pursuant to this Section 4.2 if theExecutive prevails in such claim or dispute.          (c) Section 280G Provisions.               (A) Notwithstanding any other provision of this Agreement, in the event that the Companyundergoes a Change in Ownership or Control (as defined below), the Company shall not be obligatedto provide to the Executive a portion of any Contingent Compensation Payments (as defined below)that the Executive would otherwise be entitled to receive to the extent necessary to eliminateExcess Parachute Payments (as defined below) for the Executive, except as set forth in Section4.3(b). For purposes of this Section 4.3, the Contingent Compensation Payments so eliminated shallbe
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referred to as the “Eliminated Payments” and the aggregate amount (determined in accordancewith Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the ContingentCompensation Payments so eliminated shall be referred to as the “Eliminated Amount.”               (B) Notwithstanding the provisions of Section 4.3(a), no such reduction in ContingentCompensation Payments shall be made if (i) the Eliminated Amount (computed without regard to thissentence) exceeds (ii) 110% of the aggregate present value (determined in accordance with TreasuryRegulation Section 1.280G-1, Q/A-31, Q/A-32, Q/A-33 or any successor provisions) of the amount ofany additional taxes that would be incurred by the Executive if the Eliminated Payments (determinedwithout regard to this sentence) were paid to him (including, state and federal income taxes on theEliminated Payments, the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,as amended (the “Code”, which term shall include applicable Treasury Regulations), payable withrespect to all of the Contingent Compensation Payments in excess of the Executive’s “base amount”(as defined in Section 280G(b)(3) of the Code), and any withholding taxes). The override of suchreduction in Contingent Compensation Payments pursuant to this Section 4.3(b) shall be referred toas a “Section 4.3(b) Override.” For purposes of this paragraph, if any federal, state or localincome taxes would be attributable to the receipt of any Eliminated Payment, the amount of suchtaxes shall be computed by multiplying the amount of the Eliminated Payment by the maximum combinedfederal, state and local income tax rate provided by law.               (C) For purposes of this Section 4.3 the following terms shall have the following respectivemeanings:                    “Change in Ownership or Control” shall mean a change in the ownership or effective control ofthe Company or in the ownership of a substantial portion of the assets of the Company determined inaccordance with Section 280G(b)(2) of the Code.                    “Contingent Compensation Payment” shall mean any payment (or benefit) in the nature ofcompensation that is made or made available (under this Agreement or otherwise) to a “disqualifiedindividual” (as defined in Section 280G(c) of the Code) and that is contingent (within the meaningof Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the Company.                    “Excess Parachute Payment” shall mean a payment described in Section 280G(b)(1) of the Code.               (D) Any payments or other benefits otherwise due to the Executive following a Change inOwnership or Control that could reasonably be characterized (as determined by the Company) asContingent Compensation Payments (the “Potential Payments”) shall not be made until the datesprovided for in this Section 4.3(d).                    In the event that the Company undergoes a Change in Ownership or Control, and the Executivebecomes entitled to receive Contingent Compensation Payments relating to such Change in Ownershipor Control, the Company shall (A) determine at such time or times as may be necessary to complywith the requirements under Section 280G of the Code whether such Contingent Compensation Paymentsconstitute in whole or in part Excess Parachute Payments and (B) in the event the Companydetermines that such Contingent Compensation Payments constitute in whole or in part ExcessParachute Payments, notify the Executive (within 30 days after each such determination and withreasonable detail regarding the basis for its determinations) of the following: (1) which Potential
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Payments constitute Contingent Compensation Payments, (2) the Eliminated Amount and (3)whether the Section 4.3(b) Override is applicable.                    Within 30 days after delivery of such notice to the Executive, the Executive shall deliver aresponse to the Company (the “Executive Response”) stating either (A) that he agrees with theCompany’s determination pursuant to the preceding sentence, or (B) that he disagrees with suchdetermination, in which case he shall set forth (1) which Potential Payments should becharacterized as Contingent Compensation Payments, (2) the Eliminated Amount, or (3) whether theSection 4.3(b) Override is applicable.                    If and to the extent that any Contingent Compensation Payments are required to be treated asEliminated Payments pursuant to this Section 4.3, then the Payments shall be reduced or eliminated,as determined by the Company, in the following order: (A) any cash payments, (B) any taxablebenefits, (C) any nontaxable benefits, and (D) any vesting of equity awards, in each case inreverse order beginning with payments or benefits that are to be paid the farthest in time from thedate that triggers the applicability of the excise tax, to the extent necessary to maximize theEliminated Payments.                    If the Executive fails to deliver an Executive Response on or before the required date, theCompany’s initial determinations shall be final, and the Company shall make the Potential Payments(other than the Eliminated Payments) to the Executive within 10 business days following the duedate for delivery to the Company of the Executive Response (except for any Potential Payments whichare not due to be made until after such date, which Potential Payments shall be made on the date onwhich they are due).                    If the Executive states in the Executive Response that he agrees with the Company’sdeterminations, the Company’s initial determinations shall be final, the Contingent CompensationPayments that shall be treated as Eliminated Payments shall be as set forth in the ExecutiveResponse, and the Company shall make the Potential Payments (other than the Eliminated Payments) tothe Executive within 10 business days following delivery to the Company of the Executive Response(except for any Potential Payments which are not due to be made until after such date, whichPotential Payments shall be made on the date on which they are due).                    If the Executive states in the Executive Response that he disagrees with the Company’sdeterminations, then, for a period of 60 days following delivery of the Executive Response, theExecutive and the Company shall use good faith efforts to resolve such dispute. If such dispute isnot resolved within such 60-day period, such dispute shall be settled exclusively by arbitration inBoston, Massachusetts, in accordance with the rules of the American Arbitration Association then ineffect. Judgment may be entered on the arbitrator’s award in any court having jurisdiction. TheCompany shall, within 10 business days following delivery to the Company of the Executive Response,make to the Executive those Potential Payments as to which there is no dispute between the Companyand the Executive regarding whether they should be made (except for any such Potential Paymentswhich are not due to be made until after such date, which Potential Payments shall be made on thedate on which they are due). The balance of the Potential Payments (other than EliminatedPayments) shall be made within 10 business days following the resolution of such dispute.                    Subject to the limitations contained in Sections 4.3(a) and (b) hereof, the amount of anypayments to be made to the Executive following the resolution of such dispute shall be
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increased by amount of the accrued interest thereon computed at the prime rate announced fromtime to time by Bank of America, compounded monthly from the date that such payments originallywere due.                    In the event the Company is required to perform a redetermination in accordance with Treas.Reg. 1.280G-1 Q/A-33(b) with respect to any Contingent Compensation Payments, this Section 4.3(d)shall apply with respect to such redetermination and the parties shall make such adjustments as maybe necessary as a result of such redetermination including, if appropriate, the payment by theCompany of Contingent Compensation Payments previously treated as Eliminated Payments if theSection 4.3(b) Override applies as a result of such redetermination.               (E) The provisions of this Section 4.3 are intended to apply to any and all payments orbenefits available to the Executive under this Agreement or any other agreement or plan of theCompany under which the Executive receives Contingent Compensation Payments.          (d) Release. The obligation of the Company to make the payments and provide thebenefits to the Executive under Section 4.1(a), Section 4.2(a) or Section 4.2(b) is conditionedupon the Executive signing a release of claims in the form attached hereto as Exhibit A, orsuch other form as may be agreed to by the Company and the Executive (the “Employee Release”),within 21 days (the “Release Period”) following the Date of Termination and upon the Executive notrevoking the Employee Release in a timely manner thereafter. Provided that the Employee Releasehas become binding, the payments to the Executive under Section 4.1(a), Section 4.2(a) or Section4.2(b) shall be payable or shall commence on the 30th day following the Date ofTermination. Notwithstanding the foregoing, the provisions of benefits under Section 4.1(a)(iii),Section 4.2(a)(iii) or Section 4.2(b)(iii) shall continue during the Release Period and anyapplicable revocation period.          (e) Exclusive Severance Benefits. The making of the payments and the provision of thebenefits by the Company to the Executive under Section 4.1(a), Section 4.2(a) or Section 4.2(b)shall constitute the entire obligation of the Company to the Executive as a result of thetermination of his employment under the circumstances set forth in such Sections, and the Executiveshall not be entitled to additional payments or benefits under any other plan, program, policy,practice, contract or agreement of the Company or its subsidiaries.          (f) Mitigation. The Executive shall not be required to mitigate the amount of anypayment or benefits provided for in Section 4.1(a), Section 4.2(a) or Section 4.2(b) by seekingother employment or otherwise. Further, except as provided in Section 4.1(a)(iii), Section4.2(a)(iii) or Section 4.2(b)(iii), the amount of any payment or benefits provided for in Section4.1(a), Section 4.2(a) or Section 4.2(b) shall not be reduced by any compensation earned orbenefits received by the Executive as a result of employment by another employer.          (g) Section 409A. Subject to this Section 4.7, any severance payments or benefitsunder this Agreement shall begin only upon the date of the Executive’s “separation from service”(as determined below), which occurs on or after the date of the Executive’s termination. Thefollowing rules shall apply with respect to distribution of the payments and benefits, if any, tobe provided to the Executive under Sections 4.1 or 4.2, as applicable:               (A) It is intended that each installment of the payments and benefits provided under Sections4.1 and 4.2 shall be treated as a separate “payment” for purposes of Section 409A of the U.S.Internal Revenue Code of 1986, as amended, and the guidance issued thereunder (“Section 409A”).
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Neither the Company nor the Executive shall have the right to accelerate or defer the deliveryof any such payments or benefits except to the extent specifically permitted or required by Section409A;               (B) If, as of the date of the “separation from service” of the Executive from the Company(within the meaning of Section 4.7(d) below), the Executive is not a “specified employee” (withinthe meaning of Section 409A), then each installment of the payments and benefits shall be made onthe dates and terms set forth in Sections 4.1 or 4.2, as applicable; and               (C) If, as of the date of the separation from service of the Executive from the Company, theExecutive is a specified employee, then:                    Each installment of the payments and benefits due under Sections 4.1 or 4.2 that, inaccordance with the dates and terms set forth herein, will in all circumstances, regardless of whenthe separation from service occurs, be paid within the short-term deferral period (as defined underSection 409A) shall be treated as a short-term deferral within the meaning of Treasury RegulationSection 1.409A-1(b)(4) to the maximum extent permissible under Section 409A; and                    Each installment of the payments and benefits due under Sections 4.1 or 4.2 that is notdescribed in Section 4.7(c)(i), above, and that would, absent this subsection, be paid within thesix-month period following the separation from service of the Executive from the Company shall notbe paid until the date that is six months and one day after such separation from service (or, ifearlier, the Executive’s death), with any such installments that are required to be delayed beingaccumulated during the six-month period and paid in a lump sum on the date that is six months andone day following the Executive’s separation from service and any subsequent installments, if any,being paid in accordance with the dates and terms set forth herein; provided,however, that the preceding provisions of this sentence shall not apply to any installmentof payments and benefits if and to the maximum extent that that such installment is deemed to bepaid under a separation pay plan that does not provide for a deferral of compensation by reason ofthe application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay upon aninvoluntary separation from service). Any installments that qualify for the exception underTreasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of theExecutive’s second taxable year following his taxable year in which the separation from serviceoccurs.               (D) The determination of whether and when a separation from service from the Company hasoccurred shall be made and in a manner consistent with and based on the presumptions set forth in,Treasury Regulation Section 1.409A-1(h). Solely for purposes of this Section 4.7(d), “Company”shall include all persons with whom the Company would be considered a single employer as determinedunder Treasury Regulation Section 1.409A-1(h)(3).               (E) All reimbursements and in-kind benefits provided under the Agreement shall be made orprovided in accordance with the requirements of Section 409A to the extent that such reimbursementsor in-kind benefits are subject to Section 409A, including, where applicable, the requirement that(i) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorterperiod of time specified in this Agreement), (ii) the amount of expenses eligible for reimbursementduring a calendar year may not affect the expenses eligible for reimbursement in any other calendaryear, (iii) the reimbursement of an eligible expense will be made on or before the last day of thecalendar year following the year in which the expense is incurred and (iv) the right toreimbursement is not subject to set off or liquidation or exchange for any other benefit.
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               (F) The Company makes no representation or warranty and shall have no liability to theExecutive or any other person if any provisions of this Agreement are determined to constitutedeferred compensation subject to Section 409A and do not satisfy an exemption from, or theconditions of, Section 409A.     **5. **Settlement of Disputes; Arbitration. All claims by the Executive for benefitsunder this Agreement shall be directed to the Board and shall be in writing. Any denial by theBoard of a claim for benefits under this Agreement shall be delivered to the Executive in writingand shall set forth the reasons for the denial and the provisions of this Agreement relied upon.Any further dispute or controversy arising under or in connection with this Agreement shall besettled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of theAmerican Arbitration Association then in effect. Judgment may be entered on the arbitrator’s awardin any court having jurisdiction.     **6. **Miscellaneous.          (a) Successors. This Agreement shall be binding upon the Company and its successorsand assigns. This Agreement shall inure to the benefit of and be enforceable by the Executive’spersonal or legal representatives, executors, administrators, successors, heirs, distributees,devisees and legatees. If the Executive should die while any amount would still be payable to theExecutive or his family hereunder if the Executive had continued to live, all such amounts, unlessotherwise provided herein, shall be paid in accordance with the terms of this Agreement to theexecutors, personal representatives or administrators of the Executive’s estate.          (b) Notice. All notices, instructions and other communications given hereunder or inconnection herewith shall be in writing. Any such notice, instruction or communication shall besent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii)prepaid via a reputable nationwide overnight courier service, in each case addressed to theCompany, at 64 Jackson Road, Devens, Massachusetts 01434, and to the Executive at the Executive’saddress indicated on the signature page of this Agreement (or to such other address as either theCompany or the Executive may have furnished to the other in writing in accordance herewith). Anysuch notice, instruction or communication shall be deemed to have been delivered five business daysafter it is sent by registered or certified mail, return receipt requested, postage prepaid, or onebusiness day after it is sent via a reputable nationwide overnight courier service. Either partymay give any notice, instruction or other communication hereunder using any other means, but nosuch notice, instruction or other communication shall be deemed to have been duly delivered unlessand until it actually is received by the party for whom it is intended.          (c) Employment by Subsidiary. For purposes of this Agreement, the Executive’semployment with the Company shall not be deemed to have terminated solely as a result of theExecutive continuing to be employed by a wholly-owned subsidiary of the Company.          (d) Severability. The invalidity or unenforceability of any provision of thisAgreement shall not affect the validity or enforceability of any other provision of this Agreement,which shall remain in full force and effect.          (e) Governing Law. The validity, interpretation, construction and performance of thisAgreement shall be governed by the internal laws of the Commonwealth of Massachusetts, withoutregard to conflicts of law principles.
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          (f) Waivers. No waiver by the Executive at any time of any breach of, or compliancewith, any provision of this Agreement to be performed by the Company shall be deemed a waiver ofthat or any other provision at any subsequent time.          (g) Counterparts. This Agreement may be executed in counterparts, each of which shallbe deemed to be an original but both of which together shall constitute one and the sameinstrument.          (h) Tax Withholding. Any payments provided for hereunder shall be paid net of anyapplicable tax withholding required under federal, state or local law.          (i) Entire Agreement. This Agreement sets forth the entire agreement of the partieshereto in respect of the subject matter contained herein and supersedes all prior agreements,promises, covenants, arrangements, communications, representations or warranties, whether oral orwritten, by any officer, employee or representative of any party hereto in respect of the subjectmatter contained herein; and any prior agreement of the parties hereto in respect of the subjectmatter contained herein is hereby terminated and cancelled. Notwithstanding the foregoing, theprovisions of any stock option agreements between the Company and the Executive (including anyterms thereof relating to acceleration of vesting) shall not be superseded by or modified by theterms of this Agreement.          (j) Amendments. This Agreement may be amended or modified only by a writteninstrument executed by both the Company and the Executive.          (k) Executive’s Acknowledgements. The Executive acknowledges that he: (a) has readthis Agreement; (b) has been represented in the preparation, negotiation, and execution of thisAgreement by legal counsel of the Executive’s own choice or has voluntarily declined to seek suchcounsel; (c) understands the terms and consequences of this Agreement; and (d) understands that thelaw firm of Wilmer Cutler Pickering Hale and Dorr LLP is acting as counsel to the Company inconnection with the transactions contemplated by this Agreement, and is not acting as counsel forthe Executive.
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     IN WITNESS WHEREOF, the parties hereto have executed this Executive Severance Agreement as ofthe day and year first set forth above.      AMERICAN SUPERCONDUCTOR CORPORATION