Exhibit
10.18






 





 


880 Winter Street


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:

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  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 upon 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:


 


(i)     The
substantial reduction of (1) Executive’s aggregate base salary, (2) Executive’s
Incentive Pay Eligibility, or (3) 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 (3) 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;


 


(ii)    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; or


 


(iii)   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 14 hereof; 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 Termination Date (subject to the expiration of any applicable
revocation period required by law and the provisions of Section 21); and


 


 


 


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(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 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 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.


 


 


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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 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 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 


 


 


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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.


 


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.  Notwithstanding anything in this Agreement to
the contrary, any payment dates will be delayed until after the separation
agreement referred to in clause (a) above is executed by Executive, and
any applicable revocation periods required by law have expired.


 


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


 


 


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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”).


 


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.  Notwithstanding
anything herein to the contrary, if at the time of Executive’s termination of
employment with the Company, Executive is a “specified employee” as defined in Section 409A
of the Code and the regulations promulgated thereunder, and the Company
notifies Executive that, based on the advice of counsel, the deferral of the
commencement of any Severance Benefits payable under Section 4(a) or
Cash Severance Benefits payable under Section 5(a) is necessary in
order to comply with Section 409A of the Code, then the Company will defer
the commencement of the Severance Benefits or Cash Severance Benefits, as the
case may be, (without any reduction) by a period of at least six months after
Executive’s termination of employment. 
Any Severance Benefits or Cash Severance Benefits that would have been
paid during such six-month period but for the provisions of the preceding
sentence shall be paid in a lump sum to Executive within the first five (5) days
of the seventh month following Executive’s termination of employment.  The provisions of this Section 21 shall
apply only to the extent required to avoid Executive’s incurrence of any
accelerated or additional tax under Section 409A of the Code.


 


 


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