PROVIDED FOR IN THIS SECTION 4
SHALL NOT BE REDUCED BY ANY COMPENSATION EARNED BY THE EMPLOYEE AS A RESULT OF
EMPLOYMENT BY ANOTHER EMPLOYER, BY RETIREMENT BENEFITS, BY OFFSET AGAINST ANY
AMOUNT CLAIMED TO BE OWED BY THE EMPLOYEE TO THE COMPANY OR OTHERWISE.
4.4
SECTION 409A OF THE CODE.
TO THE EXTENT THAT ANY AMOUNT TO BE
PAID OR PROVIDED TO EMPLOYEE IN CONNECTION WITH A SEPARATION FROM SERVICE
PURSUANT TO THIS AGREEMENT IS SUBJECT TO SECTION 409A OF THE CODE AND AT THE
TIME OF THE SEPARATION FROM SERVICE THE EMPLOYEE IS CONSIDERED A SPECIFIED
EMPLOYEE WITHIN THE MEANING OF SECTION 409A OF THE CODE, THEN SUCH PAYMENT SHALL
NOT BE MADE UNTIL THE DATE (THE "PAYMENT DATE") THAT IS 6 MONTHS AND 1 DAY AFTER
7
SUCH SEPARATION FROM SERVICE (THE "SIX MONTH PERIOD").
ALL AMOUNTS WHICH WOULD
HAVE BEEN PAID DURING SUCH SIX MONTH PERIOD WILL BE PAID IN A LUMP SUM ON SUCH
PAYMENT DATE.
5.
SUCCESSORS.
5.1
SUCCESSOR TO COMPANY.
THE COMPANY SHALL REQUIRE ANY SUCCESSOR
(WHETHER DIRECT OR INDIRECT, BY PURCHASE, MERGER, CONSOLIDATION OR OTHERWISE) TO
ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE COMPANY EXPRESSLY TO
ASSUME AND AGREE TO PERFORM THIS AGREEMENT TO THE SAME EXTENT THAT THE COMPANY
WOULD BE REQUIRED TO PERFORM IT IF NO SUCH SUCCESSION HAD TAKEN PLACE.
FAILURE
OF THE COMPANY TO OBTAIN AN ASSUMPTION OF THIS AGREEMENT AT OR PRIOR TO THE
EFFECTIVENESS OF ANY SUCCESSION SHALL CONSTITUTE GOOD REASON IF THE EMPLOYEE
ELECTS TO TERMINATE EMPLOYMENT, EXCEPT THAT FOR PURPOSES OF IMPLEMENTING THE
FOREGOING, THE DATE ON WHICH ANY SUCH SUCCESSION BECOMES EFFECTIVE SHALL BE
DEEMED THE DATE OF TERMINATION.
AS USED IN THIS AGREEMENT, "COMPANY" SHALL MEAN
THE COMPANY AS DEFINED ABOVE AND ANY SUCCESSOR TO ITS BUSINESS OR ASSETS AS
AFORESAID WHICH ASSUMES AND AGREES TO PERFORM THIS AGREEMENT, BY OPERATION OF
LAW OR OTHERWISE.
5.2
SUCCESSOR TO EMPLOYEE.
THIS AGREEMENT SHALL INURE TO THE BENEFIT
OF AND BE ENFORCEABLE BY THE EMPLOYEE'S PERSONAL OR LEGAL REPRESENTATIVES,
EXECUTORS, ADMINISTRATORS, SUCCESSORS, HEIRS, DISTRIBUTEES, DEVISEES AND
LEGATEES.
IF THE EMPLOYEE SHOULD DIE WHILE ANY AMOUNT WOULD STILL BE PAYABLE TO
THE EMPLOYEE OR HIS FAMILY HEREUNDER IF THE EMPLOYEE HAD CONTINUED TO LIVE, ALL
SUCH AMOUNTS, UNLESS OTHERWISE PROVIDED HEREIN, SHALL BE PAID IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT TO THE EXECUTORS, PERSONAL REPRESENTATIVES OR
ADMINISTRATORS OF THE EMPLOYEE'S ESTATE.
6.
NOTICE.
ALL NOTICES, INSTRUCTIONS AND OTHER COMMUNICATIONS GIVEN
HEREUNDER OR IN CONNECTION HEREWITH SHALL BE IN WRITING.
ANY SUCH NOTICE,
INSTRUCTION OR COMMUNICATION SHALL BE SENT 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 THE COMPANY, AT
125 SPRING STREET, LEXINGTON, MA 02421-7801, ATTENTION:
SECRETARY, WITH A COPY
TO STEVEN D. SINGER, ESQ., WILMER CUTLER PICKERING HALE AND DORR LLP, 60 STATE
STREET, BOSTON, MA 02109, AND TO THE EMPLOYEE AT THE EMPLOYEE'S ADDRESS
INDICATED ON THE