other Person who may have been employed by, or may have been a consultant
to, the Company during the term of Employee's employment) to terminate his or
her employment or relationship with the Company in order to become employed by
or otherwise perform services for any other Person or (ii) solicit, endeavor to
entice away from the Company or otherwise interfere with the relationship of the
Company with any Person who is, or was within the then-most recent 12 month
period, a client or customer of the Company.
10.
NOTICES.
ANY NOTICE DELIVERED UNDER THIS
AGREEMENT SHALL BE DEEMED DULY DELIVERED THREE (3) BUSINESS DAYS AFTER IT IS
SENT BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID,
OR ONE (1) BUSINESS DAY AFTER IT IS SENT FOR NEXT-BUSINESS DAY DELIVERY
SIGNATURE REQUIRED VIA A REPUTABLE NATIONWIDE OVERNIGHT COURIER SERVICE, IN EACH
CASE TO THE ADDRESS OF THE RECIPIENT SET FORTH IN THE INTRODUCTORY PARAGRAPH
HERETO.
EITHER PARTY MAY CHANGE THE ADDRESS TO WHICH NOTICES ARE TO BE
DELIVERED BY GIVING NOTICE OF SUCH CHANGE TO THE OTHER PARTY IN THE MANNER SET
FORTH IN THIS SECTION 10.
11.
TERMINATION OF EXECUTIVE RETENTION AGREEMENT
AND EMPLOYMENT AGREEMENT.
THE COMPANY AND THE EMPLOYEE HEREBY AGREE THAT, IN
CONSIDERATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (A) THE EXECUTIVE
RETENTION AGREEMENT DATED AS OF OCTOBER 29, 2007 BETWEEN THE COMPANY AND THE
EMPLOYEE (THE "EXECUTIVE RETENTION AGREEMENT") AND (B) THE EMPLOYMENT AGREEMENT
DATED AS OF APRIL 10, 2002, AS AMENDED MAY 18, 2007 (THE "PREVIOUS EMPLOYMENT
AGREEMENT") ARE HEREBY EXPRESSLY TERMINATED BY MUTUAL AGREEMENT AND NEITHER
PARTY HAS ANY FURTHER RIGHTS OR OBLIGATIONS THEREUNDER.
12.
ENTIRE AGREEMENT.
THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR
AGREEMENTS AND UNDERSTANDINGS (INCLUDING, WITHOUT LIMITATION, THE EXECUTIVE
RETENTION AGREEMENT AND THE PREVIOUS EMPLOYMENT AGREEMENT), WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
13.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED OR
MODIFIED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY BOTH THE COMPANY AND THE
EMPLOYEE.
14.
GOVERNING LAW.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS (WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
ANY ACTION, SUIT OR OTHER LEGAL PROCEEDING ARISING UNDER OR RELATING TO ANY
PROVISION OF THIS AGREEMENT SHALL BE COMMENCED ONLY IN A COURT OF THE
COMMONWEALTH OF MASSACHUSETTS (OR, IF APPROPRIATE, A FEDERAL COURT LOCATED
WITHIN THE COMMONWEALTH OF MASSACHUSETTS), AND THE COMPANY AND THE EMPLOYEE EACH
CONSENTS TO THE JURISDICTION OF SUCH A COURT.
THE COMPANY AND THE EMPLOYEE EACH
HEREBY IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR
OTHER LEGAL PROCEEDING ARISING UNDER OR RELATING TO ANY PROVISION OF THIS
AGREEMENT.
15.
SUCCESSORS AND ASSIGNS.
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 AS EXPRESSLY TO ASSUME AND AGREE TO PERFORM