AGENTS, WHICH ARE NOT EXPRESSED HEREIN, AND THAT NO OTHER
AGREEMENT SHALL BE VALID OR BINDING ON SOFTBRANDS.
6.4
AMENDMENTS AND MODIFICATIONS.
THIS TRANSITION AGREEMENT MAY BE
AMENDED OR MODIFIED ONLY BY A WRITING SIGNED BY BOTH PARTIES HERETO.
6.5
WITHHOLDING TAXES.
ALL AMOUNTS PAYABLE UNDER THIS TRANSITION
AGREEMENT, WHETHER SUCH PAYMENT IS TO BE MADE IN CASH OR OTHER PROPERTY,
INCLUDING WITHOUT LIMITATION STOCK OF SOFTBRANDS, SHALL BE SUBJECT TO
WITHHOLDING FOR FEDERAL, STATE AND LOCAL INCOME TAXES, EMPLOYMENT AND PAYROLL
TAXES AND OTHER LEGALLY REQUIRED WITHHOLDING TAXES AND CONTRIBUTIONS TO THE
EXTENT APPROPRIATE IN THE DETERMINATION OF SOFTBRANDS, AND THE EXECUTIVE AGREES
TO REPORT ALL SUCH AMOUNTS AS ORDINARY INCOME ON HIS PERSONAL INCOME TAX RETURNS
AND FOR ALL OTHER PURPOSES, AS CALLED FOR.
6.6
SEVERABILITY.
IF ANY PROVISION OF THIS TRANSITION AGREEMENT IS
HELD TO BE INVALID OR UNENFORCEABLE BY ANY JUDGMENT OF A TRIBUNAL OF COMPETENT
JURISDICTION, THE REMAINING PROVISIONS AND TERMS OF THIS TRANSITION AGREEMENT
SHALL NOT BE AFFECTED BY SUCH JUDGMENT, AND THIS TRANSITION AGREEMENT SHALL BE
CARRIED OUT AS NEARLY AS POSSIBLE ACCORDING TO ITS ORIGINAL TERMS AND INTENT
AND, TO THE FULL EXTENT PERMITTED BY LAW, ANY PROVISION OR RESTRICTIONS FOUND TO
BE INVALID SHALL BE AMENDED WITH SUCH MODIFICATIONS AS MAY BE NECESSARY TO CURE
SUCH INVALIDITY, AND SUCH RESTRICTIONS SHALL APPLY AS SO MODIFIED, OR IF SUCH
PROVISIONS CANNOT BE AMENDED, THEY SHALL BE DEEMED SEVERABLE FROM THE REMAINING
PROVISIONS AND THE REMAINING PROVISIONS SHALL BE FULLY ENFORCEABLE IN ACCORDANCE
WITH LAW.
6.7
EFFECT OF WAIVER.
THE FAILURE OF EITHER PARTY TO INSIST ON STRICT
COMPLIANCE WITH ANY PROVISION OF THIS TRANSITION AGREEMENT BY THE OTHER PARTY
SHALL NOT BE DEEMED A WAIVER OF SUCH PROVISION, OR A RELINQUISHMENT OF ANY RIGHT
THEREUNDER, OR TO AFFECT EITHER THE VALIDITY OF THIS TRANSITION AGREEMENT, AND
SHALL NOT PREVENT ENFORCEMENT OF SUCH PROVISION, OR ANY SIMILAR PROVISION, AT
ANY TIME.
6.8
DESIGNATION OF BENEFICIARY.
IF THE EXECUTIVE SHALL DIE BEFORE
RECEIPT OF ALL PAYMENTS AND BENEFITS TO WHICH HE IS ENTITLED UNDER THIS
TRANSITION AGREEMENT, PAYMENT OF SUCH AMOUNTS OR BENEFITS IN THE MANNER PROVIDED
HEREIN SHALL BE MADE TO SUCH BENEFICIARY AS HE SHALL HAVE DESIGNATED IN WRITING
FILED WITH THE SECRETARY OF SOFTBRANDS OR, IN THE ABSENCE OF SUCH DESIGNATION,
TO HIS ESTATE OR PERSONAL REPRESENTATIVE.
6.9
ATTORNEYS FEES.
(I)
WITHOUT REGARD TO WHETHER THE EXECUTIVE
PREVAILS, IN WHOLE OR IN PART, IN CONNECTION THEREWITH, SOFTBRANDS WILL PAY AND
BE
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FINANCIALLY RESPONSIBLE FOR 100% OF ANY AND ALL ATTORNEYS' AND RELATED FEES AND
EXPENSES INCURRED BY THE EXECUTIVE IN CONNECTION WITH ANY DISPUTE ASSOCIATED
WITH THE INTERPRETATION, ENFORCEMENT OR DEFENSE OF THE EXECUTIVE'S RIGHTS UNDER
THIS TRANSITION AGREEMENT BY LITIGATION OR OTHERWISE.
ALL SUCH FEES AND
EXPENSES WILL BE PAID BY SOFTBRANDS AS INCURRED BY THE EXECUTIVE ON A MONTHLY
BASIS.
(II)
SOFTBRANDS WILL REIMBURSE THE EXECUTIVE
FOR ALL LEGAL FEES AND EXPENSES INCURRED BY THE EXECUTIVE IN CONNECTION WITH THE
PREPARATION, REVIEW AND NEGOTIATION OF THIS TRANSITION