THE MANNER SET FORTH IN THIS SECTION 10.
11.
TERMINATION OF EXECUTIVE RETENTION AGREEMENT. THE COMPANY AND THE
EMPLOYEE HEREBY AGREE THAT, IN CONSIDERATION OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, THE EXECUTIVE RETENTION AGREEMENT DATED AS OF
BETWEEN
THE COMPANY AND THE EMPLOYEE (THE "EXECUTIVE RETENTION AGREEMENT") IS HEREBY
EXPRESSLY TERMINATED BY MUTUAL AGREEMENT AND NEITHER PARTY HAS ANY FURTHER
RIGHTS OR OBLIGATIONS THEREUNDER.
12.
ENTIRE AGREEMENT. THIS AGREEMENT, INCLUDING THE NONDISCLOSURE
AGREEMENT ATTACHED HERETO AS EXHIBIT A, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN
THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS AND
8
UNDERSTANDINGS (INCLUDING, WITHOUT LIMITATION, THE EXECUTIVE RETENTION
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 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 UPON THE
EFFECTIVENESS OF ANY SUCCESSION SHALL BE A BREACH OF THIS AGREEMENT AND 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. THIS AGREEMENT SHALL
BE BINDING UPON AND INURE TO THE BENEFIT OF BOTH PARTIES AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS; PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF THE EMPLOYEE
ARE PERSONAL AND SHALL NOT BE ASSIGNED BY THE EMPLOYEE.
16.
ACKNOWLEDGMENT. THE EMPLOYEE STATES AND REPRESENTS THAT HE/SHE HAS
HAD AN OPPORTUNITY TO FULLY DISCUSS AND REVIEW THE TERMS OF THIS AGREEMENT WITH
AN ATTORNEY. THE EMPLOYEE FURTHER STATES AND REPRESENTS THAT HE/SHE HAS
CAREFULLY READ THIS AGREEMENT, UNDERSTANDS THE CONTENTS HEREIN, FREELY AND