HIM IN CONFIDENCE OR IN TRUST PRIOR TO HIS
EMPLOYMENT WITH THE COMPANY AND THAT THE EXECUTIVE WILL NOT DISCLOSE TO THE
COMPANY OR INDUCE THE COMPANY TO USE ANY CONFIDENTIAL OR PROPRIETARY
INFORMATION, KNOWLEDGE OR MATERIAL BELONGING TO ANY PREVIOUS EMPLOYER OR
OTHERS.
THE EXECUTIVE FURTHER REPRESENTS THAT HIS PERFORMANCE OF ALL THE TERMS
OF THIS AGREEMENT AND THE PERFORMANCE OF HIS DUTIES AS AN EMPLOYEE OF THE
COMPANY DOES NOT AND WILL NOT BREACH ANY
15
AGREEMENT TO REFRAIN FROM SOLICITING EMPLOYEES, CUSTOMERS OR SUPPLIERS OF ANY
FORMER EMPLOYER OR OTHERS.
8.
INDEMNIFICATION.
THE COMPANY SHALL
INDEMNIFY THE EXECUTIVE IN ACCORDANCE WITH ITS CERTIFICATE OF INCORPORATION AND
BY-LAWS.
9.
SURVIVAL.
THE PROVISIONS OF
SECTIONS 6, 7 AND 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY
REASON.
10.
NOTICES.
ANY NOTICES 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 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.
COMPLIANCE WITH CODE SECTION 409A.
THIS
AGREEMENT IS INTENDED TO COMPLY WITH THE PROVISIONS OF SECTION 409A AND THE
AGREEMENT SHALL, TO THE EXTENT PRACTICABLE, BE CONSTRUED IN ACCORDANCE
THEREWITH.
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO
LIABILITY TO THE EXECUTIVE OR ANY OTHER PERSON IF ANY PROVISIONS OF THIS
AGREEMENT ARE DETERMINED TO CONSTITUTE DEFERRED COMPENSATION SUBJECT TO
SECTION 409A AND DO NOT SATISFY AN EXEMPTION FROM, OR THE CONDITIONS OF,
SECTION 409A.
12.
PRONOUNS.
WHENEVER THE CONTEXT MAY REQUIRE,
ANY PRONOUNS USED IN THIS AGREEMENT SHALL INCLUDE THE CORRESPONDING MASCULINE,
FEMININE OR NEUTER FORMS, AND THE SINGULAR FORMS OF NOUNS AND PRONOUNS SHALL
INCLUDE THE PLURAL, AND VICE VERSA.
16
13.
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER
WITH THE ERA, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND
SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THE LETTER AGREEMENT BETWEEN THE COMPANY AND THE EXECUTIVE DATED MARCH 11, 2003
AND THE ORIGINAL AGREEMENT.
14.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED OR
MODIFIED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY BOTH THE COMPANY AND THE
EXECUTIVE.
15.
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