EXHIBIT 10.11
IROBOT CORPORATION
00 XXXXX XXXXXX
XXXXXXXXXX, XX 00000-0000]
This Executive Agreement (the "Agreement"), by and among iRobot Corporation, a
Delaware corporation (the "Company"), and the executive named below
("Executive"), sets forth the terms and conditions by which the Company will
provide certain benefits for Executive under certain circumstances in the event
of a termination of Executive's employment with the Company. The effective date
of this Agreement shall be the date of last execution as set forth below (the
"Execution Date").
IROBOT CORPORATION EXECUTIVE
By: __________________________________
By: _________________________________
Name: ________________________________
Name: _______________________________
Address: _____________________________
Title: ______________________________
_____________________________
Date: _______________________________
Date: ________________________________
WHEREAS, Executive currently is an employee of the Company and an
Officer (as hereinafter defined), and has made and is expected to continue
to make significant contributions to the business, growth and financial
strength of the Company;
WHEREAS, the Company recognizes that the uncertainty regarding the
consequences of a termination in Executive's employment as an Officer of
the Company adversely affects the Company's ability to retain Executive;
WHEREAS, the Company further recognizes that, as is the case for
most publicly held companies, the possibility of a Change in Control (as
hereinafter defined) exists, which may alter the nature and structure of
the Company, and recognizes that the uncertainty regarding the
consequences of such an event adversely affects the Company's ability to
retain Executive as an Officer;
WHEREAS, the Company desires to more closely align Executive's
interests with those of the shareholders of the Company with respect to
any Change in Control that may benefit the shareholders;
WHEREAS, the Company desires to assure itself of both present and
future continuity of management in the event of a Change in Control, and
desires to induce Executive to remain employed with the Company by
establishing certain benefits for Executive applicable under certain
circumstances in the event of a Change in Control, and Executive desires
to be so induced; and
WHEREAS, the parties desire to set forth in writing the terms and
conditions of their agreement with respect to the provision of benefits
for Executive applicable under certain circumstances in the event of a
Change in Control;
1 of 9
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and obligations herein contained, it is agreed among the parties hereto as
follows:
1. Term. This Agreement shall continue for a term commencing on the
Execution Date and ending on the date two years thereafter ("Initial Term"), and
shall be automatically renewed from year to year thereafter for successive
one-year terms (each a "Renewal Term") unless ninety (90) days prior to the
expiration of the initial term or any renewal term, a party gives written notice
of non-renewal to the other party; provided that any such notice provided by the
Company any time during the period beginning on the date that is forty-five (45)
days prior to the date upon which a definitive agreement for a Change in Control
is publicly announced as having been executed by the Company (the "Announcement
Date") and ending on the first anniversary of the effective date of a Change in
Control, shall have no effect whatsoever, and the Agreement shall continue in
force until such time as otherwise terminated in accordance with the terms
hereof. If an effective notice of non-renewal is given as permitted hereunder,
this Agreement will expire at the conclusion of either the initial term or the
renewal term, whichever is applicable, unless terminated earlier in accordance
with Section 2 hereof. The "Term" of this Agreement shall include the Initial
Term, as well as any Renewal Term, if applicable, subject to termination at any
time prior to the expiration of the Term as provided in Section 2 hereof;
provided, however, that in the event of the first Change in Control to occur
during the Term (including after any notice of non-renewal is given), the Term
shall automatically continue through the first anniversary of the effective date
of such Change in Control.
2. At-Will Status. Notwithstanding any provision of this Agreement,
Executive will remain employed at-will, so that Executive or the Company may
terminate Executive's employment at any time, with or without notice, for any or
no reason, and this Agreement shall not create or imply any right or duty of
Executive or the Company to have Executive remain in the employ thereof for any
period of time. This Agreement shall automatically terminate on the earliest
date of (a) Executive's Termination Date (as hereinafter defined) if Executive's
employment ceases for any reason other than due to an Involuntary Termination
Upon a Change in Control or a Resignation for Good Reason Upon a Change in
Control (as such terms are hereinafter defined); or (b) the date immediately
following the one-year anniversary of the effective date of the first Change in
Control to occur during the Term; provided, that, notwithstanding any provision
in this Agreement to the contrary, if Executive's employment is terminated by
the Company prior to a Change in Control for any reason other than for Cause, or
ceases due to an Involuntary Termination Upon a Change in Control or a
Resignation for Good Reason Upon a Change in Control, this Agreement shall
remain in effect until all obligations of the parties hereunder have been fully
satisfied.
3. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth herein:
a. "Cause" shall mean any one or more of the following: (i)
Executive's willful failure or refusal (except due to Disability (as hereinafter
defined) or a condition reasonably likely to be deemed a Disability with the
passage of time) to perform substantially his/her duties on behalf of the
Company for a period of thirty (30) days after receiving written notice
identifying in reasonable detail the nature of such failure or refusal; (ii)
Executive's conviction of, entry of a plea of guilty or nolo contendere to, or
admission of guilt in connection with a felony; (iii) disloyalty, willful
misconduct or breach of fiduciary duty by Executive which causes material harm
to the Company; or (iv) Executive's willful violation of any confidentiality,
developments or non-competition agreement which causes material harm to the
Company. Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a copy of a resolution duly adopted by the Company's Board of Directors (the
"Board") (excluding Executive if he is a Director) at a meeting of the Board
called and held for (but not necessarily exclusively for) that purpose (after
reasonable notice to Executive and an opportunity for Executive, together with
counsel of his
2 of 9
choice, to be heard by the Board) finding that Executive has, in the good faith
opinion of the Board, engaged in conduct constituting Cause and specifying the
particulars thereof in reasonable detail.
b. "Change in Control" shall mean the occurrence of any of the
following events:
(i) The Company is merged or consolidated or reorganized into
or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than fifty percent (50%) of the
combined voting power of the then-outstanding securities of such surviving,
resulting or reorganized corporation or person immediately after such
transaction is held in the aggregate by the holders of the then-outstanding
securities entitled to vote generally in the election of directors of the
Company ("Voting Stock") immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or
substantially all of its assets to any other corporation or other legal person,
and as a result of such sale or transfer less than fifty percent (50%) of the
combined voting power of the then-outstanding securities of such corporation or
person immediately after such sale or transfer is held in the aggregate by the
holders of Voting Stock of the Company immediately prior to such sale or
transfer;
(iii) Any corporation or other legal person, pursuant to a
tender offer, exchange offer, purchase of stock (whether in a market transaction
or otherwise) or other transaction or event acquires securities representing 30%
or more of the Voting Stock of the Company, or there is a report filed on
Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each
as promulgated pursuant to the U.S. Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any "person" (as such term is used in
Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
"beneficial owner" (as such term is used in Rule 13d-3 under the Exchange Act)
of securities representing 30% or more of the Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing under
or in response to Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of the Company has occurred; or
(v) If during any period of two consecutive years, individuals
who at the beginning of any such period constitute the Board cease for any
reason to constitute at least a majority thereof, unless the election, or the
nomination for election by the Company's stockholders, of each director of the
Company first elected during such period was approved by a vote of at least a
majority of the directors then still in office who were directors of the Company
at the beginning of any such period;
provided, however, that a "Change in Control" shall not be deemed to have
occurred for purposes of this Agreement solely because (i) the Company, (ii) an
entity in which the Company directly or indirectly beneficially owns 50% or more
of the Voting Stock, or (iii) any Company-sponsored employee stock ownership
plan or any other employee benefit plan of the Company, either files or becomes
obligated to file a report or a proxy statement under or in response to Schedule
13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form
or report) under the Exchange Act, disclosing beneficial ownership by it of
shares of Voting Stock or because the Company reports that a change in control
of the Company has occurred by reason of such beneficial ownership.
c. "Company" shall mean iRobot Corporation, its assigns, and its
Successors.
d. "Disability" shall mean any physical or mental disability that
renders Executive unable to perform his/her essential job responsibilities for a
cumulative period of 180 days in any twelve-month period, where such disability
cannot be reasonably accommodated absent undue hardship.
3 of 9
e. "Executive Office" shall mean those offices of the Company
domiciled in the United States that the Board in its reasonable discretion may
designate from time to time as constituting an officer position pursuant to
Section 16 of the Exchange Act and/or such other officers of the Company as the
Board shall designate from time to time. Any person holding an Executive Office
shall be an "Officer."
f. "Incentive Pay Eligibility" shall mean the aggregate amount of
any cash compensation derived from any bonus, incentive, performance,
profit-sharing or similar agreement, policy, plan or arrangement of the Company
that Executive is eligible to receive based upon the attainment of 100% target
or quota with respect to any one year.
g. "Involuntary Termination Upon a Change in Control" shall mean the
termination of the employment of Executive by the Company without Cause at any
time within the period beginning on the date that is forty-five (45) days prior
to the Announcement Date and ending on the first anniversary of the effective
date of a Change in Control. "Involuntary Termination Upon Change in Control"
shall not include any termination of Executive's employment (a) for Cause; (b)
as a result of Executive's Disability; (c) as a result of Executive's death; or
(d) by Executive for any reason.
h. "Resignation for Good Reason Upon a Change in Control" shall
occur upon the receipt by the Company of Executive's notice specified below, if
any of the following "Events" occur without Executive's prior written consent
during the one-year period beginning on the effective date of a Change in
Control:
(i) The substantial reduction of (1) Executive's aggregate
base salary, (2) Executive's Incentive Pay Eligibility, or (3) the benefits for
which Executive was eligible, in each case, in effect immediately prior to a
Change in Control; unless, however, in the case of subclause (3) only, such
reduction is due to an across-the-board reduction applicable to all senior
executives of the Company and any Successor, and the benefits available to
Executive after such across-the-board reduction are no less favorable than those
available to similarly-situated executives of the Company and such Successor;
(ii) The permanent relocation of Executive's primary workplace
to a location more than thirty (30) miles away from Executive's workplace in
effect immediately prior to a Change in Control; or
(iii) Failure of any Successor to, or assignee of, the Company
to assume the duties and obligations of the Company under this Agreement
pursuant to Section 14 hereof; and
Within sixty (60) days after any such Event, Executive provides written notice
to the Company describing with reasonable specificity the Event and stating
his/her intention to resign from employment due to such Event.
j. "Severance Benefits" shall mean:
(i) payment of an amount equal to 50% (i.e., six (6) months)
of the Executive's base salary, at the highest annualized rate in effect during
the one year period immediately prior to the Termination Date payable, at
Executive's election, either (x) in a lump sum payment on the Termination Date
(subject to the expiration of any applicable revocation period required by law)
or on any other later date designated by Executive; or (y) in equal monthly
installments over the six (6) month period following the Termination Date; and
(ii) In the event Executive elects after the Termination Date
to continue health, vision and/or dental coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of
4 of 9
1985 ("COBRA"), the Company will pay, on a monthly basis, Executive's monthly
premium payments for each such coverage elected by Executive for Executive and
his or her eligible dependents, if applicable, until the earliest of the
following dates to occur with respect to each such elected coverage: (A) the six
month anniversary of the Termination Date; (B) the date upon which Executive
becomes covered under a comparable group plan for such applicable coverage; or
(C) the date upon which Executive ceases to be eligible for COBRA continuation
for such applicable coverage.
k. "Stock Plans" shall mean the Amended and Restated 1994 Stock
Plan; Amended and Restated 2001 Special Stock Option Plan; Amended and Restated
2004 Stock Option and Incentive Plan; and 2005 Stock Option and Incentive Plan;
and any other stock plans or stock option plans established and maintained by
the Company at any time during the Term and pursuant to which Executive holds
any options, stock, awards and/or purchase rights, each as may be or may have
been amended.
l. "Successor" shall mean any successor to the Company (whether
direct or indirect, by Change in Control, operation of law or otherwise),
including but not limited to any successor (whether direct or indirect, by
Change in Control, operation of law or otherwise) to, or ultimate parent entity
of any successor to, the Company.
m. "Termination Date" shall mean Executive's last date of employment
with the Company.
n. "Vesting Date" shall have the meaning specified in Section
5.a.(iv) hereof.
4. Effect of a Termination without Cause. If Executive's employment is
terminated at any time prior to a Change in Control for any reason that does not
constitute Cause, Executive shall be entitled to receive the following, subject
to Section 8 hereof; provided, however that if such termination constitutes an
Involuntary Termination Upon a Change in Control or a Resignation for Good
Reason Upon a Change in Control, Executive shall instead be entitled to the
Change in Control Benefits described in Section 5.a of this Agreement.
a. The Severance Benefits.
b. Executive shall also be entitled to any unpaid compensation and
benefits, and unused vacation accrued, through the Termination Date. Executive
shall also be entitled to receive reimbursement for expenses that Executive
reasonably and necessarily incurred on behalf of the Company prior to the
Termination Date, provided that Executive submits expense reports and supporting
documentation of such expenses as required by the practice or policy in effect
at that time. Executive shall not be eligible for or entitled to any severance
payments or benefits pursuant to a severance plan, program, arrangement,
practice or policy of the Company, if any, that may be in effect as of the
Termination Date, including without limitation any other agreement, entered into
prior to the date hereof, that Executive may have with the Company regarding the
subject matter hereof.
5. Effect of Involuntary Termination Upon a Change in Control or
Resignation for Good Reason Upon a Change in Control. In the event of an
Involuntary Termination Upon a Change in Control or a Resignation for Good
Reason Upon a Change in Control during the Term, Executive shall be entitled to
the following:
a. "Change in Control Benefits" as follows, subject to Section 8
hereof:
(i) Payment of an amount equal to 100% (i.e., 12 months) of
the Executive's base salary, at the highest annualized rate in effect during the
period between the date immediately prior
5 of 9
to the effective date of a Change in Control and the Termination Date, payable
in accordance with Section 5.a(v) below;
(ii) Payment of an amount equal to 50% of the highest amount
of Executive's Incentive Pay Eligibility with respect to the period beginning in
the year prior to that in which the Change in Control occurs and ending in the
year in which Executive's employment is terminated, payable in accordance with
Section 5.a(v) below; and
(iii) In the event Executive elects after the Termination Date
to continue health, vision and/or dental coverage pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA"), the Company will pay
Executive's monthly premium payments for each such coverage elected by Executive
for Executive and his or her eligible dependents, if applicable, until the
earliest of the following dates to occur with respect to each such elected
coverage: (A) the first anniversary of the Termination Date; (B) the date upon
which Executive becomes covered under a comparable group plan for such
applicable coverage; or (C) the date upon which Executive ceases to be eligible
for COBRA continuation for such applicable coverage.
(iv) Any and all unvested stock, stock options, awards and
rights that were granted to Executive under any of the Stock Plans prior to the
Termination Date shall immediately become fully vested and exercisable as of the
Termination Date or, if Executive's employment was terminated within the
three-month period prior to the Announcement Date, as of the Announcement Date
(whichever may apply, the "Vesting Date"). Notwithstanding any contrary
provision of any agreement relating to then outstanding stock, stock options,
awards and rights granted to Executive under any of the Stock Plans after the
Execution Date, all such stock, stock options, awards and rights granted after
the Execution Date may be exercised by Executive (or Executive's heirs, estate,
legatees, executors, administrators, and legal representatives) at any time
during the period ending on the earlier of (A) the later of (i) three (3) months
after the Vesting Date and (ii) if Executive dies within the three-month period
after the Vesting Date, the first anniversary of the date of Executive's death,
and (B) the scheduled expiration of such stock, stock option, award or right, as
the case may be. Executive hereby acknowledges and agrees that, as a result of
the operation of Section 4 and this subsection 5.a(ii), some or all of the
"incentive stock options" (as defined in the U.S. Internal Revenue Code of 1986,
as amended (the "Code")) granted to Executive under the Stock Plans may no
longer qualify as "incentive stock options" for U.S. federal income tax
purposes, and Executive hereby consents to any such disqualification.
(v) Each of the payments set forth in subsections 5.a(i)-(iii)
above (the "Cash Severance Benefits") shall be payable, at Executive's election,
either (x) in a lump sum payment on the Vesting Date (subject to the expiration
of any applicable revocation period required by law) or on any other later date
designated by Executive; or (y) in equal monthly installments over the twelve
(12) month period following the Vesting Date; provided that the payments
described in Section 5.a(iii) hereof shall be paid on a monthly basis.
b. Executive shall also be entitled to any unpaid compensation and
benefits, and unused vacation accrued, through the Termination Date. Executive
shall also be entitled to receive reimbursement for final expenses that
Executive reasonably and necessarily incurred on behalf of the Company prior to
the Termination Date, provided that Executive submits expense reports and
supporting documentation of such expenses as required by the practice or policy
in effect at that time. Executive shall not be eligible for or entitled to any
severance payments or benefits pursuant to a severance plan, program,
arrangement, practice or policy of the Company, if any, that may be in effect as
of the Termination Date, including without limitation any other agreement,
entered into prior to the date hereof, that Executive may have with the Company
regarding the subject matter hereof.
6 of 9
6. Effect of a Change in Control. If a Change in Control occurs during the
Term, then 25% of all stock, options, awards and purchase rights granted to
Executive under any Stock Plan prior to such Change in Control shall immediately
become fully vested and exercisable as of the effective date of a Change in
Control. The 25% specified in the previous sentence is in addition to any stock,
options, awards and purchase rights granted to Executive under any plan that
were already vested and exercisable (or were otherwise scheduled to become
vested and exercisable) as of the effective date of the Change in Control.
7. Liquidated Damages. The parties hereto expressly agree that provision
of the Severance Benefits or Change in Control Benefits to Executive in
accordance with the terms of this Agreement will be liquidated damages, and that
Executive shall not be required to mitigate the amount of any payments provided
for in this Agreement by seeking other employment or otherwise, nor shall any
profits, income, earnings or other benefits from any source whatsoever create
any mitigation, offset, reduction or any other obligation on the part of
Executive hereunder or otherwise.
8. Conditions of Severance Benefits and Change in Control Benefits.
Executive shall receive Severance Benefits and/or Change in Control Benefits
only if Executive: (a) executes a separation agreement, which includes a general
mutual release, in a form and of a scope reasonably acceptable to the parties
hereto; (b) returns all property, equipment, confidential information and
documentation of the Company; (c) has complied and continues to comply in all
material respects with any noncompetition, inventions and/or nondisclosure
obligations that Executive may owe to the Company, whether pursuant to an
agreement or applicable law; and (d) provides a signed, written resignation of
Executive's status as an officer, including, without limitation, an Executive
Officer, and director (if applicable) of the Company and, if applicable, its
subsidiaries. In the event that Executive has breached any obligations described
in Section 8(c), then (x) the Cash Severance Benefits shall terminate and
Executive shall no longer be entitled to them; (y) Executive shall promptly
repay to the Company any Cash Severance Benefits previously received by
Executive; and (z) all options, awards and purchase rights held by Executive
shall no longer be exercisable as of the date of Executive's breach. Such
termination and repayment of Cash Severance Benefits and cessation of the right
to exercise shall be in addition to, and not in lieu of, any and all available
legal and equitable remedies, including injunctive relief. Notwithstanding
anything in this Agreement to the contrary, any payment dates will be delayed
until after the separation agreement referred to in clause (a) above is executed
by Executive, and any applicable revocation periods required by law have
expired.
9. Taxes. All payments and benefits described in this Agreement shall be
subject to any and all applicable federal, state, local and foreign withholding,
payroll, income and other taxes.
10. Certain Reduction of Payments. If (a)(i) the Severance Benefits, (ii)
the Change in Control Benefits, (iii) the benefits received under Section 6
hereof and/or (iv) any payment or benefit received or to be received by
Executive pursuant to any other plan, arrangement or agreement (collectively,
the "Total Payments") would constitute (in whole or in part) an "excess
parachute payment" within the meaning of Section 280G(b) of the Code, and (b)
Executive would retain more of the Total Payments (after the payment of
applicable tax liabilities imposed on the Total Payments) in the event that the
Cap (defined below) is imposed, then the amount of the Total Payments shall be
reduced until the aggregate "present value" (as that term is defined in Section
280G(d)(4) of the Code using the applicable federal rate in effect on the date
of this Agreement) of the Total Payments is such that no part of the Total
Payments constitutes an "excess parachute payment" within the meaning of Section
280G(b) of the Code (the "Cap").
11. Exclusive Remedy. Except as expressly set forth herein or otherwise
required by law, Executive shall not be entitled to any compensation, benefits,
or other payments as a result of or in connection with the termination or
resignation of Executive's employment at any time, for any reason.
7 of 9
The payments and benefits set forth in Section 4, 5 and 6 hereof shall
constitute liquidated damages and shall be Executive's sole and exclusive remedy
for any claims, causes of action or demands arising under or in connection with
this Agreement or its alleged breach, the termination or resignation of
Executive's employment relationship, or the cessation of holding an Executive
Office.
12. Governing Law/Forum. The parties agree that any claims arising out of
or in connection with this Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, and this
Agreement shall in all respects be interpreted, enforced and governed under the
internal and domestic laws of such State, without giving effect to the
principles of conflicts of laws thereof. In addition, each of the parties, by
its or his execution hereof, hereby irrevocably submits to the exclusive
jurisdiction of the state or federal courts of Massachusetts with respect to any
claims arising out of or in connection with this Agreement and agrees not to
commence any such claims or actions other than in such courts. The prevailing
party in any action arising out of or in connection with this Agreement shall be
entitled to payment, by the other party, of the prevailing party's reasonable
expenses and attorneys' fees incurred in connection with such action.
13. Entire Agreement. This Agreement shall constitute the sole and entire
agreement among the parties with respect to the subject matter hereof, and
supersedes and cancels all prior, concurrent and/or contemporaneous
arrangements, understandings, promises, programs, policies, plans, practices,
offers, agreements and/or discussions, whether written or oral, by or among the
parties regarding the subject matter hereof, including, but not limited to,
those constituting or concerning employment agreements, change in control
benefits and/or severance benefits; provided, however, that this Agreement is
not intended to, and shall not, supersede, affect, limit, modify or terminate
any of the following, all of which shall remain in full force and effect in
accordance with their respective terms: (i) any written agreements, programs,
policies, plans, arrangements or practices of the Company that do not relate to
the subject matter hereof; (ii) any written stock or stock option agreements
between Executive and the Company (except as expressly modified hereby); and
(iii) any written agreements between Executive and the Company concerning
noncompetition, nonsolicitation, inventions and/or nondisclosure obligations.
14. Successors and Assignment. Executive may not assign any rights or
delegate any duties or obligations under this Agreement. The Company will
require its respective assigns and Successors to expressly assume this Agreement
and to agree to perform hereunder in the same manner and to the same extent that
the Company would be required to perform if no such succession or assignment had
taken place. Regardless of whether such an agreement is executed, this Agreement
shall inure to the benefit of, and be binding upon, the Company's Successors and
assigns and Executive's heirs, estate, legatees, executors, administrators, and
legal representatives.
15. Notices. All notices required hereunder shall be in writing and shall
be delivered in person, by facsimile or by certified or registered mail (or
similar means for non-U.S. addresses), return receipt requested, and shall be
effective upon receipt if by personal delivery or facsimile or three (3)
business days after mailing if sent by certified or registered mail (or similar
means for non-U.S. addresses). All notices shall be addressed as specified on
the first page of this Agreement or to such other address as the parties may
later provide in writing.
16. Severability/Reformation. If any provision of this Agreement or the
application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstances shall not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal shall be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid and legal. The language of all parts of this
Agreement shall in all cases be construed as a whole according to its fair
meaning and not strictly for or against any of the parties.
8 of 9
17. Modification. This Agreement may be modified or waived only in
accordance with this Section 17. No waiver by any party of any breach by the
other or any provision hereof shall be deemed to be a waiver of any later or
other breach thereof or as a waiver of any other provision of this Agreement.
This Agreement and its terms may not be waived, changed, discharged or
terminated orally or by any course of dealing between or among the parties, but
only by a written instrument signed by the party against whom any waiver,
change, discharge or termination is sought. No modification or waiver by the
Company is effective without written consent of the Board of Directors of the
Company.
18. Survival of Obligations and Rights. Notwithstanding anything to the
contrary in this Agreement, provisions herein shall survive the termination of
Executive's employment by the Company prior to a Change in Control, or due to an
Involuntary Termination Upon a Change in Control or a Resignation for Good
Reason Upon a Change in Control or, other expiration or termination of this
Agreement, if so provided herein or if necessary or desirable to fully
accomplish the purposes of such provisions, including the obligations and rights
contained in Sections 4 through 20 hereof.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
20. Section Headings. The descriptive section headings herein have been
inserted for convenience only and shall not be deemed to define, limit, or
otherwise affect the construction of any provision hereof.
9 of 9
