EXHIBIT 10.8
[PHASE - FORWARD (TM) LOGO]
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000, X.X.X.
Tel. (000) 000-0000
Fax. (000) 000-0000
This Executive Agreement (the "Agreement"), by and among Phase Forward
Incorporated, a Delaware corporation (the "Company"), and the executive name
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").
PHASE FORWARD INCORPORATED 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;
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
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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 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
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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 Phase Forward Incorporated, 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.
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; provided, that for purposes of this
Agreement, Executive Office shall also be deemed to include, without limitation,
the Chief Executive Officer, Chief Financial Officer, Vice President of Finance,
Vice President of Development, Vice President of North American Sales, Vice
President of Marketing, Vice President - Human Resources, Vice President -
General Counsel 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."
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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 calendar year; provided, however that Incentive
Pay Eligibility shall exclude any commission or bonus that Executive is eligible
to received under the Company's 2004 Global Sales Incentive Compensation Plan or
any successor plan thereto.
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 two-year period beginning on the effective date
of a Change in Control:
(i) The substantial reduction of (1) Executive's
aggregate base salary, or (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 reductions are so 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., 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 Vesting Date or on
any other date designated by Executive; or (y) in equal monthly installments
over the twelve (12) month period following the Vesting Date; and
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(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 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 Phase Forward
Incorporated Amended and Restated 1997 Stock Option Plan, the Phase Forward
Incorporated 2004 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, excluding the 2004
Employee Stock Purchase Plan and any other plan adopted by the Company pursuant
to Section 423 of the U.S. Internal Revenue Code of 1986, as amended (the
"Code").
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.
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; 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, in lieu of
the Severance Benefits, Executive shall be entitled to the Change in Control
Benefits described in Section 5.a of this Agreement.
(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 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 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 any one
calendar year in the period beginning in the calendar year prior to that in
which the Change in Control occurs and ending in the calendar 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
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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 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 or
on any other 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 any member 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. 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 the Phase Forward Incorporated 2004 Stock Option and
Incentive 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 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
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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.
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. 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
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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.
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 Chairman of the Board 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.
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