Exhibit 10.18
BROOKTROUT, INC.
EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement, by and between Brooktrout, Inc., a
Massachusetts corporation (the "Company"), and Xxxx X. Xxxxx (the "Executive")
is made as of March 16, 2005 (the "Effective Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions that
it may raise among key personnel, may result in the departure or distraction of
key personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to reinforce and encourage the
continued employment and dedication of certain of the Company's key personnel
without distraction from the possibility of a change in control of the Company
and related events and circumstances;
NOW, THEREFORE, as an inducement for and in consideration of the Executive
remaining in its employ, the Company agrees that the Executive shall receive the
severance benefits set forth in this Agreement in the event the Executive's
employment with the Company is terminated under the circumstances described
below subsequent to a Change in Control (as defined in Section 1.1).
1. KEY DEFINITIONS.
As used herein, the following terms shall have the following respective
meanings:
1.1. "CHANGE IN CONTROL" means an event or occurrence set forth in
any one or more of subsections (a) through (e) below (including an event
or occurrence that constitutes a Change in Control under one of such
subsections but is specifically exempted from another such subsection):
(a) the acquisition by an individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (a "Person") of beneficial ownership of any capital
stock of the Company if, after such acquisition, such
Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 25%, but less
than 35%, of either (x) the then-outstanding shares of
common stock of the Company (the "Outstanding Company
Common Stock") or (y) the combined voting power of the
then-outstanding securities of the Company entitled to
vote generally in the election of directors (the
"Outstanding Company Voting Securities"); PROVIDED,
HOWEVER, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in
Control:
(i) any acquisition directly from the Company (excluding
an acquisition pursuant to the exercise, conversion
or exchange of any security exercisable for,
convertible into or exchangeable for common stock or
voting securities of the Company, unless the Person
exercising, converting or exchanging such security
acquired such security directly from the Company or
an underwriter or agent of the Company),
(ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any corporation controlled by the
Company, or
(iv) any acquisition by any corporation pursuant to a
transaction that complies with clauses (i) and (ii)
of subsection (d) of this Section 1.1;
(b) the acquisition by a Person of beneficial ownership of any
capital stock of the Company if, after such acquisition,
such Person beneficially owns (within the meaning of Rule
13d-3 promulgated under the Exchange Act) 35% or more of
either (x) the Outstanding Company Common Stock or (y) the
Outstanding Company Voting Securities;
(c) such time as the Continuing Directors do not constitute a
majority of the Board (or, if applicable, the board of
directors of a successor corporation to the Company),
where the term "Continuing Director" means at any date a
member of the Board:
(i) who was a member of the Board on the date of the
execution of this Agreement or;
(ii) who was nominated or elected subsequent to such date
by at least a majority of the directors who were
Continuing Directors at the time of such nomination
or election or whose election to the Board was
recommended or endorsed by at least a majority of
the directors who were Continuing Directors at the
time of such nomination or election; PROVIDED,
HOWEVER, that there shall be excluded from this
clause (ii) any individual whose initial assumption
of office occurred as a result of an actual or
threatened election contest with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board;
(d) the consummation of a merger, consolidation,
reorganization, recapitalization or statutory share
exchange involving the Company or a sale or other
disposition of all or substantially all of the assets of
the Company in one or a series of transactions (a
"Business Combination"), unless, immediately following
such Business Combination, each of the following two
conditions is satisfied:
(i) all or substantially all of the individuals and
entities who were the beneficial owners of the
Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power
of the then-outstanding securities entitled to vote
generally in the election of directors,
respectively, of the resulting or acquiring
corporation in such Business Combination (which
shall include a corporation that as a result of such
transaction owns the Company or substantially all of
the Company's assets either directly or through one
or more subsidiaries) (such resulting or acquiring
corporation is referred to herein as the "Acquiring
Corporation") in substantially the same proportions
as their ownership, immediately prior to such
Business Combination, of the Outstanding Company
Common Stock and Outstanding Company Voting
Securities, respectively; and
(ii) no Person (excluding any employee benefit plan (or
related trust) maintained or sponsored by the
Company or by the Acquiring Corporation)
beneficially
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owns, directly or indirectly, 25% or more of the
then outstanding shares of common stock of the
Acquiring Corporation, or of the combined voting
power of the then-outstanding securities of such
corporation entitled to vote generally in the
election of directors (except to the extent that
such ownership existed prior to the Business
Combination); or
(e) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
1.2. "CHANGE IN CONTROL DATE" means the first date during the Term
(as defined in Section 2) on which a Change in Control occurs. Anything in
this Agreement to the contrary notwithstanding, if:
(a) a Change in Control occurs,
(b) the Executive's employment with the Company is terminated
prior to the date on which the Change in Control occurs,
and
(c) it is reasonably demonstrated by the Executive that such
termination of employment (i) was at the request of a
third party who has taken steps reasonably calculated to
effect a Change in Control or (ii) otherwise arose in
connection with or in anticipation of a Change in Control,
then for all purposes of this Agreement the "Change in Control Date" shall
mean the date immediately prior to the date of such termination of
employment.
1.3. "CAUSE" means:
(a) the Executive's willful and continued failure to
substantially perform the Executive's reasonable assigned duties as
an officer of the Company (other than any such failure resulting
from incapacity due to physical or mental illness or any failure
after the Executive gives notice of termination for Good Reason),
which failure is not cured within 30 days after a written demand for
substantial performance is received by the Executive from the Board
that specifically identifies the manner in which the Board believes
the Executive has not substantially performed the Executive's
duties; or
(b) the Executive's willful engagement in illegal conduct or
gross misconduct that is materially and demonstrably injurious to
the Company.
For purposes of this Section 1.3, no act or failure to act by the
Executive shall be considered "willful" unless it is done, or omitted to
be done, in bad faith and without reasonable belief that the Executive's
action or omission was in the best interests of the Company.
1.4. "GOOD REASON" means the occurrence, without the Executive's
written consent, of any of the following events or circumstances:
(a) the assignment to the Executive of duties that are
inconsistent in any material respect with the Executive's
position (including status, offices, titles and reporting
requirements), authority or responsibilities in effect
immediately prior to the earliest to occur of:
(i) the Change in Control Date,
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(ii) the date of the execution by the Company of the
initial written agreement or instrument providing
for the Change in Control, and
(iii) the date of the adoption by the Board of Directors
of a resolution providing for the Change in Control
(with the earliest to occur of such dates referred
to herein as the "Measurement Date"),
or any other action or omission by the Company that
results in a material diminution in such position,
authority or responsibilities;
(b) a reduction in the Executive's annual base salary as in
effect on the Measurement Date or as the same was or may
be increased thereafter from time to time;
(c) the failure by the Company to:
(i) continue in effect any material compensation or
benefit plan or program (including any life
insurance, medical, health and accident or
disability plan and any vacation or automobile
program or policy) (a "Benefit Plan") in which the
Executive participates or that is applicable to the
Executive immediately prior to the Measurement Date,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to such plan or program,
(ii) continue the Executive's participation therein (or
in such substitute or alternative plan) on a basis
not materially less favorable, both in terms of the
amount of benefits provided and the level of the
Executive's participation relative to other
participants, than the basis existing immediately
prior to the Measurement Date, or
(iii) award cash bonuses to the Executive in amounts and
in a manner substantially consistent with past
practice in light of the Company's financial
performance;
(d) a change by the Company in the location at which the
Executive performs the Executive's principal duties for
the Company to a new location that is both:
(i) outside a radius of 35 miles from the Executive's
principal residence immediately prior to the
Measurement Date, and
(ii) more than 20 miles from the location at which the
Executive performed the Executive's principal duties
for the Company immediately prior to the Measurement
Date,
or a requirement by the Company that the Executive travel
on Company business to a substantially greater extent than
required immediately prior to the Measurement Date;
(e) the failure of the Company to obtain the agreement from
any successor to the Company to assume and agree to
perform this Agreement, as required by Section 6.1;
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(f) any failure of the Company to pay or provide to the
Executive any portion of the Executive's compensation or
benefits due under any Benefit Plan within seven days of
the date such compensation or benefits are due; or
(g) any material breach by the Company of this Agreement or
any employment agreement with the Executive.
Notwithstanding the occurrence of any such event or circumstance, such
occurrence shall not be deemed to constitute Good Reason if, prior to the
Date of Termination specified in the Notice of Termination (each as
defined in Section 3.2(a)) given by the Executive in respect thereof, such
event or circumstance has been fully corrected and the Executive has been
reasonably compensated for any losses or damages resulting therefrom,
PROVIDED that such right of correction by the Company shall only apply to
the first Notice of Termination for Good Reason given by the Executive.
For purposes of this Agreement, any good faith determination of "Good
Reason" made by the Executive shall be conclusive, binding and final. The
Executive's right to terminate the Executive's employment for Good Reason
shall not be affected by the Executive's incapacity due to physical or
mental illness.
1.5. "DISABILITY" means the Executive's absence from the full-time
performance of the Executive's duties with the Company for 180 consecutive
calendar days as a result of incapacity due to mental or physical illness
that is determined to be total and permanent by a physician selected by
the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
1.6. "QUALIFYING OPTION" means an outstanding stock option agreement
granted, either before or after the date hereof, to the Executive under
any stock option or incentive plan of the Company, whether in existence on
the date hereof or adopted by the Company after the date hereof, which
agreement provides (either by its terms or by incorporation from such
plan) for the acceleration of vesting, in whole or in part, upon a
change-in-control, sale or similar event, as defined for purposes thereof
(with respect to such Qualifying Option, a "QUALIFYING OPTION EVENT"),
regardless of whether such Qualifying Option Event constitutes a Change in
Control.
2. TERM OF AGREEMENT.
This Agreement, and all rights and obligations of the parties hereunder,
shall take effect upon the Effective Date and shall expire upon the first to
occur of:
(a) the expiration of the Term (as defined below) if a Change in Control
has not occurred during the Term,
(b) the termination of the Executive's employment with the Company prior
to the Change in Control Date,
(c) the date 12 months after the Change in Control Date, if the
Executive is still employed by the Company as of such later date, or
(d) the fulfillment by the Company of all of its obligations under
Sections 4 and 5.2 if the Executive's employment with the Company
terminates within 12 months following the Change in Control Date.
"Term" shall mean the period commencing as of the Effective Date and continuing
in effect through April 1, 2008; PROVIDED, HOWEVER, that commencing on April 1,
2008 and each April 1st thereafter, the Term shall be automatically extended for
one additional year unless, not later than 90 days prior to the
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scheduled expiration of the Term (or any extension thereof), the Company shall
have given the Executive written notice that the Term will not be extended.
3. EMPLOYMENT STATUS; TERMINATION FOLLOWING CHANGE IN CONTROL.
3.1. NOT AN EMPLOYMENT CONTRACT. The Executive acknowledges that
this Agreement does not constitute a contract of employment or impose on
the Company any obligation to retain the Executive as an employee and that
this Agreement does not prevent the Executive from terminating employment
at any time. If the Executive's employment with the Company terminates for
any reason and subsequently a Change in Control shall occur, the Executive
shall not be entitled to any benefits hereunder except as otherwise
provided pursuant to Section 1.2.
3.2. TERMINATION OF EMPLOYMENT.
(a) If the Change in Control Date occurs during the Term, any
termination of the Executive's employment by the Company or by the
Executive within 12 months following the Change in Control Date
(other than due to the death of the Executive) shall be communicated
by a written notice to the other party hereto (the "Notice of
Termination"), given in accordance with Section 7. Any Notice of
Termination shall:
(i) indicate the specific termination provision (if any)
of this Agreement relied upon by the party giving
such notice,
(ii) to the extent applicable, set forth in reasonable
detail the facts and circumstances claimed to
provide a basis for termination of the Executive's
employment under the provision so indicated and
(iii) specify the Date of Termination (as defined below).
The effective date of an employment termination (the "Date of
Termination") shall be the close of business on the date specified
in the Notice of Termination (which date may not be less than 15
days or more than 120 days after the date of delivery of such Notice
of Termination), in the case of a termination other than one due to
the Executive's death, or the date of the Executive's death, as the
case may be. In the event the Company fails to satisfy the
requirements of Section 3.2(a) regarding a Notice of Termination,
the purported termination of the Executive's employment pursuant to
such Notice of Termination shall not be effective for purposes of
this Agreement.
(b) The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance that
contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from asserting
any such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
(c) Any Notice of Termination for Cause given by the Company
must be given within 90 days of the occurrence of the event(s) or
circumstance(s) that constitute(s) Cause. Prior to any Notice of
Termination for Cause being given (and prior to any termination for
Cause being effective), the Executive shall be entitled to a hearing
before the Board of Directors of the Company at which the Executive
may, at the Executive's election, be represented by counsel and at
which the Executive shall have a reasonable opportunity to be heard.
Such hearing shall be held on not less than 15 days prior written
notice to the Executive stating the Board of Directors' intention to
terminate the Executive for Cause and stating in detail the
particular
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event(s) or circumstance(s) that the Board of Directors believes
constitutes Cause for termination.
(d) Any Notice of Termination for Good Reason given by the
Executive must be given within 60 days of the occurrence of the
event(s) or circumstance(s) that constitute(s) Good Reason.
4. BENEFITS TO EXECUTIVE.
4.1. COMPENSATION AND STOCK ACCELERATION. If the Change in Control
Date occurs during the Term and the Executive's employment with the
Company terminates within 12 months following the Change in Control Date,
the Executive shall be entitled to the following benefits:
(a) If the Executive's employment with the Company is
terminated by the Company (other than for Cause, Disability or
death) or by the Executive for Good Reason within 12 months
following the Change in Control Date, then the Executive shall be
entitled to the following benefits:
(i) the Company shall pay to the Executive in a lump sum
in cash within 30 days after the Date of Termination
the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary
through the Date of Termination, (B) the product
of (x) the annual bonus paid or payable
(including any bonus or portion thereof that has
been earned but deferred) for the most recently
completed fiscal year and (y) a fraction, the
numerator of which is the number of days in the
current fiscal year through the Date of
Termination, and the denominator of which is 365
and (C) any accrued vacation pay, in each case
to the extent not previously paid; and
(2) the amount equal to (A) two multiplied by (B)
the sum of (x) the Executive's highest annual
base salary during the five-year period prior to
the Change in Control Date and (y) the
Executive's highest annual bonus during the
five-year period prior to the Change in Control
Date.
(ii) for 24 months after the Date of Termination, or such
longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the
Company shall continue to provide benefits to the
Executive and the Executive's family at least equal
to those that would have been provided to them if
the Executive's employment had not been terminated,
in accordance with the applicable Benefit Plans in
effect on the Measurement Date or, if more favorable
to the Executive and the Executive's family, in
effect generally at any time thereafter with respect
to other peer executives of the Company and its
affiliated companies; PROVIDED, HOWEVER, that if the
Executive becomes reemployed with another employer
and is eligible to receive a particular type of
benefits (e.g., health insurance benefits) from such
employer on terms at least as favorable to the
Executive and the Executive's family as those being
provided by the Company, then the Company shall no
longer be required to provide those particular
benefits to the Executive and the Executive's
family;
(iii) to the extent not previously paid or provided, the
Company shall timely pay or provide to the Executive
any other amounts or benefits required to be paid or
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provided or that the Executive is eligible to
receive following the Executive's termination of
employment under any plan, program, policy,
practice, contract or agreement of the Company and
its affiliated companies; and
(iv) for purposes of determining eligibility (but not the
time of commencement of benefits) of the Executive
for retiree benefits to which the Executive is
entitled, the Executive shall be considered to have
remained employed by the Company until 24 months
after the Date of Termination.
(v) if the Change in Control relating to such Change in
Control Date did not constitute a Qualifying Option
Event under any Qualifying Option held by the
Executive, then:
(1) any such Qualifying Option that provides for
acceleration of vesting in full upon a
Qualifying Option Event shall become immediately
exercisable in full as of the Date of
Termination; and
(2) the vesting of any other such Qualifying Option
shall accelerate in part, with the number of
shares so vesting being equal to the number of
shares that would have vested as of the date of
the Qualifying Option Event, assuming such
Change in Control would have constituted a
Qualifying Option Event.
(b) If the Executive voluntarily terminates the Executive's
employment with the Company within 12 months following the Change in
Control Date, excluding a termination for Good Reason, or if the
Executive's employment with the Company is terminated by reason of
the Executive's death or Disability within 12 months following the
Change in Control Date, then the Company shall (i) pay the Executive
(or the Executive's estate, if applicable), in a lump sum in cash
within 30 days after the Date of Termination, the amounts due
pursuant to clauses (A), (B) and (C) of Section 4.1(a)(i)(1) and
(ii) timely pay or provide to the Executive the amounts due pursuant
to Section 4.1(iii).
(c) If the Company terminates the Executive's employment with
the Company for Cause within 12 months following the Change in
Control Date, then the Company shall (i) pay the Executive, in a
lump sum in cash within 30 days after the Date of Termination, the
sum of the Executive's annual base salary through the Date of
Termination, to the extent not previously paid, and (ii) timely pay
or provide to the Executive the amounts due pursuant to Section
4.1(iii)
4.2. TAXES.
(a) In the event that the Company undergoes a "Change in
Ownership or Control" (as defined below), the Company shall, within
30 days after each date on which the Executive becomes entitled to
receive (whether or not then due) a Contingent Compensation Payment
(as defined below) relating to such Change in Ownership or Control,
determine and notify the Executive (with reasonable detail regarding
the basis for its determinations) (i) which of the payments or
benefits due to the Executive (under this Agreement or otherwise)
following such Change in Ownership or Control constitute Contingent
Compensation Payments, (ii) the amount, if any, of the excise tax
(the "Excise Tax") payable pursuant to Section 4999 of the Internal
Revenue Code of 1986, as amended (the "Code"), by the Executive with
respect to such Contingent Compensation Payment and (iii) the amount
of the Gross-Up Payment (as defined below) due to the Executive with
respect to such Contingent Compensation Payment.
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Within 30 days after delivery of such notice to the Executive, the
Executive shall deliver a response to the Company (the "Executive
Response") stating either (A) that the Executive agrees with the
Company's determination pursuant to the preceding sentence or (B)
that the Executive disagrees with such determination, in which case
the Executive shall indicate which payment and/or benefits should be
characterized as a Contingent Compensation Payment, the amount of
the Excise Tax with respect to such Contingent Compensation Payment
and the amount of the Gross-Up Payment due to the Executive with
respect to such Contingent Compensation Payment. The amount and
characterization of any item in the Executive Response shall be
final; provided, however, that in the event that the Executive fails
to deliver an Executive Response on or before the required date, the
Company's initial determination shall be final. Within 90 days after
the due date of each Contingent Compensation Payment to the
Executive, the Company shall pay to the Executive, in cash, the
Gross-Up Payment with respect to such Contingent Compensation
Payment, in the amount determined pursuant to this Section 4.2(a).
(b) For purposes of this Section 4.2, the following terms
shall have the following respective meanings:
(i) "Change in Ownership or Control" shall mean a change
in the ownership or effective control of the Company
or in the ownership of a substantial portion of the
assets of the Company determined in accordance with
Section 280G(b)(2) of the Code.
(ii) "Contingent Compensation Payment" shall mean any
payment (or benefit) in the nature of compensation
that is made or made available (under this
Agreement, the terms of any stock option agreement
(whether outstanding as of the date of this
agreement or granted subsequently, even if the
vesting of options granted thereunder may be
accelerated by an event or occurrence that
constitutes a Change in Control for purposes of this
agreement), or otherwise) to a "disqualified
individual" (as defined in Section 280G(c) of the
Code) and that is contingent (within the meaning of
Section 280G(b)(2)(A)(i) of the Code) on a Change in
Ownership or Control of the Company.
(iii) "Gross-Up Payment" shall mean an amount equal to the
sum of (i) the amount of the Excise Tax payable with
respect to a Contingent Compensation Payment and
(ii) the amount necessary to pay all additional
taxes imposed on (or economically borne by) the
Executive (including the Excise Taxes, state and
federal income taxes and all applicable employment
taxes) attributable to the receipt of such Gross-Up
Payment. For purposes of the preceding sentence, all
taxes attributable to the receipt of the Gross-Up
Payment shall be computed assuming the application
of the maximum tax rates provided by law.
4.3. MITIGATION. The Executive shall not be required to mitigate the
amount of any payment or benefits provided for in this Section 4 by
seeking other employment or otherwise. Further, except as provided in
Section 4.1(a)(ii), the amount of any payment or benefits provided for in
this Section 4 shall not be reduced by any compensation earned by the
Executive as a result of employment by another employer, by retirement
benefits, by offset against any amount claimed to be owed by the Executive
to the Company or otherwise.
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5. DISPUTES.
5.1. SETTLEMENT OF DISPUTES; ARBITRATION. All claims by the
Executive for benefits under this Agreement shall be directed to and
determined by the Board of Directors of the Company and shall be in
writing. Any denial by the Board of Directors of a claim for benefits
under this Agreement shall be delivered to the Executive in writing and
shall set forth the specific reasons for the denial and the specific
provisions of this Agreement relied upon. The Board of Directors shall
afford a reasonable opportunity to the Executive for a review of the
decision denying a claim. Any further dispute or controversy arising under
or in connection with this Agreement shall be settled exclusively by
arbitration in Boston, Massachusetts, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered
on the arbitrator's award in any court having jurisdiction.
5.2. EXPENSES. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal, accounting and other fees and expenses
that the Executive may reasonably incur as a result of any claim or
contest (regardless of the outcome thereof) by the Company, the Executive
or others regarding the validity or enforceability of, or liability under,
any provision of this Agreement or any guarantee of performance thereof
(including as a result of any contest by the Executive regarding the
amount of any payment or benefits pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Code.
6. SUCCESSORS.
6.1. SUCCESSOR TO COMPANY. 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 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 at or prior to the effectiveness of any succession shall
be a breach of this Agreement and shall constitute Good Reason if the
Executive 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 that assumes and agrees
to perform this Agreement, by operation of law or otherwise.
6.2. SUCCESSOR TO EXECUTIVE. This Agreement shall inure to the
benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amount would still be payable to the Executive or the Executive's family
hereunder if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
7. NOTICE.
All notices, instructions and other communications given hereunder or in
connection herewith shall be in writing. Any such notice, instruction or
communication shall be sent either:
(a) by registered or certified mail, return receipt requested, postage
prepaid, or
(b) prepaid via a reputable nationwide overnight courier service,
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in each case addressed to the Company, at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: President, and to the Executive at the
Executive's address indicated on the signature page of this Agreement (or to
such other address as either the Company or the Executive may have furnished to
the other in writing in accordance herewith). Any such notice, instruction or
communication shall be deemed to have been delivered five business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, or one business day after it is sent via a reputable nationwide
overnight courier service. Either party may give any notice, instruction or
other communication hereunder using any other means, but no such notice,
instruction or other communication shall be deemed to have been duly delivered
unless and until it actually is received by the party for whom it is intended.
8. MISCELLANEOUS.
8.1. EMPLOYMENT BY SUBSIDIARY. For purposes of this Agreement, the
Executive's employment with the Company shall not be deemed to have
terminated solely as a result of the Executive continuing to be employed
by a wholly owned subsidiary of the Company.
8.2. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
8.3. INJUNCTIVE RELIEF. The Company and the Executive agree that any
breach of this Agreement by the Company is likely to cause the Executive
substantial and irrevocable damage and therefore, in the event of any such
breach, in addition to such other remedies that may be available, the
Executive shall have the right to specific performance and injunctive
relief.
8.4. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of
the Commonwealth of Massachusetts, without regard to conflicts of law
principles.
8.5. WAIVERS. No waiver by the Executive at any time of any breach
of, or compliance with, any provision of this Agreement to be performed by
the Company shall be deemed a waiver of that or any other provision at any
subsequent time.
8.6. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but both of which together
shall constitute one and the same instrument.
8.7. TAX WITHHOLDING. Any payments provided for hereunder shall be
paid net of any applicable tax withholding required under federal, state
or local law.
8.8. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any officer, employee or representative of any party hereto
in respect of the subject matter contained herein; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled. Notwithstanding the foregoing, this
Agreement shall not be deemed to supersede, in part or in whole, the terms
of any stock option agreement, whether outstanding as of the date of this
Agreement or granted subsequently, even if the vesting of options granted
thereunder may be accelerated by an event or occurrence that constitutes a
Change in Control for purposes of this Agreement.
8.9. CONSTRUCTION. The headings of the Sections of this Agreement
are included only for convenience and shall not affect the meaning or
interpretation of this Agreement. References herein
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to Sections shall mean such Sections of this Agreement, except as
otherwise specified. The words "herein" and "hereof" and other words of
similar import refer to this Agreement as a whole and not to any
particular part of this Agreement. The word "including" as used herein
shall not be construed so as to exclude any other thing not referred to or
described.
8.10. AMENDMENTS. This Agreement may be amended or modified only by
a written instrument executed by both the Company and the Executive.
8.11. EXECUTIVE'S ACKNOWLEDGEMENTS. The Executive acknowledges that
the Executive:
(a) has read this Agreement;
(b) has been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of the
Executive's own choice or has voluntarily declined to seek
such counsel;
(c) understands the terms and consequences of this Agreement;
and
(d) understands that the law firm of Xxxxxx Xxxxxx Xxxxxxxxx
Xxxx and Xxxx LLP is acting as counsel to the Company in
connection with the transactions contemplated by this
Agreement, and is not acting as counsel for the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
BROOKTROUT, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Vice President of Finance and Operations
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
Address:
000 Xxxxxxxx Xxxxxx
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Xxxxxxxxx, XX 00000
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