BROADSOFT, INC. EXECUTIVE CHANGE IN CONTROL SEVERANCE BENEFITS AGREEMENT
Exhibit 10.10
BROADSOFT,
INC.
EXECUTIVE CHANGE
IN
CONTROL SEVERANCE BENEFITS AGREEMENT
CONTROL SEVERANCE BENEFITS AGREEMENT
This Executive Change
in Control Severance Benefits Agreement (the
“Agreement”) is entered into as of
,
20 (the “Effective
Date”), by and between
Name of Executive
(the “Executive”) and
BroadSoft, Inc.,
a Delaware corporation (the
“Company”).
WHEREAS, Executive is currently employed by the Company and the
Company wishes to align the interests of Executive with the
possibility of a Change in Control (as defined below) and
therefore has decided to provide the Executive with benefits and
protections in the event of a Change in Control.
WHEREAS, the Company and Executive wish to enter into this
Agreement to set forth the compensation and benefits that
Executive will be eligible to receive in the event that
Executive’s employment with the Company terminates
following a Change in Control under the circumstances described
herein.
Accordingly, in consideration of the mutual promises and
covenants contained herein, the parties agree to the following:
1. Severance
Benefits.
1.1 Eligibility for Severance
Benefits. In the event that (a) a Change
in Control (as defined below) is consummated, and
(b) Executive’s employment terminates due to an
Involuntary Termination (as defined below) or a Constructive
Termination (as defined below), in either case, within one
(1) month prior to, as of, or within twelve
(12) months after, the effective date of such Change in
Control (such events are referred to as “Covered
Terminations”), Executive will be eligible for the
compensation and benefits described in this Section 1. If
Executive’s employment terminates for any reason other than
a Covered Termination, Executive shall not be eligible to
receive any compensation or benefits under this Agreement.
Payment of any benefits described in this Section 1 shall
be subject to the restrictions and limitations set forth in
Section 1.3 and the Release contemplated therein.
References to the Company in this Section 1 shall be deemed
to include any affiliate of the Company, or the acquiring,
surviving or successor entity in the Change in Control or their
affiliates (collectively, “Successor”),
as applicable.
1.2 Severance Benefits. Following
a Covered Termination, and subject to the terms and conditions
set forth in Section 1.3, Executive will be eligible for
the following compensation and benefits:
(a) Severance pay at the rate of Executive’s
base salary in effect immediately prior to the effective date of
the Covered Termination for a period (the “Severance
Period”) of
[12/9/6] months
from the date that the Release described in Section 1.3
below becomes effective and may no longer be revoked by
Executive (the “Release Effective Date”),
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less applicable withholdings and deductions as required by law,
paid on the regular payroll dates of the Company, beginning with
the first such date that occurs following the Release Effective
Date. Notwithstanding the above, any severance payments that are
regularly scheduled to occur under the provisions herein after
March 15 of the calendar year following the year in which
Executive’s right to receive severance begins shall instead
be accelerated and paid in full through a lump-sum cash payment,
less applicable withholdings and deductions as required by law,
on March 15 of the subsequent calendar year.
(b) If Executive is participating in the group
health insurance plans of the Company on the effective date of
the Covered Termination, and Executive timely elects and remains
eligible for continued coverage under COBRA, or, if applicable,
state insurance laws, the Company shall pay or shall reimburse
Executive for that portion of Executive’s COBRA premiums
that the Company was paying on behalf of Executive and his
eligible dependents, if any, for such group health coverage
immediately prior to the Covered Termination for the Severance
Period or for the continuation period for which Executive is
eligible, whichever is shorter. The Company’s COBRA premium
payment or reimbursement obligation will end immediately if
Executive obtains comparable health care insurance coverage from
any other source during the Severance Period, and Executive
agrees to promptly notify the Company upon obtaining such
coverage. This Section 1.2(b) is not intended to affect,
nor does it affect, the rights of Executive, or Executive’s
covered dependents, under any applicable law with respect to
health insurance continuation coverage.
(c) The compensation and benefits provided to
Executive pursuant to this Agreement are in lieu of, and not in
addition to, any benefits to which Executive may otherwise be
entitled under any other agreement between Executive and the
Company or any Company severance plan, policy or program,
including any individually negotiated severance provisions as
part of any offer letter or employment agreement between the
Company and Executive.
1.3 Release. Before any
compensation or benefits will be payable to Executive or will be
continued under this Agreement on account of a Covered
Termination, Executive must (a) execute a release
substantially in the form attached hereto as Exhibit A
(the “Release”) within the
applicable Consideration Period specified in the Release not to
exceed forty-five (45) days after the effective date of the
Covered Termination or, if no Consideration Period is specified
in the Release, within fourteen (14) days of the effective
date of the Covered Termination, (b) not revoke the Release
within any applicable revocation period specified in the
Release, and (c) comply with any post-termination
obligations to the Company, including the confidentiality and
non-disparagement provisions of the Release. In the event that
Executive does not comply with any of the foregoing obligations,
no compensation or benefits shall be payable under this
Agreement to Executive, and the Company may cease any further
payments or the provision of additional benefits hereunder.
1.4 No Mitigation. Executive shall
not be required to mitigate damages or the amount of any payment
provided under this Agreement by seeking other employment or
otherwise, and except as expressly provided in
Section 1.2(b) above, the amount of any payment provided
for under this Agreement shall not be reduced by any
compensation earned by Executive as a result of employment by
another employer or by retirement benefits received
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after the date of the Covered Termination, or otherwise.
1.5 Basis of Payments. All
benefits under this Agreement shall be paid by the Company. This
Agreement shall be unfunded, and benefits hereunder shall be
paid only from the general assets of the Company.
1.6 Definitions. For purposes of
this Agreement, the following terms shall have the following
meanings:
(a) “Cause” shall mean:
(i) Executive’s commission of a felony; (ii) any
act or omission of Executive constituting dishonesty, fraud,
immoral or disreputable conduct that causes material harm to the
Company; (iii) Executive’s violation of Company policy
that causes material harm to the Company;
(iv) Executive’s material breach of any written
agreement between Executive and the Company which, if curable,
remains uncured after notice; or (v) Executive’s
breach of fiduciary duty.
(b) “Change in Control” means the
occurrence, in a single transaction or in a series of related
transactions, of any one or more of the following events:
(i) any person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) (an
“Exchange Act Person”) becomes the
beneficial owner (within the meaning of
Rule 13d-3
under the Exchange Act), directly or indirectly, of securities
of the Company representing more than fifty percent (50%) of the
combined voting power of the Company’s then outstanding
securities other than by virtue of a merger, consolidation or
similar transaction. Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur (A) on account of the
acquisition of securities of the Company by an investor, any
affiliate thereof or any other Exchange Act Person from the
Company in a transaction or series of related transactions the
primary purpose of which is to obtain financing for the Company
through the issuance of equity securities, or (B) solely
because the level of ownership held by any Exchange Act Person
(the “Subject Person”) exceeds the
designated percentage threshold of the outstanding voting
securities as a result of a repurchase or other acquisition of
voting securities by the Company reducing the number of shares
outstanding, provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the
acquisition of voting securities by the Company, and after such
share acquisition, the Subject Person becomes the owner of any
additional voting securities that, assuming the repurchase or
other acquisition had not occurred, increases the percentage of
the then outstanding voting securities owned by the Subject
Person over the designated percentage threshold, then a Change
in Control shall be deemed to occur;
(ii) there is consummated a merger, consolidation or
similar transaction involving (directly or indirectly) the
Company and, immediately after the consummation of such merger,
consolidation or similar transaction, the stockholders of the
Company immediately prior thereto do not own, directly or
indirectly, either (A) outstanding voting securities
representing more than fifty percent (50%) of the combined
outstanding voting power of the surviving entity in such merger,
consolidation or similar transaction or (B) more than fifty
percent (50%) of the combined outstanding voting power of the
parent of the surviving entity in such merger, consolidation or
similar transaction, in each case in substantially the same
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proportions as their ownership of the outstanding voting
securities of the Company immediately prior to such
transaction; or
(iii) there is consummated a sale, lease, exclusive
license or other disposition of all or substantially all of the
consolidated assets of the Company and its subsidiaries, other
than a sale, lease, license or other disposition of all or
substantially all of the consolidated assets of the Company and
its subsidiaries to an entity, more than fifty percent (50%) of
the combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the same
proportions as their ownership of the outstanding voting
securities of the Company immediately prior to such sale, lease,
license or other disposition.
For the avoidance of doubt, the term Change in Control shall not
include a sale of assets, merger or other transaction effected
exclusively for the purpose of changing the domicile of the
Company.
(c) “Constructive Termination”
shall mean that Executive terminates Executive’s employment
with the Company for Good Reason.
(d) “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
(e) “Good Reason” shall mean any of
the following, without Executive’s consent: (i) a
material diminution of Executive’s responsibilities or
duties (provided, however, that the acquisition of the
Company and subsequent conversion of the Company to a division
or unit of the acquiring company will not by itself be deemed to
be a diminution of executive’s responsibilities or duties);
(ii) reduction in the level of Executive’s base
salary; (iii) relocation of the office at which Executive
is principally based to a location that is more than thirty-five
(35) miles from the location at which Executive performed
his or her duties immediately prior to the effective date of a
Change in Control or if the Executive is located in the
Company’s Gaithersburg, MD office, to a location that is
outside the Washington, D.C. metropolitan area;
(iv) failure of a Successor in a Change in Control to
assume this Agreement; or (v) the Company’s material
breach of any written agreement between Executive and the
Company. Notwithstanding the foregoing, any actions taken by the
Company to accommodate a disability of Executive or pursuant to
the Family and Medical Leave Act shall not be a Good Reason for
purposes of this Agreement. Additionally, before Executive may
terminate employment for a Good Reason, Executive must notify
the Company in writing within thirty (30) days after the
initial occurrence of the event, condition or conduct giving
rise to Good Reason, the Company must fail to remedy or cure the
alleged Good Reason within the thirty (30) day period after
receipt of such notice if capable of being cured within such
thirty-day
period, and, if the Company does not cure the Good Reason (or it
is incapable of being cured within such
thirty-day
period), then Executive must terminate employment by no later
than thirty (30) days after the expiration of the last day
of the cure period (or, if the event condition or conduct is not
capable of being cured within such
thirty-day
period, within thirty (30) days after initial notice to the
Company of the violation). Transferring Executive’s
employment to a Successor is not itself Good Reason to terminate
employment under this Agreement, provided, however, that
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subparagraphs (i) through (v) above shall continue to
apply to Executive’s employment by the Successor.
(f) “Involuntary Termination” shall
mean that Executive’s employment is terminated by the
Company without Cause. The termination of Executive’s
employment as a result of the death or disability of Executive
shall not, in any event, be deemed to be an “Involuntary
Termination.” Transferring employment to a Successor shall
not be considered an Involuntary Termination under this
Agreement.
2. General
Provisions.
2.1 Employment Status. This
Agreement does not constitute a contract of employment or impose
on Executive any obligation to remain as an employee, or impose
on the Company any obligation to (a) retain Executive as an
employee, (b) change the status of Executive as an at-will
employee or (c) change the Company’s policies
regarding termination of employment.
2.2 Nonexclusivity. Except as
specifically provided herein, nothing in this Agreement shall
prevent or limit Executive’s continuing or future
participation in any benefit, bonus, incentive or other plans,
programs, policies or practices provided by the Company and for
which Executive may otherwise qualify, nor shall anything herein
limit or otherwise affect such rights as Executive may have
under any stock option or other equity agreements with the
Company. Except as otherwise expressly provided herein, amounts
which are vested benefits of which Executive is otherwise
entitled to receive under any plan, policy, practice or program
of the Company at or subsequent to the date of a Covered
Termination shall be payable in accordance with such plan,
policy, practice or program.
2.3 Non-Alienation of Benefits. No
benefit hereunder shall be subject to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or change, and
any attempt to so subject a benefit hereunder shall be void.
2.4 Notices. Any notices provided
hereunder must be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party to be
notified, (b) when sent by electronic mail, telex or
confirmed facsimile if sent during normal business hours of the
recipient, and if not, then on the next business day,
(c) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or
(d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with
written verification of receipt. All communications shall be
sent to the Company at its primary office location and to
Executive at Executive’s address as listed on the Company
payroll, or at such other address as the Company or Executive
may designate by ten (10) days advance written notice to
the other.
2.5 Severability. Whenever
possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability will not affect any other
provision or any other jurisdiction, but this Agreement will be
reformed,
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construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained
herein.
2.6 Waiver. If either party should
waive any breach of any provisions of this Agreement, Executive
or it shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this
Agreement.
2.7 Complete Agreement. This
Agreement, including Exhibit A, constitutes the
entire agreement between Executive and the Company with regard
to the subject matter hereof. This Agreement is the complete,
final, and exclusive embodiment of their agreement with regard
to this subject matter and supersedes any prior oral discussions
or written communications and agreements. This Agreement is
entered into without reliance on any promise or representation
other than those expressly contained herein.
2.8 Amendments. This Agreement may
be amended, modified or terminated only in writing signed by
Executive and the Company. The Company may only consent to an
amendment or modification of this Agreement after such amendment
or modification has been approved by the Company’s Board of
Directors or compensation committee thereof.
2.9 Counterparts. This Agreement
may be executed in separate counterparts, any one of which need
not contain signatures of more than one party, but all of which
taken together will constitute one and the same Agreement.
2.10 Headings. The headings of the
sections hereof are inserted for convenience only and shall not
be deemed to constitute a part hereof nor to affect the meaning
thereof.
2.11 Successors and Assigns. This
Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive and the Company, and their respective
successors, assigns, heirs, executors and administrators, except
that Executive may not assign any of Executive’s duties
hereunder and Executive may not assign any of Executive’s
rights hereunder without the written consent of the Company.
2.12 Choice of Law. All questions
concerning the construction, validity and interpretation of this
Agreement will be governed by the law of the State of Maryland.
2.13 Resolution of Disputes.
(a) Exclusive Remedy. The parties
recognize that litigation in federal or state courts or before
federal or state administrative agencies of disputes arising out
of this Agreement may not be in the best interests of either
Executive or the Company, and may result in unnecessary costs,
delays, complexities, and uncertainty. The parties agree that
any dispute between the parties arising out of or relating to
the negotiation, execution, performance or termination of this
Agreement shall be settled by binding arbitration in accordance
with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association. The location
for the arbitration shall be in the Washington, D.C.
metropolitan area. Any award made by such panel shall be final,
binding and conclusive on the parties for all
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purposes, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction
thereof. The arbitrators’ fees and expenses and all
administrative fees and expenses associated with the filing of
the arbitration shall be borne by the Company; provided
however, that at Executive’s option, Executive may
voluntarily pay up to one-half the costs and fees. The parties
acknowledge and agree that their obligations to arbitrate under
this Section survive the termination of this Agreement and
continue after the termination of the employment relationship
between Executive and the Company. The parties each further
agree that the arbitration provisions of this Agreement shall
provide each party with its exclusive remedy, and each
party expressly waives any right it might have to seek redress
in any other forum, except as otherwise expressly provided in
this Agreement. By election of arbitration as the means for
final settlement of all claims, the parties hereby waive
their respective rights to, and agree not to, xxx each other in
any action in a Federal, State or local court with respect to
such claims, but may seek to enforce in court an arbitration
award rendered pursuant to this Agreement. The parties
specifically agree to waive their respective rights to a trial
by jury, and further agree that no demand, request or motion
will be made for trial by jury.
(b) Indemnification. In the event that
either party breaches this arbitration agreement and attempts to
resolve in court claims covered by this provision, such party
agrees to indemnify the other party for all legal costs and
attorneys’ fees incurred to defend such action in court and
to enforce the provisions of the arbitration clause.
(c) Continuing Nature of Agreement to
Arbitrate. The parties acknowledge and agree that
their obligations under this Section 2.13 survive the
termination of this Agreement and continue after the termination
of the employment relationship between Executive and the Company.
2.14 Opportunity for Independent Counsel and
Advisors. Executive acknowledges that
Executive has had an opportunity to retain and consult with
independent counsel and tax advisors to review this Agreement.
2.15 Application of
Section 409A. Notwithstanding anything
to the contrary set forth herein, any payments and benefits
provided under this Agreement that constitute “deferred
compensation” within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended
(“Code”) and the regulations and other
guidance thereunder and any state law of similar effect
(collectively, “Section 409A”)
shall not commence in connection with Executive’s
termination of employment unless and until Executive has also
incurred a “separation from service” (as such term is
defined in Treasury
Regulation Section 1.409A-1(h)
(“Separation From Service”), unless the
Company reasonably determines that such amounts may be provided
to Executive without causing Executive to incur the additional
20% tax under Section 409A.
It is intended that each installment of severance pay provided
for in this Agreement is a separate “payment” for
purposes of Treasury
Regulation Section 1.409A-2(b)(2)(i).
For the avoidance of doubt, it is intended that severance
payments set forth in this Agreement satisfy, to the greatest
extent possible, the exceptions from the application of
Section 409A provided under Treasury
Regulation Sections 1.409A-1(b)(4),
1.409A-1(b)(5), and 1.409A-1(b)(9).
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If the Company (or, if applicable, the successor entity thereto)
determines that any payments or benefits constitute
“deferred compensation” under Section 409A and
Executive is, on the termination of service, a “specified
employee” of the Company or any successor entity thereto,
as such term is defined in Section 409A(a)(2)(B)(i) of the
Code, then, solely to the extent necessary to avoid the
incurrence of the adverse personal tax consequences under
Section 409A, the timing of the payments and benefits shall
be delayed until the earlier to occur of: (a) the date that
is six months and one day after Executive’s Separation From
Service, or (b) the date of Executive’s death (such
applicable date, the “Specified Employee Initial
Payment Date”). On the Specified Employee Initial
Payment Date, the Company (or the successor entity thereto, as
applicable) shall (i) pay to Executive a lump sum amount
equal to the sum of the payments and benefits that Executive
would otherwise have received through the Specified Employee
Initial Payment Date if the commencement of the payment of such
amounts had not been so delayed pursuant to this Section and
(ii) commence paying the balance of the payments and
benefits in accordance with the applicable payment schedules set
forth in this Agreement.
[Signature
Page Follows]
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In Witness
Whereof, the parties have executed this Executive
Change in Control Severance Benefits Agreement on the day and
year first written above.
BroadSoft, Inc.
| By: |
Name:
Title:
[Executive]
Exhibit A: Form of Release Agreement
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Exhibit A
Form of Release
Agreement
1. Release. In exchange for the payments
and other consideration provided under the Executive Change in
Control Severance Benefits Agreement (“Severance
Agreement”), and other good and valuable
consideration, to which Executive would not otherwise be
entitled, and except as otherwise set forth in this Release
Agreement, Executive hereby generally and completely releases,
acquits and forever discharges the Company, its parents and
subsidiaries, and its and their officers, directors, managers,
partners, agents, servants, employees, attorneys, shareholders,
successors, assigns and affiliates, of and from any and all
claims, liabilities, demands, causes of action, costs, expenses,
attorneys fees, damages, indemnities and obligations of every
kind and nature, in law, equity, or otherwise, both known and
unknown, suspected and unsuspected, disclosed and undisclosed,
arising out of or in any way related to agreements, events, acts
or conduct at any time prior to and including the execution date
of this Release Agreement, including but not limited to: all
such claims and demands directly or indirectly arising out of or
in any way connected with Executive’s employment with the
Company or the termination of that employment; claims or demands
related to salary, bonuses, commissions, stock, stock options,
or any other ownership interests in the Company, vacation pay,
fringe benefits, expense reimbursements, severance pay, or any
other form of compensation; claims pursuant to any federal,
state or local law, statute, or cause of action; tort law; or
contract law. The claims and causes of action Executive is
releasing and waiving in this Release Agreement include, but are
not limited to, any and all claims and causes of action that the
Company, its parents and subsidiaries, and its and their
respective officers, directors, agents, servants, employees,
attorneys, shareholders, successors, assigns or affiliates:
| • | has violated its personnel policies, handbooks, contracts of employment, or covenants of good faith and fair dealing; | |
| • | has discriminated against Executive on the basis of age, race, color, sex (including sexual harassment), national origin, ancestry, disability, religion, sexual orientation, marital status, parental status, source of income, entitlement to benefits, any union activities or other protected category in violation of any local, state or federal law, constitution, ordinance, or regulation, including but not limited to: the Age Discrimination in Employment Act, as amended (the “ADEA”); Title VII of the Civil Rights Act of 1964, as amended; the Maryland Fair Employment Practices Act; Maryland Law on Equal Pay; 42 U.S.C. § 1981, as amended; the Equal Pay Act; the Americans With Disabilities Act; the Employee Retirement Income Security Act, Section 510; and the National Labor Relations Act; and |
| • | has violated any statute, public policy or common law (including but not limited to claims for retaliatory discharge; negligent hiring, retention or supervision; defamation; intentional or negligent infliction of emotional distress and/or mental anguish; intentional interference with contract; negligence; detrimental reliance; loss of consortium to Executive or any member of Executive’s family and/or promissory estoppel). |
Notwithstanding the foregoing, Executive is not releasing any of
the following rights or claims: (i) claims for severance
payments or benefits in accordance with the Severance Agreement,
(ii) claims for vested retirement benefits under any
tax-qualified retirement plan of the Company, (iii) claims
relating to the conversion or continuation of insured welfare
benefits under any employee benefit plan sponsored or maintained
by the Company in which Executive was a participant as of the
date of termination or resignation, (iv) any rights of
indemnification that Executive may have for any liabilities
arising from Executive’s actions within the course and
scope of employment with the Company or within the course and
scope of Executive’s role as a member of the Board of
Directors
and/or
officer of the Company, or (v) any rights or claims that
may arise after the execution date of this Release Agreement.
Also excluded from this Release Agreement are any claims which
cannot be waived by law. Executive is waiving, however,
Executive’s right to any monetary recovery should any
governmental agency or entity, such as the EEOC or the DOL,
pursue any claims on Executive’s behalf. Executive also
acknowledges that the consideration given to Executive in
exchange for the waiver and release in the Release Agreement is
in addition to anything of value to which Executive was already
entitled, and that Executive has been paid for all time worked,
has received all the leave, leaves of absence and leave benefits
and protections for which Executive is eligible, and has not
suffered any on-the-job injury for which Executive has not
already filed a claim. Executive further acknowledges that
Executive has been advised by this writing that:
(a) Executive’s waiver and release does not apply to
any rights or claims that may arise after the execution date of
this Release Agreement; and (b) Executive has been advised
hereby that Executive has the right to consult with an attorney
prior to executing this Release Agreement.
2. ADEA Waiver and Release. Executive
acknowledges that Executive is knowingly and voluntarily waiving
and releasing any rights Executive may have under the ADEA, as
amended. Executive acknowledges that Executive has been advised
by this writing that: (a) Executive has twenty-one
(21) days (except in the event that Executive’s
employment was terminated as part of a group termination, as
determined by the Company, in which case Executive has
forty-five (45) days) to consider this Release Agreement
(although Executive may choose to voluntarily execute this
Release Agreement earlier, in which case, Executive will sign
the Consideration Period waiver below); (b) Executive has
seven (7) days following execution of this Release
Agreement to revoke it; and (c) this Release Agreement
shall not be effective until the date upon which the revocation
period has expired unexercised (the “Effective
Date”), which shall be the eighth day after this
Release Agreement is executed by Executive. Executive may revoke
this Release Agreement during the seven (7) day revocation
period by notifying the Company’s Chief Executive Officer,
Chief Financial Officer, or General Counsel in writing.
3. Confidentiality. The provisions of
this Release Agreement will be held in strictest confidence by
Executive and will not be publicized or disclosed in any manner
whatsoever; provided, however, that: (a) Executive
may disclose this Release Agreement to
Executive’s immediate family; (b) Executive may
disclose this Release Agreement in confidence to
Executive’s attorney, accountant, auditor, tax preparer,
and financial advisor; and (c) Executive may disclose this
Release Agreement insofar as such disclosure may be required by
law.
4. Nondisparagement. Executive agrees not
to disparage the Company, and the Company’s employees,
directors, managers, partners, agents, attorneys and affiliates,
in any manner likely to be harmful to them or their business,
business reputation or personal reputation; provided that
Executive may respond accurately and fully to any question,
inquiry or request for information when required by legal
process.
5. No Admission. This Release Agreement
does not constitute an admission by the Company of any wrongful
action or violation of any federal, state, or local statute, or
common law rights, including those relating to the provisions of
any law or statute concerning employment actions, or of any
other possible or claimed violation of law or right.
6. Breach. Executive agrees that upon any
breach of this Release Agreement by Executive, Executive will
forfeit all amounts paid or owing to Executive under this
Release Agreement. Further, Executive acknowledges that it may
be impossible to assess the damages caused by Executive’s
violation of the terms of Section 1 of this Release
Agreement and further agree that any threatened or actual
violation or breach of those paragraphs of this Release
Agreement will constitute immediate and irreparable injury to
the Company. Executive therefore agrees that any such breach of
this Release Agreement is a material breach of this Release
Agreement, and, in addition to any and all other damages and
remedies available to the Company upon Executive’s breach
of this Release Agreement, the Company shall be entitled to an
injunction to prevent Executive from violating or breaching this
Release Agreement. Executive agrees that if the Company is
successful in whole or part in any legal or equitable action
against Executive under this Section 6, Executive agrees to
pay all of the costs, including reasonable attorney’s fees,
incurred by the Company in enforcing the terms of this Release
Agreement
7. Miscellaneous. This Release Agreement
constitutes the complete, final and exclusive embodiment of the
entire agreement between Executive and the Company with regard
to this subject matter. It is entered into without reliance on
any promise or representation, written or oral, other than those
expressly contained herein, and it supersedes any other such
promises, warranties or representations. This Release Agreement
may not be modified or amended except in a writing signed by
both Executive and a duly authorized officer of the Company.
This Release Agreement will bind the heirs, personal
representatives, successors and assigns of both Executive and
the Company, and inure to the benefit of both Executive and the
Company, their heirs, successors and assigns. If any provision
of this Release Agreement is determined to be invalid or
unenforceable, in whole or in part, this determination will not
affect any other provision of the Release Agreement and the
provision in question will be modified by the court so as to be
rendered enforceable. This Release Agreement will be deemed to
have been entered into and will be construed and enforced in
accordance with the laws of the State of Maryland as applied to
contracts made and to be performed entirely within the State of
Maryland.
BroadSoft,
Inc.
| By: |
Name:
Title:
Title:
Executive:
[Name of Executive]
Date:
CONSIDERATION
PERIOD
I,
,
understand that I have the right to take at least 21 days
(or 45 days if Executive’s employment is being
terminated as part of a group termination) (the
“Consideration Period”) to consider
whether to sign this Release Agreement, which I received on
,
20 . If I elect to sign this Release Agreement
before the Consideration Period has passed, I understand I am to
sign and date below this paragraph to confirm that I knowingly
and voluntarily agree to waive the Consideration Period.
Agreed:
Employee Signature
Date
