EXHIBIT 10.35
Network Engines, Inc.
Executive Retention Agreement
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THIS EXECUTIVE RETENTION AGREEMENT by and between Network Engines,
Inc., a Delaware corporation (the "Company"), and _________________ (the
"Executive") is made as of __________, 2001 (the "Effective Date").
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, various business uncertainties may arise from time
to time and that such possibility, and the concerns and questions which 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 the Company's key personnel without
distraction from such uncertainties, including 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, whether before or after 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
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in any one or more of subsections (a) through (d) 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)or14(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 (withinthe meaning of Rule 13d-3 promulgated under the
Exchange Act) 30% or more 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
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following acquisitions shall not constitute a Change in Control: (i) any
acquisition directly from the Company (excluding an acquisition pursuant to
the exercise, conversion orexchange 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 which complies with clauses (i) and (ii)
of subsection (c) of this Section 1.1; or
(b) such time as the Continuing Directors (as defined below) 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)
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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; or
(c) 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, without limitation, a corporation which 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 the Acquiring Corporation or any employee benefit plan (or
related trust) maintained or sponsored by the Company or by the Acquiring
Corporation) beneficially owns, directly or indirectly, 30% 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
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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1.2 "Change in Control Date" means the first date during the Term (as
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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 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:
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(a) the Executive's failure to substantially perform his assigned
duties (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 20 days after a written
demand for substantial performance is received by the Executive from the Board
of Directors of the Company which specifically identifies the manner in which
the Board of Directors believes the Executive has not substantially performed
the Executive's duties; or
(b) the Executive's engagement in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company.
1.4 "Good Reason" means the occurrence, without the Executive's
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written consent, of any of the events or circumstances set forth in clauses (a)
through (e) below. 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).
(a) the assignment to the Executive of duties inconsistent in any
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority or responsibilities in effect on
the Effective Date, or any other action or omission by the Company which 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 Effective Date or as the same was or may be increased
thereafter from time to time;
(c) a change by the Company in the location at which the Executive
performs his principal duties for the Company to a new location that is both (i)
outside a radius of 50 miles from the Executive's principal residence
immediately prior to the Effective Date and (ii) more than 35 miles from the
location at which the Executive performed his principal duties for the Company
immediately prior to the Effective Date;
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(d) 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; or
(e) a purported termination of the Executive's employment which
is not effected pursuant to a Notice of Termination satisfying the requirements
of Section 3.2(a).
The Executive's right to terminate his employment for Good Reason shall not
be affected by his incapacity due to physical or mental illness.
1.5 "Disability" means the Executive's absence from the full-time
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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 which
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.
2. Term of Agreement. This Agreement, and all rights and obligations of the
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parties hereunder, shall take effect upon the Effective Date and shall expire on
the date two years after the Effective Date. "Term" shall mean the period
commencing as of the Effective Date and continuing in effect through the date
that is two years after the Effective Date.
3. Employment Status; Termination Following Change in Control.
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3.1 Not an Employment Contract. The Executive acknowledges that this
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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.
3.2 Termination of Employment.
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(a) Any termination of the Executive's employment by the Company
or by 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 10 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 which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or
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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)
which constitute(s) Cause.
4. Benefits to Executive.
4.1 Stock Acceleration. If (a) a Change in Control Date or an
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Acquisition Event occurs during the Term on or before the Date of Termination
and (b) 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
during the Term, then, effective upon the Date of Termination, (x) each
outstanding option to purchase shares of Common Stock of the Company held by the
Executive shall become immediately exercisable in full, and (y) each outstanding
restricted stock award shall be deemed to be fully vested and will no longer be
subject to any right of repurchase by the Company. If (a) neither a Change of
Control Date nor an Acquisition Event occurs on or before the Date of
Termination and (b) 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 during the Term, then (x) the vesting of (i) each outstanding option
to purchase shares of the Company held by the Executive and (ii) each
outstanding restricted stock award shall be determined as though the Executive
remained employed by the Company until six months after the Date of Termination,
and (y) each outstanding option to purchase shares of the Company held by the
Executive shall remain exercisable (to the extent vested) for a period of six
months after the Date of Termination. For purposes of this Section 4.1, an
Acquisition Event is the acquisition by the Company of all of the outstanding
equity interests of a company or all or substantially all of the assets or
business of a company.
4.2 Compensation. If the Executive's employment with the Company
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terminates during the Term, the Executive shall be entitled to the following
benefits:
(a) Termination Without Cause or for Good Reason. If the
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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 during the
Term, 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, and (B) the amount of any compensation previously
deferred by the Executive (together with any accrued interest or earnings
thereon) and any accrued vacation pay, in each case to the extent not previously
paid (the sum of the amounts described in clauses (A) and (B) shall be
hereinafter referred to as the "Accrued Obligations"); and
(2) the amount equal to (A) one-half (1/2) multiplied by
(B) the Executive's highest annual base salary during the three year period
prior to the Effective Date.
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(ii) for six 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 which 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 Effective Date or,
if more favorable to the Executive and his 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
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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 his 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 his 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 provided or which 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 (such other amounts and benefits shall be hereinafter referred to as
the "Other Benefits");
(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 six months after the Date of Termination; and
(v) if a Change in Control Date occurs during the Term and on or
before the Date of Termination, the Company shall make an additional lump sum
payment to the Executive equal to the sum of (A) the product of (x) the annual
bonus paid or payable (including any bonus or portion thereof which 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
(B) one-half multiplied by the Executive's highest annual bonus during the
three-year period prior to the Effective Date.
(b) Resignation Without Good Reason; Termination for Death or
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Disability. If the Executive voluntarily terminates his employment during the
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Term, 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
during the Term, then the Company shall (i) pay the Executive (or his estate, if
applicable), in a lump sum in cash within 30 days after the Date of Termination,
the Accrued Obligations and (ii) timely pay or provide to the Executive the
Other Benefits.
(c) Termination for Cause. If the Company terminates the Executive's
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employment with the Company for Cause during the Term, 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 (A) the Executive's base salary through the Date of
Termination and (B) the amount of any compensation previously deferred by the
Executive, in each case to the extent not previously
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paid, and (ii) timely pay or provide to the Executive the Other Benefits.
(d) Severance Agreement. As a condition of receipt of any
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payments under Section 4.2(a)(i), the Executive shall be required to sign a
severance agreement and release prepared by and provided by the Company (the
"Severance Agreement") and to abide by the provisions of the Severance
Agreement. Among other things, the Severance Agreement shall contain a release
and waiver of any claims the employee or his or her representative may have
against the Company, its affiliates and/or representatives, and shall release
those entities and persons from any liability for such claims including, but not
limited to, all employment discrimination claims.
4.3 Taxes.
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(a) Notwithstanding any other provision of this Agreement, except
as set forth in Section 4.3(b), in the event that the Company undergoes a
"Change in Ownership or Control" (as defined below) , the Company shall not be
obligated to provide to the Executive a portion of any "Contingent Compensation
Payments" (as defined below) that the Executive would otherwise be entitled to
receive to the extent necessary to eliminate any "excess parachute payments" (as
defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended
(the "Code")) for the Executive. For purposes of this Section 4.3, the
Contingent Compensation Payments so eliminated shall be referred to as the
"Eliminated Payments" and the aggregate amount (determined in accordance with
Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor
provision) of the Contingent Compensation Payments so eliminated shall be
referred to as the "Eliminated Amount."
(b) Notwithstanding the provisions of Section 4.3(a), no such
reduction in Contingent Compensation Payments shall be made if (i) the
Eliminated Amount (computed without regard to this sentence) exceeds (ii) the
aggregate present value (determined in accordance with Proposed Treasury
Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of
the amount of any additional taxes that would be incurred by the Executive if
the Eliminated Payments (determined without regard to this sentence) were paid
to him (including, state and federal income taxes on the Eliminated Payments,
the excise tax imposed by Section 4999 of the Code payable with respect to all
of the Contingent Compensation Payments in excess of the Executive's "base
amount" (as defined in Section 280G(b)(3) of the Code), and any employment
taxes). The override of such reduction in Contingent Compensation Payments
pursuant to this Section 4.3(b) shall be referred to as a "Section 4.3(b)
Override." For purpose of this paragraph, if any federal or state income taxes
would be attributable to the receipt of any Eliminated Payment, the amount of
such taxes shall be computed by multiplying the amount of the Eliminated Payment
by the maximum combined federal and state income tax rate provided by law.
(c) For purposes of this Section 4.3 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.
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(ii) "Contingent Compensation Payment" shall mean any
payment (or benefit) in the nature of compensation that is made or made
available (under 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.
(d) Any payments or other benefits otherwise due to the
Executive following a Change in Ownership or Control that could reasonably be
characterized (as determined by the Company) as Contingent Compensation Payments
(the "Potential Payments") shall not be made until the dates provided for in
this Section 4.3(d). Within 30 days after each date on which the Executive first
becomes entitled to receive (whether or not then due) a Contingent Compensation
Payment relating to such Change in Ownership or Control, the Company shall
determine and notify the Executive (with reasonable detail regarding the basis
for its determinations) (i) which Potential Payments constitute Contingent
Compensation Payments, (ii) the Eliminated Amount and (iii) whether the Section
4.3(b) Override is applicable. 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 he agrees with the Company's
determination pursuant to the preceding sentence, in which case he shall
indicate, if applicable, which Contingent Compensation Payments, or portions
thereof (the aggregate amount of which, determined in accordance with Proposed
Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision, shall
be equal to the Eliminated Amount), shall be treated as Eliminated Payments or
(B) that he disagrees with such determination, in which case he shall set forth
(i) which Potential Payments should be characterized as Contingent Compensation
Payments, (ii) the Eliminated Amount, (iii) whether the Section 4.3(b) Override
is applicable, and (iv) which (if any) Contingent Compensation Payments, or
portions thereof (the aggregate amount of which, determined in accordance with
Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor
provision, shall be equal to the Eliminated Amount, if any), shall be treated as
Eliminated Payments. 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 and the Contingent Compensation Payments that shall
be treated as Eliminated Payments shall be determined by the Company in its
absolute discretion. If the Executive states in the Executive Response that he
agrees with the Company's determination, the Company shall make the Potential
Payments to the Executive within three business days following delivery to the
Company of the Executive Response (except for any Potential Payments which are
not due to be made until after such date, which Potential Payments shall be made
on the date on which they are due). If the Executive states in the Executive
Response that he disagrees with the Company's determination, then, for a period
of 60 days following delivery of the Executive Response, the Executive and the
Company shall use good faith efforts to resolve such dispute. If such dispute is
not resolved within such 60-day period, such dispute 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. The Company
shall, within three business days following delivery to the Company of the
Executive Response, make to the Executive those Potential Payments as to which
there is no dispute between the Company and the Executive regarding whether they
should be made (except for any such Potential Payments which are not due to be
made until after such date, which Potential Payments shall be made on the date
on which they are due). The balance of the Potential Payments shall be made
within three business days following the resolution of such dispute. Subject to
the limitations
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contained in Sections 4.3(a) and (b) hereof, the amount of any payments to
be made to the Executive following the resolution of such dispute shall be
increased by amount of the accrued interest thereon computed at the prime rate
announced from time to time by the Wall Street Journal, compounded monthly from
the date that such payments originally were due.
(e) The provisions of this Section 4.3 are intended to apply
to any and all payments or benefits available to the Executive under this
Agreement or any other agreement or plan of the Company under which the
Executive receives Contingent Compensation Payments.
5. Disputes.
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5.1 Settlement of Disputes; Arbitration. All claims by the Executive
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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
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extent permitted by law, all legal, accounting and other fees and expenses which
the Executive may reasonably incur as a result of any claim or contest 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, but only if the Executive prevails in such
claim or contest.
6. Successors.
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6.1 Successor to Company. The Company shall require any successor
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(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 which 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
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of and
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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
his 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
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hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company, at
00 Xxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx, 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 three 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
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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
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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
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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 which may be available, the Executive
shall have the right to such specific performance and injunctive relief.
8.4 Governing Law. The validity, interpretation, construction and
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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
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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
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of which shall be deemed to be an original but both of which together shall
constitute one and the
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same instrument.
8.7 Tax Withholding. Any payments provided for hereunder shall be paid
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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
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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.
8.9 Amendments. This Agreement may be amended or modified only by a
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written instrument executed by both the Company and the Executive.
8.10 Executive's Acknowledgements. The Executive acknowledges that he:
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(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 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.
NETWORK ENGINES, INC.
By:__________________________________
Title:_______________________________
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[NAME OF EXECUTIVE]
Address:
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