Exhibit 10.21
BROOKTROUT, INC.
EXECUTIVE RETENTION AGREEMENT
This Executive Retention Agreement, by and between Brooktrout, Inc., a
Massachusetts corporation (the "Company"), and R. Xxxxxx 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 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 12 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 12 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/ Xxxx X. Xxxxx
-------------------------------------
President and Chief Executive Officer
/s/ R. Xxxxxx X'Xxxxx
-----------------------------------------
R. XXXXXX X'XXXXX
Address:
0 Xxxxxxx Xxxx
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Xxxxx, XX 00000
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-----------------------------------------
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