Executive Retention Agreement - Netezza Corp.
NETEZZA CORPORATION
Executive Retention Agreement
THIS EXECUTIVE RETENTION AGREEMENT by and between Netezza Corporation, a
Delaware corporation (the "Company"), and _________________ (the "Executive") is
made as of March, 2007 (the "Effective Date").
WHEREAS, the Company recognizes that the possibility of a termination
without cause or for good reason may also result in the departure or distraction
of the Employee to the detriment of the Company and its stockholders, and
WHEREAS, the Company recognizes that the possibility of a change in control
of the Company exists and that such possibility, and the uncertainty 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 the events and circumstances referred to above.
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.
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 (c) 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) and that also
constitutes a "change of control" within the meaning of Section 409A of the
United States Internal Revenue Code of 1986, as amended, and the guidance issued
thereunder ("Section 409A"):
(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) 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
following acquisitions shall not constitute a
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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 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)
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 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).
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1.2 "Change in Control Date" means the first date 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 good faith finding by the Company that:
(a) the Executive has breached any of his or her material legal
or contractual obligations to the Company (other than as a result of incapacity)
which breach (i) has not been cured by the Executive within 10 business days
following written notice by the Company to the Executive notifying him or her of
such breach and (ii) would have a material adverse effect on the Company; or
(b) the Executive has engaged in gross or persistent misconduct
with respect to the Company; or
(c) the Executive has been convicted of or pleaded guilty or nolo
contendere to (i) any misdemeanor relating to the affairs of the Company which
is injurious to the Company or (ii) any felony.
1.4 "Good Reason" means the occurrence, without the Executive's
written consent, of any of the following:
(a) a reduction of more than 15% in the Executive's annual base
salary;
(b) a significant diminution in the Executive's authority and
duties, such that the Executive's employment duties and responsibilities are no
longer of an executive nature; or
(c) the relocation of the Executive's principal place of
employment to a location that is more than 30 miles further away from the
Executive's residence than is the Executive's current principal place of
employment.
For purposes of this Agreement, any good faith determination of "Good
Reason" made by the Executive following a Change in Control shall be conclusive,
binding and final.
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 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.
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2. Term of Agreement. This Agreement, and all rights and obligations of the
parties hereunder, shall take effect upon the Effective Date and shall continue
in effect until the fulfillment by the Company of all of its obligations under
Sections 4 and 5.2. Notwithstanding anything else to the contrary in this
Agreement, any provision of this Agreement which provides the Executive with
payment rights not previously held by the Executive shall be effective with
respect to a voluntary termination (including a termination for Good Reason)
only if (x) the date of such termination occurs after the earlier of (i) the
date that is at least 12 months and one day after the date of this Agreement or
(ii) the first date upon which said provisions may be effective with respect to
such termination without causing payments or benefits hereunder to constitute
nonqualified deferred compensation subject to Section 409A, and (y) the
Executive remains continually employed by the Company prior to such termination
date.
3. Employment Status; Notice of Termination of Employment.
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.
3.2 Notice of Termination of Employment.
(a) Any termination of the Executive's employment by the Company
or by the Executive (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 whether the termination is for Cause or Good Reason, (ii) to
the extent applicable, set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination for Cause or Good
Reason 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 90 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.
(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 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 Severance Benefits. 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
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Good Reason, then the Executive shall be entitled to the following benefits,
subject to Section 4.5:
(a) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the sum of (i) the Executive's base
salary through the Date of Termination, (ii) any accrued bonus which the
Executive is entitled to receive as of the Date of Termination, (iii) 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
(i), (ii), and (iii) shall be hereinafter referred to as the "Accrued
Obligations");
(b) for 12 months after the Date of Termination, the Company
shall continue to pay to the Executive, in accordance with its normal payroll
practices, compensation at an annual rate equal to the sum of (i) his or her
highest annual base salary during the three-year period prior to the Date of
Termination plus (ii) the amount of the incentive bonus or bonuses paid to the
Executive for the most recently completed fiscal year for which all such bonuses
to which the Executive is entitled have been paid [for Mr. Baum's agreement
only: provided that if the Date of Termination is on or prior to the payment of
bonuses for the fiscal year ending January 31, 2008, the amount referred to in
this clause (ii) shall be deemed to be $125,000]; and
(c) for 12 months after the Date of Termination, the Company
shall continue to provide to the Executive medical and dental benefits on
substantially the same terms as were provided to the Executive on the Date of
Termination; provided, however, that if the Executive becomes reemployed with
another employer and is eligible to receive a particular type of benefits from
such employer on terms at least as favorable to the Executive and his or her
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 or her
family.
4.2 Resignation without Good Reason; Termination for Cause or for
Death or Disability. If the Executive voluntarily terminates his or her
employment with the Company, excluding a termination for Good Reason, or the
Executive's employment with the Company is terminated by the Company for Cause
or by reason of the Executive's death or Disability, then the Company shall pay
the Executive (or his or her estate, if applicable), in a lump sum in cash
within 30 days after the Date of Termination, the Accrued Obligations.
4.3 Stock Acceleration. If the Executive's employment is terminated by
the Company without Cause or by the Executive for Good Reason following a Change
in Control, then all stock options, restricted stock or other equity awards
subject to vesting that are held by the Executive as of such employment
termination shall become vested in full effective immediately prior to such
employment termination.
4.4 Taxes.
(a) Notwithstanding any other provision of this Agreement, except
as set forth in Section 4.4(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
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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 4.4, the Contingent Compensation Payments so
eliminated shall be referred to as the "Eliminated Payments" and the aggregate
amount (determined in accordance with 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 4.4(a), no such
reduction in Contingent Compensation Payments shall be made if (i) the
Eliminated Amount (computed without regard to this sentence) exceeds (ii) 110%
of the aggregate present value (determined in accordance with 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 or her (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 withholding taxes). The override of such reduction in Contingent
Compensation Payments pursuant to this Section 4.4(b) shall be referred to as a
"Section 4.4(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 4.4 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 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 4.4(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
4.4(b) Override is applicable. Within
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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 or she agrees with the Company's determination pursuant to the preceding
sentence, in which case he or she shall indicate, if applicable, which
Contingent Compensation Payments, or portions thereof (the aggregate amount of
which, determined in accordance with 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 or she disagrees with
such determination, in which case he or she shall set forth (i) which Potential
Payments should be characterized as Contingent Compensation Payments, (ii) the
Eliminated Amount, (iii) whether the Section 4.4(b) Override is applicable, and
(iv) which (if any) Contingent Compensation Payments, or portions thereof (the
aggregate amount of which, determined in accordance with 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 or she 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 or she
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
contained in Sections 4.4(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 the amount of the accrued interest thereon computed at the prime
rate announced from time to time by Silicon Valley Bank, compounded monthly from
the date that such payments originally were due.
(e) The provisions of this Section 4.4 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.
4.5 Section 409A.
(a) The Company and the Executive intend that this Agreement and
any deferral of compensation pursuant to its terms comply with the requirements
of Section
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409A so that any payments hereunder are not subject to the taxes and interest
imposed by such section. Accordingly, the parties agree that:
(i) No payments that may be made pursuant to this Agreement
that constitute "nonqualified deferred compensation" within the meaning of
Section 409A may be accelerated or deferred by the Company or by the Executive
to the extent that such acceleration or deferral would cause the payment to be
subject to tax or interest under Section 409A.
(ii) Notwithstanding anything else to the contrary in this
Agreement, in the event the Executive is a "specified employee" within the
meaning of Section 409A:
(1) to the extent that the Executive would otherwise be
entitled under this Agreement to any payment during the six months beginning on
the date of the Executive's termination of employment that constitutes
nonqualified deferred compensation under Section 409A, such payment will be paid
to the Executive within ten (10) business days following the earlier of the
Executive's death or the date that is six months after the date of such
termination; and
(2) to the extent that the Executive would otherwise be
entitled under this Agreement to any benefit (other than a payment) during the
six months beginning on the date of the Executive's termination of employment
that constitutes nonqualified deferred compensation under Section 409A, (i) such
benefit will be delayed until the date that is six months after the date of such
termination and the applicable period for such benefit will be reduced by six
months, (ii) the Company will pay to the Executive within ten (10) business days
following the date that is six months after the date of such termination a lump
sum cash payment equal to the lowest cost that the Executive would incur on an
after-tax basis to obtain such benefit for him (including family or dependent
coverage, if applicable) on an individual basis during such six month period.
(b) The Company and the Executive further agree to make such
revisions to this Agreement as may be required to conform the provisions of this
Agreement to the requirements of Section 409A. In any event, the Company makes
no representation or warranty and shall have no liability to the Executive or
any other person if the payments and/or benefits under this Agreement are
determined to constitute deferred compensation subject to Section 409A but do
not satisfy the conditions of such section.
4.6 Exclusive Severance Benefits. The making of the payments and the
provision of the benefits by the Company to the Executive under this Agreement
shall constitute the entire obligation of the Company to the Executive as a
result of the termination of his or her employment, and the Executive shall not
be entitled to additional payments or benefits as a result of such termination
of employment under any other plan, program, policy, practice, contract or
agreement of the Company or its subsidiaries.
4.7 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
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otherwise. Further, except as set forth in Section 4.1(c), 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.
4.8 Release. The obligation of the Company to make the payments and
provide the benefits to the Executive under clauses (b) and (c) of Section 4.1
is conditioned upon the Executive signing a release of claims, in a customary
and reasonable form requested by the Company (the "Executive Release"), within
such period of time as the Company may specify following the Date of
Termination, and upon the Executive Release becoming effective in accordance
with its terms. The Company shall not be obligated to make any payments to the
Executive under Section 4.1(b) until the Executive Release has become effective;
provided that at such time as the Executive Release becomes effective, the
Company shall promptly pay to the Executive any payments that would otherwise
have been made to the Executive between the Date of Termination and date on
which the Executive Release becomes effective.
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 and shall be in writing. Any denial by the Board 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 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 which
the Executive may reasonably incur as a result of any claim or contest by the
Company, the Executive or others regarding the validity, enforceability or
applicability of any provision of 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. This Agreement shall be binding upon the
Company and its successors and assigns (including the resulting or acquiring
company in a Business Combination). In the event of a Business Combination (and
provided that, in the case of a Business Combination structured as the sale or
other disposition of all or substantially all of the assets of the Company, the
Executive accepts employment with the Acquiring Corporation effective on or
about the Change in Control Date), all references in this Agreement to the
Company shall instead be deemed to refer to the Acquiring Corporation.
6.2 Successor to Executive. This Agreement shall inure to the benefit
of and be enforceable by the Executive's duly authorized personal or legal
representatives, executors,
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administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to the Executive or
his or her 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, as appropriate.
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 (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
200 Crossing Boulevard, Framingham, Massachusetts 01702, and to the Executive at
the address set forth below his or her name on the signature page hereto (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 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.
8.4 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.
8.5 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.
8.6 Tax Withholding. Any payments provided for hereunder shall be paid
net of any applicable tax withholding required under federal, state or local
law.
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8.7 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. This agreement supplements and modifies the vesting provisions in any
current or future stock option, restricted stock or equity award agreement
between the Executive and the Company; provided that if any such agreement has
acceleration-of-vesting provisions that are more favorable to the Executive than
the terms of this agreement, such more favorable provisions shall apply.
8.8 Amendments. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Executive.
8.9 Executive's Acknowledgements. The Executive acknowledges that he
or she: (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 WilmerHale 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
NETEZZA CORPORATION
By:
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Name:
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Title:
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[Name of Executive]
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Address:
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