CHANGE OF CONTROL AND RETENTION AGREEMENT
Exhibit
10.5
This
Change of Control and Retention Agreement (the “Agreement”) is made and entered
into as of March 13, 2006, by and between Interactive Intelligence, Inc.,
an
Indiana corporation (the “Company”), and {Executive Name} (the “Executive”).
Recitals:
WHEREAS,
the Executive is a key employee of the Company who possesses valuable
proprietary knowledge of the Company, its business and operations and the
markets in which the Company competes; and
WHEREAS,
the Company draws upon the knowledge, experience, expertise and advice of
the
Executive to manage its business for the benefit of the Company’s shareholders;
and
WHEREAS,
the Company recognizes that, if a Change of Control were to occur, the resulting
uncertainty regarding the consequences of such an event could adversely affect
the performance of, and the Company’s ability to attract and retain, its key
employees, including the Executive; and
WHEREAS,
the Company believes that the existence of this Agreement will serve as an
incentive to the Executive to remain in the employ of the Company, and would
enhance the Company’s ability to call on and rely upon the Executive if a Change
of Control were to occur; and
WHEREAS,
the Company and the Executive desire to enter into this Agreement to encourage
the Executive to continue to devote the Executive’s full attention and
dedication to the success of the Company, and to provide specified compensation
and benefits to the Executive in the event of a Termination Upon Change of
Control pursuant to the terms of this Agreement.
NOW,
THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
| 1. |
PURPOSE
|
The
purpose of this Agreement is to provide specified compensation and benefits
to
the Executive in the event of his Termination Upon Change of Control. Subject
to
the terms of any applicable written employment agreement between Company
and the
Executive, either the Executive or Company may terminate the Executive’s
employment at any time for any reason.
| 2. |
TERMINATION
UPON CHANGE OF CONTROL
|
2.1
Prior
Obligations.
In the
event of the Executive’s Termination Upon Change of Control, the Executive shall
be entitled to the benefits described in this Section 2.1.
2.1.1
Accrued
Salary and Vacation.
All
salary and accrued vacation earned through the date of the Executive’s
Termination Upon Change of Control shall be paid to Executive within thirty
(30)
days after the date on which the Executive's employment terminates (the
“Termination Date”).
2.1.2
Accrued
Bonus Payment.
The
Executive shall receive a lump sum payment of any bonus amounts (a) attributable
to any of the Company’s completed fiscal periods for which a bonus was earned
but is unpaid on the Termination Date, and (b) attributable to any uncompleted
fiscal period for which a potential bonus award exists, to the extent that
any
such bonus was earned and is unpaid on the Executive’s Termination Upon Change
of Control, in each case within thirty (30) days after the Termination Date.
For
purposes of this Section 2.1.2, the amount of bonus "earned" for an uncompleted
fiscal period shall be based on the level of performance achieved as of the
Termination Date.
2.1.3
Expense
Reimbursement.
Within
ten (10) days following submission to the Company of proper expense reports
by
the Executive, the Company shall reimburse the Executive for all expenses
incurred by the Executive in connection with the business of the Company
prior
to the Termination Date, consistent with the Company’s expense reimbursement
policy in effect at the time each such expense was incurred.
2.2
Additional
Cash Severance Benefits.
In the
event of the Executive’s Termination Upon Change of Control, the Executive shall
be entitled to receive from the Company an amount equal to: (a) if the
Termination Date is prior to or on the effective date of the Change of Control,
the Executive's Base Salary; or (b) if the Termination Date is after the
effective date of the Change of Control, Executive's Base Salary, multiplied
by
a fraction, the numerator of which is that number of days equal to (i) 365
minus
(ii) the number of days between the effective date of the Change of Control
and
the Termination Date, and the denominator of which is 365. Subject to the
following two sentences, the amount set forth in this Section 2.2 shall be
paid
in cash in a single lump sum payment within thirty (30) days following the
Termination Date or, if later, the effective date of the Change of Control.
The
payment described in this Section 2.2 may not be made before the expiration
of
the Revocation Period described in Section 5.3, and it will not be made in
the
event the Executive revokes the General Release described in Section 5.3
within
the Revocation Period. If the Executive is a "specified employee" as defined
in
Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended
(the
"Code"), the payment described in this Section 2.2 will not be made before
the
date that is six months after the Termination Date (or, if earlier, the date
of
the Executive's death).
2.3
Stock
Options and Other Equity Grants.
In the
event of the Executive’s Termination Upon Change of Control, then all
outstanding stock options and any other then unvested or restricted equity
grant
then held by the Executive (other than any grants the vesting of which is
contingent upon specified performance criteria being met) that by their original
terms would have become vested or exercisable, or upon which the restrictions
would have lapsed, within two years following the Termination Upon Change
of
Control, shall have their vesting or exercisability accelerated and any
restrictions thereon shall lapse, such that (a) 100% of all shares subject
to
each of the Executive’s options that by their original terms would have become
vested or exercisable within two years following the Termination Upon Change
of
Control, shall fully vest and become exercisable and shall remain so exercisable
in accordance with their terms, and (b) 100% of all shares of each of the
Executive’s other equity grants that by their original terms would have become
vested and the restrictions thereon would have lapsed within two years following
the Termination Upon Change of Control, shall vest and all restrictions thereon
shall lapse. If the Termination Upon Change of Control is such that the
Termination Date occurs during the period commencing on or after the date
that
the Company first publicly announces a definitive agreement designed to result
in a Change of Control, then all outstanding stock options and any other
then
unvested or restricted equity grant then held by the Executive shall remain
in
effect and not be cancelled until such time as (i) the Change of Control
occurs,
in which case such options and other unvested or restricted equity grants
shall
be treated as described in the first sentence of this Section 2.3; or (ii)
the
definitive agreement is terminated prior to the Change of Control, in which
case
the options and other unvested or restricted equity grants will terminate
and be
forfeited on the date of the termination of the definitive agreement; provided,
however, that in no event may any options remain outstanding after the
applicable expiration date of the option. Notwithstanding the foregoing,
with
regard to any equity grant the vesting of which is contingent upon specified
performance criteria being met, the effect of the Executive's Termination
Upon
Change of Control shall be determined pursuant to the specific provisions
of the
applicable award agreement.
2.4
COBRA.
In the
event of the Executive’s Termination Upon Change of Control, the Company shall
offer the Executive and his eligible family members the opportunity to elect
to
continue their medical, dental and vision coverage (if any) under the Company's
benefit plans pursuant to the continuation coverage requirements of the
Consolidated Budget Reconciliation Act of 1985, as amended (“COBRA”). The
Executive shall be responsible for paying the required monthly premiums for
that
coverage, but, at the time of payment of the cash severance benefits described
in Section 2.2, the Company shall also pay to the Executive a lump sum cash
stipend equal to twelve (12) times the monthly premium then charged to qualified
beneficiaries for COBRA continuation coverage for the Executive (if then
covered) and any family members then covered under the Company’s medical,
dental, and vision plans (if any). The Executive may, but is not obligated
to,
use the stipend for the payment of COBRA premiums. The Company will pay the
stipend to the Executive whether or not the Executive or anyone in his family
elects COBRA continuation coverage, whether or not the Executive continues
COBRA
continuation coverage for a full 12 months, and whether or not the Executive
receives medical, dental, or vision benefits from a subsequent employer during
the period in which he would otherwise be entitled to receive COBRA continuation
coverage.
2.5
Indemnification.
In the
event of the Executive’s Termination Upon Change of Control, (a) the Company
shall continue to indemnify the Executive against all claims related to actions
arising prior to the termination of the Executive’s employment to the fullest
extent permitted by law or provided in the organizational documents of the
Company or by contract, and (b) if the Executive was covered by the Company’s
directors’ and officers’ insurance policy, or an equivalent thereto (the
“D&O Insurance Policy”), immediately prior to the Change of Control, the
Company or its Successor shall continue to provide coverage under a D&O
Insurance Policy for twenty-four (24) months following the Executive’s
Termination Upon Change of Control on substantially the same terms of the
D&O Insurance Policy in effect immediately prior to the Change of Control,
unless the annual cost
of
such “tail” D&O Insurance Policy is not available at
a cost
not greater than 200% of the annual premium paid on the date of the Change
of
Control by the Company for such insurance (the “Insurance Cap”), in which case
the Company shall cause to be obtained as much comparable insurance for as
long
a period (not to exceed twenty-four (24) months following the effective date
of
the Change of Control)
as is
available for a cost not to exceed the Insurance Cap;
provided,
however,
that if
the agreement relating to the Change of Control provides terms at least as
favorable as those in this subsection (b) with respect to a "tail" D&O
Insurance Policy for the benefit of the Executive, then the terms of such
agreement shall control and this subsection (b) shall be of no further force
or
effect.
| 3. |
FEDERAL
EXCISE TAX UNDER SECTION 280G
|
3.1
Avoidance
of Excise Tax.
If any
amounts payable to the Executive under this Agreement or otherwise would
be
subject to the excise tax or denial of deduction imposed by Sections 280G
and
4999 of the Code (an "Excess Parachute Payment"), then the amounts payable
under
this Agreement or otherwise shall be reduced, or portions of applicable options
or then unvested or restricted equity awards shall not vest or become
exercisable as provided herein, in order to avoid any Excess Parachute
Payment.
3.2
Calculation
by Independent Public Accountants.
Unless
the Company and the Executive otherwise agree in writing, any calculation
of the
amount of any Excess Parachute Payments shall be made in writing by the
Company’s independent public accountants (the “Accountants”), whose
determination, absent manifest error, shall be conclusive and binding upon
the
Executive and the Company. For purposes of making such calculation, the
Accountants may rely on reasonable, good faith interpretations concerning
the
application of Sections 280G and 4999 of the Code. The Company and the Executive
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make the required calculation.
The Company shall bear all fees and expenses the Accountants may charge in
connection with such calculation.
| 4. |
DEFINITIONS
|
4.1
Capitalized
Terms Defined.
Capitalized terms used in this Agreement shall have the meanings set forth
in
this Section 4, unless the context clearly requires a different meaning.
4.2
“Base
Salary”
means
the greater of (a) the annual salary of the Executive in effect immediately
prior to the Change of Control, or (b) the annual salary of the Executive
in
effect immediately prior to the Termination Date.
4.3
“Cause”
means a
good faith determination, on a reasonable basis, by not less than two thirds
of
the members of the Board of Directors of the Company (the “Board”) that the
Executive:
(a)
willfully failed to follow the lawful written directions of the Board of
Directors of the Company provided to the Executive prior to such failure;
provided that no termination for such Cause shall occur unless the Executive:
(i) has been provided with notice, specifying such willful failure in reasonable
detail, of the Company’s intention to terminate the Executive for Cause; and
(ii) has failed to cure or correct such willful failure within thirty (30)
days
of receiving such notice;
(b)
engaged in gross misconduct which is materially detrimental to the Company;
provided that no termination for such Cause shall occur unless the Executive:
(i) has been provided with notice, specifying such gross misconduct in
reasonable detail, of the Company’s intention to terminate the Executive for
Cause; and (ii) has failed to cure or correct such gross misconduct within
thirty (30) days of receiving such notice;
(c)
willfully failed to comply in any material respect with the Company’s
Confidentiality and/or Proprietary Rights Agreement, the Company’s ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ policy, or any other reasonable policies of the Company, in each
case
provided, or reasonably made available, to the Executive prior to such failure,
where non-compliance would be materially detrimental to the Company; provided
that no termination for such Cause shall occur unless the Executive: (i)
has
been provided with notice, specifying such willful failure in reasonable
detail,
of the Company’s intention to terminate the Executive for such Cause, and (ii)
has failed to cure or correct such willful failure within thirty (30) days
of
receiving such notice; or
(d)
has
been convicted of a felony (other than a felony arising from a violation
of a
motor vehicle law) or a crime involving moral turpitude, or it has been
determined by a court that he or she committed a fraud, against the Company
or a
fraud against any other person or entity that is materially detrimental to
the
Company.
4.4
“Change
of Control”
means:
(a)
the
acquisition by any “person” (as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the
“beneficial ownership” (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing fifty
(50%) percent or more of (i) the then outstanding shares of common stock
of the
Company, or (ii) the combined voting power of the Company’s then outstanding
voting securities; provided, however, that the following acquisitions shall
not
constitute a Change of Control: (i) any
acquisition directly from the Company (excluding
an acquisition by virtue of the exercise of a conversion privilege),
(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 entity controlled by the Company, (iv) any acquisition by ▇▇▇▇▇▇
▇.
▇▇▇▇▇, M.D. or person controlled by him, or (vi) upon the death of ▇▇▇▇▇▇
▇.
▇▇▇▇▇, M.D., any acquisition triggered by his death by operation of law,
by any
testamentary bequest or by the terms of any trust or other contractual
arrangement established by him;
(b)
the
Company is party to a merger or consolidation, or series of related
transactions, which results in the voting securities of the Company outstanding
immediately prior thereto failing to continue to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), directly or indirectly, at least fifty (50%) percent of the combined
voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
(c)
the
sale or disposition of all or substantially all of the Company’s assets, or
consummation of any transaction, or series of related transactions, having
similar effect (other than to a subsidiary of the Company);
(d)
a
change in the composition of the Board within any consecutive two-year period,
as a result of which fewer than a majority of the directors are Incumbent
Directors. “Incumbent Directors” shall mean directors who either (i) were
directors of the Company as of the effective date of this Agreement, or (ii)
are
elected, or nominated for election, to the Board with the affirmative votes
of a
least a majority of those directors whose election or nomination was not
in
connection with an actual or threatened proxy contest related to the election
of
directors to the Company; or
(e)
the
dissolution or liquidation of the Company.
4.5
“Disability”
means
the inability to engage in any substantial gainful activity by reason of
any
medically determinable physical or mental impairment that can be expected
to
result in death or can be expected to last for a period of not less than
twelve
(12) months.
4.6
“Good
Reason”
means
the occurrence of any of the following conditions, without the Executive’s
written consent:
(a)
assignment to the Executive of a title, position, responsibilities or duties
that is not a Substantive Functional Equivalent to the title, position,
responsibilities or duties which the Executive had immediately prior to the
Change of Control;
(b)
a
reduction in the Executive’s Base Salary or target bonus opportunity in effect
immediately prior to the Change of Control (subject to applicable performance
requirements with respect to the actual amount of bonus compensation earned
that
are similar to the applicable performance requirements in effect immediately
prior to the Change of Control);
(c)
the
failure of the Company (i) to continue to provide the Executive an opportunity
to participate in any benefit or compensation plans provided to employees
who
held positions with the Company or its Successor comparable to the Executive’s
position immediately prior to the Change of Control, or (ii) to provide the
Executive all other fringe benefits (or the equivalent) in effect for the
benefit of any employee group which includes any employee who held a position
with the Company or its Successor comparable to the Executive’s position
immediately prior to the Change of Control;
(d)
the
Company’s requiring the Executive to (i) relocate to any office or location more
than 50 miles (one-way) from the Company's office where the Executive was
based
immediately prior to the Change of Control, or (ii) to engage in travel in
the
performance of services for the Company at a frequency or for a duration
substantially in excess of such travel required by the Company prior to the
Change of Control;
(e)
a
material breach of this Agreement by the Company, including failure of the
Company to obtain the agreement of a Successor to perform all of the obligations
of the Company under this Agreement; or
(f)
any
act, set of facts or omissions with respect to the Executive that would,
under
applicable law, constitute a constructive termination of the
Executive.
Notwithstanding
the foregoing, nothing described in any of subsections (a) through (f) above
shall constitute Good Reason unless Executive provides Company written notice,
in reasonable detail, of his or her belief that an action or inaction
constituting such Good Reason has occurred and the Company fails to cure
or
correct such action or inaction, within thirty (30) days of its receipt of
such
written notice, such that the asserted Good Reason no longer exists.
4.7
“Substantive
Functional Equivalent”
means
that, following a Change of Control, the Executive’s position must:
(a)
be in
a substantive area of the Executive’s competence (e.g., finance or executive
management) and not materially different from the position occupied immediately
prior to the Change of Control;
(b)
allow
the Executive to serve in a role and perform duties functionally equivalent
to
those performed immediately prior to the Change of Control; and
(c)
not
otherwise constitute a material, adverse change in authority, title, status,
responsibilities or duties from those of the Executive immediately prior
to the
Change of Control, causing the Executive to be of materially lesser rank
or
responsibility.
4.8
“Successor”
means
the Company as defined above and any successor to or assignee of substantially
all of its business and/or assets.
4.9
“Termination
Upon Change of Control”
means:
(a)
any
termination of the employment of the Executive by the Company without Cause
during the period commencing on or after the date that the Company first
publicly announces a definitive agreement that results in a Change of Control
(even though still subject to approval by the Company’s shareholders and other
conditions and contingencies, but provided that the Change of Control actually
occurs) and ending on the date which is eighteen (18) months following the
Change of Control; or
(b)
any
resignation by Executive for Good Reason where (i) such Good Reason occurs
during the period commencing on or after the date that the Company first
publicly announces a definitive agreement that results in a Change of Control
(even though still subject to approval by the Company’s shareholders and other
conditions and contingencies, but provided that the Change of Control actually
occurs) and ending on the date which is eighteen (18) months following the
Change of Control, and (ii) such resignation occurs within six (6) months
following the occurrence of such Good Reason.
Notwithstanding
the foregoing, the term “Termination Upon Change of Control” shall not include
any termination of the employment of the Executive: (1) by the Company for
Cause; (2) by the Company as a result of the Disability of the Executive;
(3) as
a result of the death of the Executive; or (4) as a result of the retirement
of
the Executive or other voluntary termination of employment by the Executive
for
any reason other than Good Reason.
Anything
to the contrary in this Agreement notwithstanding, if a Change in Control
occurs
and if Executive's employment with the Company was terminated either by the
Company without Cause or by Executive for Good Reason, within six (6) months
prior to the effective date of the Change of Control, and if it is reasonably
demonstrated by Executive that such termination of employment (a) was at
the
request of a third party who has taken steps reasonably calculated to effect
a
Change of Control or (b) otherwise arose in connection with or anticipation
of a
Change of Control, then for all purposes of this Agreement, such termination
shall constitute a "Termination Upon Change of Control."
5.
EXCLUSIVE
REMEDY
5.1
No
Other Benefits Payable.
The
Executive shall be entitled to no other termination, severance or change
of
control compensation, benefits, or other payments from the Company as a result
of any Termination Upon a Change of Control with respect to which the payments
and/or benefits described in Section 2 have been provided to the Executive,
except as expressly set forth in this Agreement.
5.2
No
Limitation of Regular Benefit Plans.
Except
as provided in Section 5.4 below, this Agreement is not intended to and shall
not affect, limit or terminate any plans, programs or arrangements of the
Company that are regularly made available to a significant number of employees
or officers of the Company, including, without limitation, the Company’s stock
option plans.
5.3
Release
of Claims.
Notwithstanding anything in this Agreement to the contrary, the Executive
shall
not be entitled to receive the severance benefits described in Section 2.2
of
this Agreement or the stipend described in Section 2.4 of this Agreement
unless
(a) the Executive executes and delivers to the Company a general release
of
claims substantially in a form provided to the Executive by the Company prior
to
any Change of Control (the "General Release") and (b) the Executive does
not
revoke the General Release during the period of time (if any) specified in
the
General Release during which the Executive may revoke it ("Revocation Period").
If the Executive is at least age 40 at the time he executes the General Release,
the General Release will provide for a Revocation Period of at least seven
(7)
days (or such longer period required by applicable law for the General Release
to be effective). If the General Release does not provide for a Revocation
Period, then the Revocation Period shall be deemed to have expired on the
date
the Executive executes the General Release. The General Release shall not
require the Executive to release any rights the Executive may have to be
indemnified by the Company or that are otherwise provided under this Agreement.
5.4
Noncumulation
of Benefits.
The
Executive may not cumulate cash severance payments, stock option vesting
and
exercisability and other equity grant, based on the Executive ceasing to
be an
employee of the Company, under this Agreement, any other written agreement
with
the Company and/or another plan or policy of the Company.
6.
NON-SOLICITATION
For
a
period of twelve (12) months after the Executive’s Termination Upon Change of
Control, the Executive will not solicit the services or business of any employee
or consultant of the Company, which, if accepted, would result in the
discontinuance of that person’s or entity’s relationship with or to the Company,
without the written consent of the Company.
7.
ARBITRATION
7.1
Disputes
Subject to Arbitration.
To the
extent permitted by law, any claim, dispute or controversy arising out of
this
Agreement (other than claims relating to misuse or misappropriation of the
intellectual property of the Company), the interpretation, validity or
enforceability of this Agreement or the alleged breach hereof shall be submitted
by the parties to binding arbitration by a sole arbitrator under the rules
of
the American Arbitration Association; provided, however, that (a) the arbitrator
shall have no authority to make any ruling or judgment that would confer
any
rights with respect to the trade secrets, confidential and proprietary
information or other intellectual property of the Company upon the Executive
or
any third party; and (b) this arbitration provision shall not preclude the
Company from seeking legal and equitable relief from any court having
jurisdiction with respect to any disputes or claims relating to or arising
out
of the misuse or misappropriation of the Company’s intellectual property.
Judgment may be entered on the award of the arbitrator in any court having
jurisdiction.
7.2
Costs
of Arbitration.
All
costs of arbitration, including reasonable attorneys fees of the Executive,
will
be borne by the Company, except that, if the Executive initiates arbitration
and
the arbitrator finds the Executive’s claims to be frivolous, the Executive shall
be responsible for his own costs and attorneys fees.
8.
NOTICES
For
purposes of this Agreement, notices and all other communications provided
for in
the Agreement shall be in writing and shall be deemed to have been duly given
when delivered or five (5) business days after being mailed, return receipt
requested, as follows:
If
to the
Company: Interactive
Intelligence, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Chief Executive Officer
and,
if
to the Executive, at the address indicated below. Either party may provide
the
other with written notices of change of such party’s address, which shall be
effective upon receipt by the other party.
9. MISCELLANEOUS
PROVISIONS
9.1
Heirs
and Representatives of the Executive; Successors and Assigns of the
Company.
This
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the Executive’s personal and legal representatives, executors,
administrators, successors, heirs, distributees, devises and legatees. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the successors and assigns of the Company. The Company shall require any
Successor, by agreement in form and substance satisfactory to Executive,
to
expressly assume and agree to perform this Agreement in the same manner and
to
the same extent that the Company would be required to perform it if no
succession had taken place.
9.2
Amendment
and Waiver.
No
provision of this Agreement shall be modified, amended, waived or discharged
unless the modification, amendment, waiver or discharge is agreed to in writing,
specifying such modification, amendment, waiver or discharge, and signed
by the
Executive and by an authorized officer of the Company (other than the
Executive). No waiver by either party of any breach of, or of compliance
with,
any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition
or provision at another time.
9.3
Withholding
Taxes.
All
payments made under this Agreement shall be subject to reduction to reflect
all
federal, state, local and other taxes required to be withheld by applicable
law.
9.4
Severability.
The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision hereof,
which shall remain in full force and effect.
9.5
Choice
of Law.
The
validity, interpretation, construction and performance of this Agreement
shall
be governed by the laws of the State of Indiana, without regard to where
the
Executive has his residence or principal office or where he performs his
duties
hereunder.
9.6
No
Duty to Mitigate.
The
Executive is not required to seek alternative employment following termination,
and payments called for under this Agreement will not be reduced by earnings
from any other source, except as expressly provided herein.
9.7
Employment
Agreement.
The
Employment Agreement, dated as of {Blank}, by and between Executive and the
Company (the "Employment Agreement") shall continue in full force and effect.
To
the extent there is a conflict between any of the terms of this Agreement
and
any of the terms of the Employment Agreement, the terms of this Agreement
shall
control. Without limitation of the foregoing, in the event Executive receives
payments hereunder, he shall not be entitled to the payment referenced in
Section 5(b) of the Employment Agreement. This Agreement and the Employment
Agreement represent the entire agreement and understanding between the parties
as to the subject matter herein (whether oral or written and whether express
or
implied).
9.8
Code
Section 409A Standards.
To the
extent that this Agreement is subject to the standards for nonqualified deferred
compensation plans established by Code Section 409A (the "Section 409A
Standards"), it will be effected, interpreted, and applied in a manner
consistent with the Section 409A Standards. To the extent that any terms
of this
Agreement would subject the Executive to gross income inclusion, interest,
or
additional tax pursuant to Code Section 409A, those terms are to that extent
superseded by the applicable Section 409A Standards.
IN
WITNESS
WHEREOF,
each of
the parties has executed this Agreement, in the case of the Company, by its
duly
authorized officer, as of the day and year first above written.
Executive:
{Executive
name}
{address}
Interactive
Intelligence, Inc.
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇
Chief
Executive Officer