AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 8th day of July, 2005 between Moldflow Corporation, a Delaware
corporation (the "Company"), and Xxxxxxx Xxxxxxxx ("Executive").
WHEREAS, the Company and the Executive are party to an Executive Employment
Agreement dated as of January 23, 2004 (the "Prior Agreement"); and
WHEREAS, it is a condition to the Company's and Executive's obligations
under the Purchase Agreement that the Company and Executive enter into this
Agreement; and
WHEREAS, the Company desires to employ Executive and Executive desires to
be employed by the Company on the terms contained in this Amended and Restated
Executive Employment Agreement, which shall supersede all of the terms and
conditions of the Prior Agreement; provided however that the parties agree that
the terms and conditions of the Prior Agreement shall have been in effect at all
times from the date thereof until the date of this Amended and Restated
Executive Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date
hereof (the "Commencement Date") until the first anniversary of the Commencement
Date and shall automatically be extended for one additional year on each
anniversary thereafter unless, not less than 30 days prior to each such date,
either party shall have given notice that it does not wish to extend this
Agreement; provided further, that, following a Change in Control, the term of
this Agreement shall continue in effect for a period of not less than twelve
(12) months beyond the month in which the Change in Control occurred. The term
of this Agreement shall be subject to termination as provided in Paragraph 4 and
may be referred to herein as the "Period of Employment."
2. Position and Duties. During the Period of Employment, Executive shall
serve as the Executive Vice President, Manufacturing Solutions, and shall have
such duties as may from time to time be prescribed by the Chief Executive
Officer or the Board of Directors of the Company (the "Board"). Executive shall
devote his full working time and efforts to the business and affairs of the
Company.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's annual base
salary shall be $205,000. Executive's base salary shall be redetermined
annually by the Chief Executive Officer, the Board or a Committee thereof.
The annual base salary in effect at any given time is referred to herein as
"Base Salary." The Base Salary shall be payable in a manner consistent with
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the general payroll policy of the Company. In addition to Base Salary,
Executive shall be eligible to participate in such incentive compensation
plans and Employee Benefit Plans as the CEO, the Board or a Committee
thereof shall determine from time to time. As used herein, the term
"Employee Benefit Plans" includes, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical insurance plan;
disability plan; and health and accident plan or arrangement established
and maintained by the Company.
(b) Vacations. Executive shall be entitled to twenty (20) paid
vacation days in each fiscal year, which shall be accrued ratably during
the fiscal year, and Executive shall also be entitled to all paid holidays
given by the Company to its executives.
(c) Additional Benefits. The Company will reimburse the Executive for
the cost of a supplemental policy of long-term disability insurance for the
Executive; provided that such policy can be purchased under normal terms
and conditions given the age of the Executive.
(d) Indemnification and Directors' and Officers' Insurance. During
Executive's employment and for the period of time following termination of
the Executive for any reason during which time Executive could be subject
to any claim based on his position in the Company, Executive shall receive
the maximum indemnification protection from the Company as permitted by the
Company's by-laws and shall receive directors' and officers' insurance
coverage equivalent to that which is provided to any other director or
officer of the Company.
4. Termination. Except for termination as specified in Subparagraph 4(a),
any termination of Executive's employment by the Company or any such termination
by Executive shall be communicated by written notice of termination to the other
party hereto (a "Notice of Termination"). Executive's employment hereunder may
be terminated without any breach of this Agreement under the following
circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his
death.
(b) Disability. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from his
duties hereunder on a full-time basis for one hundred eighty (180) calendar
days in the aggregate in any twelve (12) month period, the Company may
terminate Executive's employment hereunder.
(c) Termination by Company For Cause. At any time during the Period
of Employment, the Company may terminate Executive's employment hereunder
for Cause if such termination is approved by not less than a majority of
the Company's Board of Directors. For purposes of this Agreement, "Cause"
shall mean: (A) conduct by Executive constituting a material act of willful
misconduct in connection with the performance of his duties; (B) criminal
or civil conviction of Executive, a plea of nolo contendere by Executive or
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conduct by Executive that would reasonably be expected to result in
material injury to the reputation of the Company if he were retained in his
position with the Company; (C) continued, willful and deliberate
non-performance by Executive of his duties hereunder (other than by reason
of Executive's physical or mental illness, incapacity or disability) which
has continued for more than thirty (30) days following written notice of
such non-performance from the Board; or (D) a breach by Executive of any of
the provisions contained in Paragraph 7 of this Agreement or Paragraph 5.2
of the Purchase Agreement.
(d) Termination Without Cause. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder
without Cause if such termination is approved by a majority of the
Company's Board of Directors. Any termination by the Company of Executive's
employment under this Agreement which does not constitute a termination for
Cause under Subparagraph 4(c) or result from the death or disability of the
Executive under Subparagraphs 4(a) or (b) shall be deemed a termination
without Cause. If the Company provides notice to Executive under Paragraph
1 that it does not wish to extend the Period of Employment, such action
shall be deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any
reason.
(f) Date of Termination. "Date of Termination" shall mean: (A) if
Executive's employment is terminated by his death, the date of his death;
(B) if Executive's employment is terminated under Subparagraph 4(b) or
under Subparagraph 4(c), the date on which Notice of Termination is given;
(C) if Executive's employment is terminated by the Company under
Subparagraph 4(d), thirty (30) days after the date on which a Notice of
Termination is given; and (D) if Executive's employment is terminated by
Executive under Subparagraph 4(e), thirty (30) days after the date on which
a Notice of Termination is given.
5. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, the
Company shall, within ninety (90) days of the Date of Termination, pay in a
lump sum amount to such person as Executive shall designate in a notice
filed with the Company or, if no such person is designated, to Executive's
estate, Executive's accrued and unpaid Base Salary and accrued vacation to
the date of his death, plus his accrued and unpaid incentive compensation
(including any bonus payment if any, under Subparagraph 3(a) that is earned
with respect to any financial period but which has not yet been authorized
for payment by the Board of Directors or any committee thereof, which shall
be paid if and when it is so authorized by the Board of Directors). Upon
the Date of Termination, all stock options which would otherwise vest over
the next twelve (12) months shall immediately vest in Executive's estate or
other legal representatives and become exercisable, and Executive's estate
or other legal representatives shall have twelve (12) months from the Date
of Termination or the remaining option term, if earlier, to exercise all
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such stock options granted to Executive. All other stock-based grants and
awards held by Executive shall be canceled upon the death of Executive in
accordance with their terms. For a period of one (1) year following the
Date of Termination, the Company shall pay such health and dental insurance
premiums as may be necessary to allow Executive's spouse and dependents to
receive health and dental insurance coverage substantially similar to
coverage they received immediately prior to the Date of Termination. In
addition to the foregoing, any payments to which Executive's spouse,
beneficiaries, or estate may be entitled under any Employee Benefit Plan
shall also be paid in accordance with the terms of such plan. Such
payments, in the aggregate, shall fully discharge the Company's obligations
hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness,
Executive shall continue to receive his Base Salary and other compensation
and benefits provided hereunder. If Executive's employment is terminated by
the Company pursuant to Paragraph 4(b), then the Company shall, through the
Date of Termination, pay Executive his accrued and unpaid Base Salary plus
accrued vacation, at the rate in effect at the time Notice of Termination
is given, plus accrued and unpaid incentive compensation (including any
bonus payment if any, under Subparagraph 3(a), that is earned with respect
to any financial period but which has not yet been authorized for payment
by the Board of Directors or any committee thereof which shall be paid if
and when it is so authorized by the Board of Directors). Upon the Date of
Termination, all stock options which would otherwise vest over the next
twelve (12) months shall immediately vest and become exercisable, and
Executive shall have twelve (12) months from the Date of Termination or the
remaining option term, if earlier, to exercise all such stock options
granted to Executive. All other stock-based grants and awards held by
Executive shall vest or be canceled upon the Date of Termination in
accordance with their terms. For a period of one (1) year following the
Date of Termination, the Company shall pay such health and dental insurance
premiums as may be necessary to allow Executive and Executive's spouse and
dependents to receive health and dental insurance coverage substantially
similar to coverage they received prior to the Date of Termination. In
addition to the foregoing, any payments to which Executive may be entitled
under any Employee Benefit Plan shall also be paid in accordance with the
terms of such plan. Such payments, in the aggregate, shall fully discharge
the Company's obligations hereunder.
(c) If Executive's employment is terminated by Executive as provided
in Subparagraph 4(e) (including where Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment), then the Company shall, through the Date of Termination, pay
Executive his accrued and unpaid Base Salary plus accrued vacation, at the
rate in effect at the time Notice of Termination is given. Thereafter, the
Company shall have no further obligations to Executive except as otherwise
expressly provided under this Agreement. In addition, all vested but
unexercised stock options held by Executive as of the Date of Termination
must be exercised by Executive within three (3) months following the Date
of Termination or by the end of the option term, if earlier. All other
stock-based grants and awards held by Executive shall vest or be canceled
upon the Date of Termination in accordance with their terms.
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Notwithstanding the foregoing, if the Company determines that the Executive
is in breach of any of the provisions contained in Paragraph 7 of this
Agreement or any of the provisions contained in Section 5.2 of the Purchase
Agreement during the three (3) month period from the Date of Termination,
then all stock options held by the Executive shall immediately terminate
and be of no further force and effect.
(d) If Executive's employment is terminated by the Company without
Cause as provided in Subparagraph 4(d), then the Company shall, through the
Date of Termination, pay Executive his accrued and unpaid Base Salary plus
accrued vacation, at the rate in effect at the time Notice of Termination
is given, and his accrued and unpaid incentive compensation (including any
bonus payment if any, under Subparagraph 3(a), that is earned with respect
to any financial period but which has not yet been authorized for payment
by the Board of Directors or any committee thereof which shall be paid if
and when it is so authorized by the Board of Directors). In addition,
subject to signing by Executive of a general release of claims in a form
and manner satisfactory to the Company, the Company shall provide the
following benefits to Executive:
(i) The Company shall pay Executive an amount equal to one (1)
times the sum of (A) the Executive's Base Salary in effect on the Date of
Termination, and (B) the Executive's average annual bonus or other variable
cash compensation (including commissions) over the five (5) fiscal years
immediately prior to the year of termination (the "Termination Amount").
Notwithstanding the foregoing, in the event that the Executive shall have
been employed with the Company (not to include the Executive's previous
employment with AMSI, prior to the date of this Agreement) for less than
five (5) fiscal years immediately prior to the year of termination, then in
such case the Termination Amount shall be calculated as the average annual
bonus or other variable cash compensation (including commissions) over the
number of full fiscal years that Executive was employed by the Company
prior to the year of termination. The Termination Amount shall be
calculated by the Company within ten (10) business days following the Date
of Termination and communicated to the Executive in writing and shall then
be paid out in a lump sum within 30 days following the Date of Termination.
(ii) Upon the Date of Termination, all stock options which would
otherwise vest over the next twelve (12) months shall immediately vest and
become exercisable, and Executive shall have twelve (12) months from the
Date of Termination or the remaining option term, if earlier, to exercise
all such stock options granted to Executive. All other stock-based grants
and awards held by Executive shall be canceled upon the Date of Termination
in accordance with their terms. Notwithstanding the foregoing, if the
Company determines that the Executive is in breach of any of the provisions
contained in Paragraph 7 of this Agreement or any of the provisions
contained in Section 5.2 of the Purchase Agreement during the twelve (12)
month period from the Date of Termination, then all stock options held by
the Executive shall immediately terminate and be of no further force and
effect.
(iii) The Company shall, for a period of one (1) year commencing
on the Date of Termination, pay such health and dental insurance premiums
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as may be necessary to allow Executive and Executive's spouse and
dependents to continue to receive health and dental insurance coverage
substantially similar to coverage they received prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive
may be entitled under any Employee Benefit Plan shall also be paid in
accordance with the terms of such plan. Notwithstanding the foregoing, if
the Company determines that the Executive is in breach of any of the
provisions contained in Paragraph 7 of this Agreement or any of the
provisions contained in Section 5.2 of the Purchase Agreement during the
period over which payments are being made pursuant to this Subparagraph
5(d)(iii), then all further payments under this Subparagraph 5(d)(iii)
shall immediately cease.
(e) If Executive's employment is terminated by the Company for Cause
as provided in Subparagraph 4(c), then the Company shall, through the Date
of Termination, pay Executive his accrued and unpaid Base Salary, plus
accrued vacation, at the rate in effect at the time Notice of Termination
is given. Thereafter, the Company shall have no further obligations to
Executive except as otherwise expressly provided under this Agreement. In
addition, all stock options held by Executive as of the Date of Termination
shall cease to vest as of the Date of Termination and Executive shall have
thirty (30) days from the Date of Termination or the remaining option term,
if earlier, to exercise all such vested stock options. All other
stock-based grants and awards held by Executive shall be canceled upon the
Date of Termination in accordance with their terms. Notwithstanding the
foregoing, if the Company determines that the Executive is in breach of any
of the provisions contained in Paragraph 7 of this Agreement or any of the
provisions contained in Section 5.2 of the Purchase Agreement during the
thirty (30) day period from the Date of Termination, then all stock options
held by the Executive shall immediately terminate and be of no further
force and effect.
(f) Nothing contained in the foregoing Subparagraphs 5(a) through
5(e) shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits that are unrelated to
termination of employment.
6. Change in Control Benefit. Upon a Change in Control of the Company,
the following provisions shall apply and, in the event of the termination of
Executive's employment without Cause following such Change in Control, shall
apply in lieu of, and expressly supersede, the provisions of Subparagraph 5(d).
(a) Change in Control.
(i) In the event that within twelve (12) months following a
Change in Control, the Executive terminates his employment for Good Reason
(as defined below) or if the Executive's employment is terminated by the
Company without Cause, the Company shall pay Executive an amount equal to
1.5 times the sum of (A) the Executive's Base Salary in effect on the Date
of Termination, and (B) the Executive's cash bonus or other variable cash
compensation (including commissions) that would be payable to the Executive
during the fiscal year in which the Change in Control occurred if the
Company and the Executive had met all of the targets required for a full
payment of such cash bonus or other variable cash compensation
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(collectively, the "Severance Amount"). The Severance Amount shall be
calculated by the Company within ten (10) business days following the Date
of Termination and communicated to the Executive in writing and shall then
be paid out in a lump sum within 30 days of the Date of Termination. In the
event Executive terminates his employment for Good Reason, he shall be
entitled to the Severance Amount only if he provides the Notice of
Termination within sixty (60) days after the occurrence of the event or
events which constitute such Good Reason.
(ii) Notwithstanding anything to the contrary in any applicable
option agreement or stock-based award agreement, upon a Change in Control,
all stock options and other stock-based awards granted to Executive by the
Company shall immediately accelerate and become exercisable or
non-forfeitable as of the effective date of such Change in Control.
Executive shall also be entitled to any other rights and benefits with
respect to stock-related awards, to the extent and upon the terms provided
in the employee stock option or incentive plan or any agreement or other
instrument attendant thereto pursuant to which such options or awards were
granted. Notwithstanding the foregoing, if the Company determines that the
Executive is in breach of any of the provisions contained in Paragraph 7 of
this Agreement or any of the provisions contained in Section 5.2 of the
Purchase Agreement, then all stock options held by the Executive shall
immediately terminate and be of no further force and effect.
(iii) The Company shall, for a period of one (1) year commencing
on the Date of Termination, pay such health and dental insurance premiums
as may be necessary to allow Executive and Executive's spouse and
dependents to continue to receive health and dental insurance coverage
substantially similar to the coverage they received prior to the Date of
Termination. Notwithstanding the foregoing, if the Company determines that
the Executive is in breach of any of the provisions contained in Paragraph
7 of this Agreement or any of the provisions contained in Section 5.2 of
the Purchase Agreement during the period over which payments are being made
pursuant to this Subparagraph 6(a)(iii), then all further payments under
this Subparagraph 6(a)(iii) shall immediately cease.
(b) Definitions. For purposes of this Paragraph 6, the following
terms shall have the following meanings:
"Change in Control" shall mean any of the following:
(a) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Act") (other than the Company, any of its subsidiaries, or any
trustee, fiduciary or other person or entity holding securities
under any Employee Benefit Plan or trust of the Company or any of
its subsidiaries), together with all "affiliates" and
"associates" (as such terms are defined in Rule 12b-2 under the
Act) of such person, shall become the "beneficial owner" (as such
term is defined in Rule 13d-3 under the Act), directly or
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indirectly, of securities of the Company representing forty
percent (40%) or more of either (A) the combined voting power of
the Company's then outstanding securities having the right to
vote in an election of the Company's Board of Directors ("Voting
Securities"), or (B) the then outstanding shares of the Company's
common stock, par value $0.01 per share ("Common Stock") (other
than as a result of an acquisition of securities directly from
the Company); or
(b) persons who, as of the Commencement Date, constitute the
Company's Board of Directors (the "Incumbent Directors") cease
for any reason, including, without limitation, as a result of a
tender offer, proxy contest, merger or similar transaction, to
constitute at least a majority of the Board of Directors,
provided that any person becoming a director of the Company
subsequent to the Commencement Date shall be considered an
Incumbent Director if such person's election was approved by, or
such person was nominated for election by, a vote of at least a
majority of the Incumbent Directors; but provided further, that
any such person whose initial assumption of office is in
connection with an actual or threatened election contest relating
to the election of members of the Board of Directors or other
actual or threatened solicitation of proxies or consents by or on
behalf of a person other than the Board of Directors, including
by reason of agreement intended to avoid or settle any such
actual or threatened contest or solicitation, shall not be
considered an Incumbent Director; or
(c) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company where the stockholders of
the Company, immediately prior to the consolidation or merger,
would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Act), directly or indirectly, shares representing in the
aggregate more than fifty percent (50%) of the voting shares of
the company issuing cash or securities in the consolidation or
merger (or of its ultimate parent corporation, if any), (B) any
sale, lease, exchange or other transfer (in one transaction or a
series of transactions contemplated or arranged by any party as a
single plan) of all or substantially all of the assets of the
Company, or (C) any plan or proposal for the liquidation or
dissolution of the Company.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to
have occurred for purposes of the foregoing clause (a) solely as the result of
an acquisition of securities by the Company which, by reducing the number of
shares of Common Stock or other Voting Securities outstanding, increases the
proportionate number of shares beneficially owned by any person to forty percent
(40%) or more of either (A) the combined voting power of all of the then
outstanding Voting Securities or (B) the outstanding shares of Common Stock;
provided, however, that if any person referred to in this sentence shall
thereafter become the beneficial owner of any additional shares of Voting
Securities or Common Stock (other than pursuant to a stock split, stock
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dividend, or similar transaction or as a result of an acquisition of securities
directly from the Company) and immediately thereafter beneficially owns forty
percent (40%) or more of either (A) the combined voting power of all of the then
outstanding Voting Securities or (B) the outstanding shares of Common Stock,
then a "Change in Control" shall be deemed to have occurred for purposes of the
foregoing clause (a).
"Good Reason" shall mean any of the following:
(a) a substantial diminution or other substantive adverse
change, not consented to by Executive, in the nature or scope of
Executive's responsibilities, authorities, powers, functions or
duties;
(b) any removal, during the Period of Employment, from Executive
of his title as set forth in Paragraph 2 of this Agreement;
(c) an involuntary reduction in Executive's Base Salary except
for across-the-board reductions similarly affecting all or
substantially all management employees;
(d) a breach by the Company of any of its other material
obligations under this Agreement and the failure of the Company
to cure such breach within thirty (30) days after written notice
thereof by Executive;
(e) the involuntary relocation of the Company's offices at which
Executive is principally employed or the involuntary relocation
of the offices of Executive's primary workgroup to a location
more than thirty (30) miles from such offices, or the requirement
by the Company that Executive be based anywhere other than the
Company's offices at such location on an extended basis, except
for required travel on the Company's business to an extent
substantially consistent with Executive's business travel
obligations; or
(f) 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 Paragraph 9.
7. Confidentiality, Assignment of Inventions, etc.
(a) Executive acknowledges that, in order for him to perform his
duties properly, the Company will from time to time entrust Executive with
certain trade secrets and confidential information in relation to the
Company and the Company's activities (the "Confidential Information"). Such
Confidential Information may be in tangible or intangible form. The
Confidential Information includes, but is not limited to, source code;
object code; operational and functional features and limitations of the
Company's software; the Company's research and development plans and
activities; the Company's manufacturing and production plans and
activities; the prices, terms and conditions of the Company's contracts
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with its customers; the identities, needs and requirements of the Company's
customers; the Company's pricing policies and price lists; the Company's
business plans and strategies; the Company's marketing plans and
strategies; and personnel information and financial information regarding
the Company. Executive further acknowledges that the development or
acquisition of such Confidential Information is the result of great effort
and expense by the Company and the Confidential Information is critical to
the survival and success of the Company and that the unauthorized
disclosure or use of the Confidential Information would cause the Company
irreparable harm.
(b) Executive agrees that during the Period of Employment with the
Company and thereafter, he will not disclose the Confidential Information
or use it in any way, except on behalf of the Company, whether or not such
Confidential Information is produced by Executive's own efforts. This
undertaking will not apply to any Confidential Information which is (i)
publicly known through no unauthorized act of Executive, (ii) approved by
the Company for disclosure, or (iii) the subject matter of a lawful request
or subpoena by and within the authority of a court or governmental agency
or other body. Executive further agrees, upon termination of his employment
for any reason, to deliver to Company on or prior to his last day of
employment, all Confidential Information (in whatever form, including
notes, drawings, files, computer records or other means, and wherever
located, including Executive's office, home, personal computer or internet
web site), whether or not such Confidential Information was produced by
Executive's own efforts, and to refrain from making, retaining, destroying
or distributing copies thereof.
(c) Any invention, discovery, development, improvement, procedure,
writing, work or design (collectively referred to herein as "invention or
discovery") that relates to any aspect of the business of the Company, or
results from any work performed on the premises of the Company or by use of
the facilities, equipment or services of other employees of the Company,
whether patentable, copyrightable or not and that is made or discovered by
Executive individually or jointly with any other person or persons during
the Period of Employment, whether on Company business hours or not, shall
be promptly disclosed to the Company. All such inventions and discoveries
shall be the sole property of the Company. Any such invention or discovery
shall be considered work made for hire. Executive hereby assigns to the
Company all right, title and interest to any such invention or discovery.
(d) In the event that any such invention or discovery shall be
determined by the Company in its sole discretion to be of a patentable
nature or to contain material subject to copyright or trademark protection,
Executive, whether or not then employed by the Company, will assist the
Company or its nominee to obtain, maintain and enforce copyrights,
trademarks or patents in the United States of America and in any and all
countries so designated, all at the expense of the Company. Executive will
supply evidence, give testimony, sign all papers and do all other legal and
proper things which Executive or its nominees may deem necessary for
obtaining, maintaining and enforcing its copyrights, trademarks and patents
and for vesting in Executive or its nominee full title thereto. Executive
hereby irrevocably appoints the Company to be his attorney in fact and, in
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his name and on his behalf, to execute all such instruments and take all
other actions and generally to use his name for the purpose of giving to
the Company the full benefit of the provisions of this Subparagraph.
(e) The assignment of any invention or discovery under this Paragraph
7 shall not extend to inventions or discoveries, the assignment of which is
prohibited by California Labor Code Paragraph 2870, which provides as
follows:
(i) Any provision in an employment agreement which provides that
an employee shall assign, or offer to assign, any of his or her rights in
an invention to his or her employer shall not apply to an invention that
the employee developed entirely on his or her own time without using the
employer's equipment, supplies, facilities, or trade secret information
except for those inventions that either:
(A) Relate at the time of conception or reduction to
practice of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer; or
(B) Result from any work performed by the employee for his
employer.
(ii) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise excluded
from being required to be assigned under subdivision (i), the provision is
against the public policy of this state and is unenforceable.
(f) Executive agrees, upon request by the Company, or termination of
his employment for any reason, promptly to deliver to the Company all
files, computer files or databases, books, documents, computer disks or
tapes, and other property prepared by or on behalf of the Company or
purchased with Company funds, and to refrain from making, retaining,
destroying or distributing copies thereof.
(g) Executive represents and warrants to the Company that the
execution of this Agreement by him, his performance of his obligations
hereunder and his employment by the Company will not, with or without the
giving of notice or the passage of time, conflict with, result in the
breach or termination of, or constitute default under, any agreement to
which Executive is party or by which he is or may be bound.
(h) The provisions of this Paragraph 7 shall survive the termination
of the Executive's employment with the Company regardless of the manner of
such termination, and shall be binding on Executive and his heirs,
executors and administrators.
(i) Anything herein to the contrary notwithstanding, any
confidential/proprietary/trade secrets information and inventions
agreement(s) between Executive AMSI, or any predecessor thereto, will
remain in effect as it pertains to subject matters existing prior to the
date of Purchase Agreement. Further, nothing in this Agreement shall
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diminish or modify any obligations Executive owes to the Company as set
forth in Section 5.2 of the Purchase Agreement.
(j) References in this Paragraph 7 to the "Company" shall refer to
Moldflow Corporation, a Delaware corporation, and all current and future
United States and foreign subsidiaries, divisions and affiliates
8. Notice. 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 mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At his home address as shown
in the Company's personnel records;
if to the Company:
Moldflow Corporation
000 Xxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. 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 in a transaction
constituting a Change in Control to expressly to assume and agree to perform
this Agreement to the same extent that the Company would be required to perform
it if no 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 following such Change in Control.
10. Miscellaneous. No provisions of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing and signed by Executive and such officer of the Company as may be
specifically designated by the Board of Directors. No agreements or
representations, oral or otherwise, express or implied, unless specifically
referred to herein, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. The validity,
interpretation, construction, and performance of this Agreement shall be
governed and construed by and in accordance with the substantive law of
California, excluding, however such laws pertaining to conflict of laws.
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11. Validity. The invalidity or unenforceability of any provision or
provisions 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.
12. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
13. Arbitration; Other Disputes. In the event of any dispute or
controversy arising under or in connection with this Agreement, the parties
shall first try in good faith for a period of 30 days to settle such dispute or
controversy by mediation under the applicable rules of the American Arbitration
Association before resorting to arbitration. Following such time period, the
parties will settle any remaining dispute or controversy 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. Notwithstanding the above,
the Company shall be entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of any violation of
Paragraph 7 of this Agreement.
14. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company in the defense
or prosecution of any claims or actions now in existence or which may be brought
in the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company;
provided, however, that such cooperation shall not materially and adversely
affect Executive or expose Executive to an increased probability of civil or
criminal litigation. The Company shall also provide Executive with compensation
on an hourly basis (to be derived from his Base Salary) for requested litigation
and regulatory cooperation that occurs after his termination of employment, and
reimburse Executive for all costs and expenses incurred in connection with his
performance under this Paragraph 14, including, but not limited to, reasonable
attorneys' fees and costs.
(Signatures on following page)
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
MOLDFLOW CORPORATION
By: /s/ A. Xxxxxx Xxxxxx
-----------------------------------
Its: President, CEO and Chairman of the
Board
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Xxxxxxx Xxxxxxxx
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