EXECUTIVE EMPLOYMENT AGREEMENT AVID TECHNOLOGY, INC.
EXHIBIT
10.2
This
Executive Employment Agreement (this “Agreement”) is entered into as of March
15, 2010 (the “Effective Date”), by and between Avid Technology, Inc., a
Delaware corporation with its principal executive offices at Avid Technology
Park, Xxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the “Company”), and Xxxxxx
Xxxx (“Executive”).
Article
1. Services
1.1. Service. During
the Term (as defined below), Executive shall serve as Senior Vice President of
Worldwide Sales and Professional Services upon the terms and conditions set
forth below.
1.2. Duties. During
the Term, Executive agrees to perform such executive duties consistent with his
position as may be assigned to him from time to time by the Board of Directors
of the Company (the “Board” or “Board of Directors”), the Chief Executive
Officer, the Chief Administrative Officer or the Chief Operating Officer and to
devote his full working time and attention to such duties.
1.3. No Conflicting
Commitments. During the Term, Executive will not undertake any
commitments, engage or have an interest in any outside business activities or
enter into any consulting agreements which, in the good faith determination of
the Chief Executive Officer, conflict with the Company’s interests or which
might reasonably be expected to impair the performance of Executive’s duties as
a full-time employee of the Company. Notwithstanding the foregoing,
Executive may pursue personal interests (including, without limitation,
industry, civic and charitable activities) and attend to his personal
investments, so long as such activities do not interfere with the performance of
his duties hereunder.
Article
2. Term
2.1. Term. The
term of this Agreement (the "Term") shall commence on the Effective Date and
shall expire on March 15, 2013 unless the Term is:
2.1.1
extended
pursuant to the provisions of this Section 2.1; or
2.1.2
terminated
when the Executive’s employment terminates pursuant to Section 4.1
hereof;
provided,
however, that notwithstanding the foregoing, the Term shall continue to
automatically be extended for periods of one (1) year so long as neither party
provides written notice to the other of its intent to terminate by a date which
is at least one hundred and eighty (180) days prior to the then-current
expiration date of the Agreement, and, provided further, that (i) in the event
that a Change-in-Control of the Company (as defined in Section 4.2.2) should
occur during the twelve (12) months prior to the end of the then-current Term
and Executive is still an employee of the Company at that time, then the Term
shall be deemed to expire on the date that is twelve (12) months after the date
of such Change-in-Control of the Company, (ii) in the event a Potential
Change-in-Control Period (as defined in Section 4.2.6) exists within the twelve
(12) months prior to the end of the then-current Term and Executive is still an
employee of the Company as of that date, the Term shall be deemed to expire on
the date that is twelve (12) months after the commencement of such Potential
Change-in-Control Period and (iii) the expiration of the Term shall not
adversely affect Executive’s rights under this Agreement which have accrued
prior to such expiration. For the avoidance of doubt, if a Potential
Change-in-Control Period shall commence in the twelve (12) months prior to the
end of the then-current Term and a Change-in-Control of the Company shall also
occur during such twelve (12) month period, and if Executive is still an
employee of the Company on the date of the Change-in-Control of the Company, the
Term shall be deemed to expire twelve (12) months after the date of such
Change-in-Control. Unless the services of the Executive have
terminated prior to or upon the end of the Term in accordance with the
provisions of this Agreement, from and after the end of the Term, Executive
shall be an employee-at-will.
Article
3. Payments
3.1. Base
Compensation. During the Term, the Company shall pay Executive
an annual base salary (the “Base Salary”) of Three Hundred Sixty-Nine Thousand
Three Hundred Dollars ($369,300), payable in regular installments in accordance
with the Company’s usual payment practices. The Base Salary shall be
reviewed by the Compensation Committee of the Board (the “Compensation
Committee”) during the Term.
3.2. Incentive
Payments. During the Term, Executive shall be eligible to
participate in an annual performance bonus plan approved by the Compensation
Committee for the Company’s executive officers (as such plan is amended from
time to time, the “Annual Incentive Bonus”), pursuant to which Executive shall
be eligible to receive a target annual bonus, in an amount approved by the
Compensation Committee in its sole discretion, equal to a percentage of his then
Base Salary. For 2010, Executive’s target annual bonus under the
Annual Incentive Plan is equal to 26.7% of his 2010 Base Salary (the “Target
Bonus”). Executive shall also be eligible to participate in other
cash incentive plans as approved from time to time by the Compensation
Committee.
3.3. Benefits;
Expenses. During the Term, the Company shall provide Executive
and his dependents with medical insurance and such other cash and noncash
benefits, on the same terms and conditions, as amended from time to time, as are
generally made available by the Company to its full-time executive
officers. Executive shall be entitled to four (4) weeks of paid
vacation per year. The Company shall pay, or reimburse Executive for,
all business expenses incurred by Executive which are related to the performance
of Executive's duties, subject to timely submission by Executive of payment or
reimbursement requests and appropriate documentation, in accordance with the
Company’s reimbursement policies.
3.4. Participation in Equity
Incentive Plans. During the Term, Executive shall be entitled
to participate in the Company’s stock incentive plans to the extent and in the
manner determined by the Board of Directors or the Compensation Committee in its
absolute discretion.
Article
4. Termination
4.1. Termination. Executive’s
employment hereunder shall terminate upon the occurrence of any of the following
events:
4.1.1.
Immediately
upon the Executive’s death;
4.1.2.
The
termination of the Executive’s employment by the Company for Disability (as
defined below), to be effective immediately upon delivery of notice
thereof;
4.1.3.
The
termination of Executive’s employment by the Company for Cause (as defined
below), to be effective immediately upon delivery of notice
thereof;
4.1.4.
The
termination of Executive’s employment by the Company without Cause and not as a
result of Executive’s death or Disability, to be effective thirty (30) days
after the Company delivers written notice thereof to the Executive;
4.1.5.
The
termination of Executive’s employment by Executive without Good Reason (as
defined below), to be effective thirty (30) days after Executive delivers
written notice thereof from Executive to the Company; or
4.1.6.
The
termination of Executive’s employment by Executive with Good Reason (as defined
below), to be effective as set forth below.
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4.2. For
purposes of this Agreement, the following definitions shall apply:
4.2.1. “Cause”
shall mean (i) Executive’s continued failure to perform (other than by
reason of death or illness or other physical or mental incapacity) his duties
and responsibilities as assigned by the Chief Executive Officer, Chief
Administrative Officer, Chief Operating Officer or Board in accordance with
Section 1.2 above, which is not remedied after thirty (30) days’ written notice
from the Company (if such failure is susceptible to cure), (ii) a breach by
the Executive of this Agreement or any other material written agreement between
Executive and the Company, which is not cured after ten (10) days’ written
notice from the Company (if such breach is susceptible to cure), (iii)
Executive’s gross negligence or willful misconduct, (iv) Executive’s
material violation of a material Company policy (for purposes of this clause,
the Company’s Code of Business Conduct and Ethics shall be deemed a material
Company policy), which is not cured after ten (10) days’ written notice
from the Company (if such violation is susceptible to cure), (v) fraud,
embezzlement or other material dishonesty with respect to the Company,
(vi) conviction of a crime constituting a felony (which shall not include
any crime or offense related to traffic infractions or as a result of vicarious
liability) or conviction of any other crime involving fraud, dishonesty or moral
turpitude or (vii) failing or refusing to cooperate, as reasonably requested in
writing by the Company, in any internal or external investigation of any matter
in which the Company has a material interest (financial or otherwise) in the
outcome of the investigation.
4.2.2. “Change-in-Control
of the Company” shall be deemed to have occurred only if any of the following
events occur:
(i) 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 (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (a) the then outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (b) the combined voting power of the
then outstanding voting 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 section, the following acquisitions
shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(D) any acquisition pursuant to a transaction which satisfies the criteria
set forth in clauses (a) and (b) of Section 4.2.2(iii); or
(ii) Individuals
who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the Effective
Date whose election, or nomination for election by the Company’s shareholders,
was approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such individual
whose initial assumption of office occurs 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
(iii) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the operating assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination,
(a) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 40% of,
respectively, the then-outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation), and the combined
voting power of the then-outstanding voting securities of the corporation or
other entity resulting from such Business Combination (which as used in this
section shall include, without limitation, a corporation or other entity which
as a result of such transaction owns all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) 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, as the case may be, and (b) no Person (excluding any
corporation or other entity resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 30% or more of, respectively, the then outstanding shares of common
stock (or other equity interests, in the case of an entity other than a
corporation) of the corporation or other entity resulting from such Business
Combination, or the combined voting power of the then-outstanding voting
securities of such corporation or other entity;
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provided,
however, that as used in Sections 2.1.2, 4.2.6, 4.3 and Article 5, a
“Change-in-Control of the Company” shall be deemed to occur only if any of the
foregoing events occur and such event that occurs is a “change in the ownership
or effective control of a corporation, or a change in the ownership of a
substantial portion of the assets of a corporation” as defined in Treasury Reg.
§ 1.409A-3(i)(5).
4.2.3. “Date of
Termination” shall mean the date of Executive’s “separation from service” with
the Company, as determined under Treasury Reg. § 1.409A-1(h).
4.2.4. “Disability”
shall mean Executive’s absence from the full-time performance of his duties with
the Company for more than one hundred and eighty (180) days during a three
hundred and sixty-five (365) day period as a result of incapacity due to mental
or physical illness, as a result of which Executive is deemed “disabled” by the
institution appointed by the Company to administer its long-term disability plan
(or any successor plan).
4.2.5. “Good
Reason” shall mean any material breach of this Agreement by the Company or the
occurrence of any one or more of the following without Executive’s prior express
written consent: (i) a material diminution in Executive’s authority,
duties or responsibility from those in effect as of the Effective Date; (ii) a
material diminution in Executive’s Base Salary as in effect on the Effective
Date or as may be increased from time to time, other than a reduction which is
part of an across-the board proportionate reduction in the salaries of all
senior executives of the Company imposed because the Company is experiencing
financial hardship (provided such reduction is not more than twenty percent
(20%) and does not continue for more than twelve (12) months); and (iii) a
material change in Executive’s office location (it being agreed that as of the
Effective Date such office location shall be deemed to be Tewksbury,
Massachusetts); provided, however, that a termination for Good Reason by
Executive can occur only if (a) Executive has given the Company a written notice
of the existence of a condition giving rise to Good Reason within ninety (90)
days after the initial occurrence of the condition giving rise to Good Reason
and (b) the Company has not cured the condition giving rise to Good Reason
within thirty (30) days after receipt of such notice. A
termination for Good Reason shall occur thirty (30) days after the end of such
thirty (30) day cure period.
4.2.6. A
“Potential Change-in-Control Period” shall be deemed to exist (i) commencing
upon the date on which the Company shall have announced that it has entered into
a merger, acquisition or similar agreement, the consummation of which would
result in the occurrence of a Change-in-Control of the Company and ending on the
earlier of (a) the date on which the transaction governed by such agreement has
been consummated or (b) the Company shall have announced that it has terminated
such agreement, or (ii) commencing on the date on which any Person shall
publicly announce an intention to take actions which if consummated would
constitute a Change-in-Control of the Company and ending on the earlier of (a)
the date on which such actions have caused the consummation of a
Change-in-Control of the Company or (b) such Person shall publicly announce the
termination of its intentions to take such actions.
4.2.7. “Pro
Ration Percentage” shall mean the amount, expressed as a percentage, equal to
the number of days in the then current fiscal year through the Date of
Termination, divided by three hundred and sixty-five (365).
4.2.8. “Termination
Bonus Amount” shall mean the greater of (i) Executive’s highest Annual
Incentive Bonus earned in the two most recent full fiscal years preceding the
Date of Termination, or (ii) One Hundred percent (100%) of Executive’s Base
Salary in effect as of the Date of Termination.
4.3. Adjustments Upon
Termination.
4.3.1. Death or
Disability. If during the Term, Executive’s employment with
the Company terminates pursuant to Section 4.1.1 or Section 4.1.2, subject
to the general release requirement in Section 4.5, the Company shall pay to
Executive or Executive’s heirs, successors or legal representatives, as the case
may be, Executive’s Base Salary in effect as of the date Executive’s employment
with the Company terminates (less, in the case of a termination of employment as
a result of Disability, the amount of any payments made to the Executive under
any long-term disability plan of the Company). Such payments shall be
made in accordance with Section 3.1 over the 12-month period that commences on
the Date of Termination; provided that if termination of employment due to death
or Disability occurs after a Change-in-Control of the Company, the total of such
payments shall be made in a lump sum within thirty (30) days following the Date
of Termination. Notwithstanding any provision to the contrary in any
Company stock plan, or under the terms of any grant, award agreement or form for
exercising any right under any such plan, any stock options, restricted stock
awards, restricted stock unit awards, stock appreciation rights or other equity
participation rights held by Executive as of the date of death or Disability
shall become exercisable or vested, as the case may be, with respect to all
time-based awards as to an additional number of shares equal to the number that
would have been exercisable or vested as of the end of the twelve (12) month
period immediately following the Date of Termination, but all performance-based
vesting awards that have not vested as of such Date of Termination shall be
forfeited as of such date.
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4.3.2. With Cause or Without Good
Reason. If Executive’s employment with the Company terminates
pursuant to Section 4.1.3 or Section 4.1.5, (i) all payments and
benefits provided to Executive under this Agreement shall cease as of the Date
of Termination, except that Executive shall be entitled to any amounts earned,
accrued or owing but not yet paid under Section 3.1 and any benefits due in
accordance with the terms of any applicable benefit plans and programs of the
Company and (ii) all vesting of all stock options, restricted stock awards,
restricted stock unit awards, stock appreciation rights or other equity
participation rights then held by the Executive shall immediately cease as of
the date Executive’s employment with the Company terminates.
4.3.3. Without Cause or with Good
Reason Other than during a Potential Change-in-Control Period or After a
Change-in-Control of the Company. If Executive’s employment
with the Company terminates pursuant to Section 4.1.4 or Section 4.1.6,
other than during a Potential Change-in-Control period or within twelve (12)
months after a Change-in-Control of the Company, subject to the general release
requirement in Section 4.5:
(i) Within
thirty (30) days following the Date of Termination, the Company shall pay
Executive in a lump sum in cash the sum of (a) any accrued but unpaid Base
Salary through the Date of Termination, plus (b) the Annual Incentive Bonus for
the fiscal year preceding the fiscal year in which the Date of Termination
occurs, if earned and unpaid, plus (c) any accrued but unused vacation
pay;
(ii) The
Company shall pay Executive, as severance pay, his Base Salary in effect as of
the Date of Termination in accordance with Section 3.1 for twelve (12) months
after the Date of Termination (the “Severance Pay Period”);
(iii) The
Company shall pay Executive the Annual Incentive Bonus for the year in which the
Date of Termination occurred, in the amount of Executive’s Target Bonus
multiplied by the applicable actual plan payout factor and pro rated by the
number of months Executive was employed by the Company during the year of the
Date of Termination; provided, however, that any individual performance
component of such payout factor shall be determined by the Compensation
Committee or the Chief Executive Officer, as it or he deems appropriate under
the circumstances in its or his sole discretion; and provided further, that such
Annual Incentive Bonus will be paid only if the Company pays bonuses, on account
of the year in which the Date of Termination occurred, to executives who remain
employed with the Company and will be paid in a lump sum on or about the date on
which the Company pays bonuses to executives who remain employed with the
Company;
(iv) If
Executive is eligible to receive and elects to continue receiving any group
medical, dental and vision insurance coverage under COBRA, the Company shall
reimburse the monthly COBRA premium in an amount equal to the portion of such
premium that the Company pays on behalf of active and similarly situated
employees receiving the same type of coverage until the earlier of (a) the end
of the Severance Pay Period or (b) the date on which Executive becomes eligible
to receive group medical, dental and vision insurance benefits from another
employer that are substantially equivalent to those provided by the Company as
of the Date of Termination (Executive agrees to notify the Company in writing
promptly upon becoming eligible to receive such group medical, dental and vision
insurance from another employer);
(v) The
Company shall provide Executive, at the Company’s sole cost, with executive
outplacement assistance in accordance with the Company’s then-current executive
outplacement program, provided that no outplacement benefits shall be provided
after the end of the first calendar year following the calendar year in which
the Date of Termination occurs;
(vi) Notwithstanding
any provision to the contrary in any Company stock plan, or under the terms of
any grant, award agreement or form for exercising any right under any such plan,
any stock options, restricted stock awards, restricted stock unit awards, stock
appreciation rights or other equity participation rights held by Executive as of
the Date of Termination become exercisable or vested, as the case may be, with
respect to all time-based vesting awards as to an additional number of shares
equal to the number that would have been exercisable or vested as of the end of
the twelve (12) month period immediately following the Date of Termination, but
all performance-based vesting awards that have not vested as of the Date of
Termination shall be forfeited as of such date except that if the Date of
Termination takes place after December 31 of a calendar year during the Term but
prior to the computation of XXX with respect to such calendar year, a
determination will be made as to the additional number of shares, if any, to be
vested as a result of such XXX computation, prior to the forfeiture of the
remaining unvested shares; and
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(viii)
Executive shall be entitled to exercise any such options or other awards or
equity participation rights until the earlier of (a) 12 months after the
Date of Termination and (b) the expiration date, if any, of such options, other
awards or equity participation rights, but all performance-based vesting awards
that have not vested as of the Date of Termination shall be forfeited as of such
date. No other payments or benefits shall be due under this Agreement
to Executive, but Executive shall be entitled to any benefits accrued or earned
in accordance with the terms of any applicable benefit plans and programs of the
Company.
4.3.4. Without Cause or with Good
Reason After a Change-in-Control of the Company. If, within
twelve (12) months after a Change-in-Control of the Company, Executive shall
terminate Executive’s employment pursuant to Section 4.1.6 or the Company shall
terminate Executive’s employment pursuant to Section 4.1.4, then in any such
event, subject to the general release requirement in Section 4.5:
(i) The
Company shall pay Executive as severance pay (without regard to the provisions
of any benefit plan) in a lump sum in cash no more than thirty (30) days
following the Date of Termination, the following amounts:
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(a)
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the
sum of (A) Executive’s accrued but unpaid Base Salary through the
Date of Termination, plus (B) the Annual Incentive Bonus for the fiscal
year preceding the fiscal year in which the Date of Termination occurs, if
earned and unpaid, plus (C) the product of (1) Executive’s
Termination Bonus Amount, and (2) the Pro Ration Percentage, plus
(D) any accrued but unused vacation pay;
and
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(b)
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the
amount equal to one and a half (1.5) times the sum of (A) Executive’s
Base Salary in effect as of the Date of Termination, plus
(B) Executive’s Termination Bonus Amount.
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(iii) Notwithstanding
anything to the contrary in the applicable stock option or restricted stock unit
agreement (including, without limitation, the agreements evidencing the Stock
Option and the Restricted Stock Unit Grant), the exercisability of all
outstanding stock options, restricted stock awards, restricted stock unit
awards, stock appreciation rights and other equity participation rights then
held by Executive with respect to the common stock of the Company (or securities
exchanged for such common stock in connection with the Change-in-Control of the
Company) shall accelerate in full and Executive shall be entitled to exercise
any such options or other awards or equity appreciation rights until eighteen
(18) months after the Date of Termination; and
(iv) The
Company shall provide Executive, at the Company’s sole cost, with executive
outplacement assistance in accordance with the Company’s then-current executive
outplacement program, provided that no outplacement benefits shall be provided
after the end of the second calendar year following the calendar year in which
the Date of Termination occurs.
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4.3.5. Without Cause or with Good
Reason During a Potential Change-in-Control Period. If, during
the existence of a Potential Change-in-Control Period, Executive shall terminate
Executive’s employment pursuant to Section 4.1.6 or the Company shall terminate
Executive’s employment pursuant to Section 4.1.4, then in any such event,
subject to the general release requirement in Section 4.5, Executive shall
receive the payments, benefits and rights set forth in Sections 4.3.4, except
that any amounts payable pursuant to Section 4.3.4(i)(b) shall be paid over the
eighteen (18) month period that commences on the Date of Termination, if such
date occurs more than thirty (30) days prior to the Change-in-Control of the
Company that is the subject of the Potential Change-in-Control Period;
otherwise, such amount shall be paid in a lump sum on the date that such
Change-in-Control of the Company occurs. Notwithstanding the
foregoing, if the Change-in-Control of the Company (that is the subject of the
Potential Change-in-Control Period) occurs more than thirty (30) days after the
Date of Termination, and payments of the amount payable pursuant to Section
4.3.4(i)(b) have begun over an 18-month period, pursuant to the preceding
sentence, the balance of the amount payable pursuant to Section 4.3.4(i)(b)
shall be paid to Executive in a lump sum on the date such Change-in-Control of
the Company occurs.
4.4. Section
409A.
4.4.1. Payments
to Executive under this Article 4 shall be bifurcated into two portions,
consisting of a portion that does not constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code and a portion that
does constitute nonqualified deferred compensation. Payments
hereunder shall first be made from the portion, if any, that does not consist of
nonqualified deferred compensation until it is exhausted and then shall be made
from the portion that does constitute nonqualified deferred
compensation. However, if Executive is a “specified employee” as
defined in Section 409A(a)(2)(B)(i) of the Code, to the extent required by
Section 409A of the Code, the commencement of the delivery of any such payments
that constitute nonqualified deferred compensation will be delayed to the date
that is six (6) months and one (1) day after Executive’s Date of Termination
(the “Earliest Payment Date”). Any payments that are delayed pursuant
to the preceding sentence shall be paid on the Earliest Payment
Date. The determination of whether, and the extent to which, any of
the payments to be made to Executive hereunder are nonqualified deferred
compensation shall be made after the application of all applicable exclusions
under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended
to qualify for the exclusion for separation pay due to involuntary separation
from service set forth in Treasury Reg. § 1.409A-1(b)(9)(iii) must be paid no
later than the last day of the second taxable year of Executive following the
taxable year of Executive in which the Date of Termination occurs.
4.4.2. The
parties acknowledge and agree that the interpretation of Section 409A of the
Code and its application to the terms of this Agreement are uncertain and may be
subject to change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to Executive that would be deemed
to constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code are intended to comply with Section 409A of the
Code. If, however, any such benefit or payment is deemed to not
comply with Section 409A of the Code, the Company and Executive agree to
renegotiate in good faith any such benefit or payment (including, without
limitation, as to the timing of any severance payments payable hereof) so that
either (i) Section 409A of the Code will not apply or (ii) compliance with
Section 409A of the Code will be achieved; provided, however, that any deferral
of payments or other benefits shall be only for such time period as may be
required to comply with Section 409A; and provided, further, that
payments or other benefits that occur as a result of the application of this
section shall themselves comply with Section 409A of the
Code.
4.5. General
Release. In order to be eligible to receive any of the salary
or benefits under Article 4 hereof, Executive (or his personal representative,
if applicable) shall be required to execute and deliver to the Company (without
subsequent revocation) a general release of claims against the Company,
excluding any claims concerning the Company’s obligations under this Agreement
in a form provided by and reasonably satisfactory to the Company which shall
contain a release of claims by Executive substantially in the form attached
hereto as Exhibit
A, and shall be required to sign such other agreements as executive
employees of the Company are generally required to sign if Executive shall not
have already done so, provided, however, that such other agreements do not cause
any changes to the provisions herein or in any restricted stock, restricted
stock unit, stock option or similar compensatory or benefit agreement between
the Executive and the Company. The Company shall have no other
liability or obligation under this Agreement to Executive’s executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through Executive.
Article
5. Non-Competition and
Non-Solicitation
5.1. Non-Competition and
Non-Solicitation. Executive acknowledges the highly
competitive nature of the businesses of the Company and accordingly agrees that
while Executive is employed by the Company and for a period of the longer of (i)
one year after the Date of Termination, in the case of a termination other than
within 12 months after a Change-in-Control of the Company, and (ii) 18 months
after the Date of Termination in the case of a termination within 12 months
after a Change-in-Control of the Company:
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5.1.1. Executive
will not perform services for or own an interest in (except for investments of
not more than five percent (5%) of the equity interest in a company or
entity in which Executive does not actively participate in management) any firm,
person or other entity that competes or plans to compete in any geographic area
with the Company in the business of the development, manufacture, promotion,
distribution or sale of digital film, video or audio production tools,
including, but not limited to, editing, live sound, broadcast or newsroom
products or automation systems, content-creation tools, media storage, computer
graphics or on-air graphics, or other business or services in which the Company
is engaged or plans (as evidenced by consideration by the Company’s executive
staff or by the Board) to engage at the time Executive’s employment with the
Company terminates.
5.1.2. Executive
will not directly or indirectly assist others in engaging in any of the
activities in which Executive is prohibited to engage by
Section 5.1.1.
5.1.3. Executive
will not directly or indirectly either alone or in association with others (i)
solicit or employ, or permit any organization directly or indirectly controlled
by Executive to solicit or employ, any person who was employed by the Company or
was engaged as an independent contractor at any time within six
months prior to such solicitation or employment, or (ii) solicit, hire or engage
as an independent contractor, or permit any organization directly or indirectly
controlled by Executive to solicit, hire or engage as an independent contractor,
any person who was employed by the Company or was engaged as an independent
contractor at any time within six months prior to such solicitation, hiring or
engagement or (iii) solicit, or permit any organization directly or indirectly
controlled by Executive, to solicit any person who is an employee of the Company
to leave the employ of the Company.
5.1.4. Executive
will not directly or indirectly either alone or in association with others
solicit, or permit any organization directly or indirectly controlled by
Executive to solicit, any current or future customer or supplier of the Company
to cease doing business in whole or in part with the Company or otherwise
adversely modify his, her or its business relationship with the
Company.
5.2. Reasonableness of
Restrictions. It is expressly understood and agreed that
(i) although Executive and the Company consider the restrictions contained
in this Article 5 to be reasonable, if a final judicial determination is made by
a court of competent jurisdiction that the time or territory or any other
restriction contained in this Article 5 is unenforceable, such restriction
shall not be rendered void but shall be deemed to be enforceable to such maximum
extent as such court may determine or indicate to be enforceable and
(ii) if any restriction contained in this Agreement is determined to be
unenforceable and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any other
restrictions contained herein.
5.3. Remedies for
Breach. Executive acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
this Article 5 would be inadequate and, in recognition of this fact,
Executive agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company, without posting any bond, shall be
entitled to obtain equitable relief in the form of specific performance,
temporary restraining orders, temporary or permanent injunctions or any other
equitable remedy which may then be available. In addition, in the
event of a breach of Article 5 which is not remedied after ten (10) days’
written notice from the Company (if such breach is susceptible to cure), whether
or not Executive is employed by the Company, the Company shall cease to have any
obligations to make payments to Executive under this Agreement (except for
payments, if any, earned prior to such breach).
Article
6. Assignment of Inventions and
Non-Disclosure
Intentionally
Left Blank.
Article
7. Miscellaneous
7.1. Surrender of Equity
Award. Executive agrees for consideration of $10 to surrender
all rights title and interest in the option to purchase 50,000 shares of the
Company’s common stock that was granted to the Executive on August 19, 2009
effective the Effective Date. Executive acknowledges that he has no
right, title or interest in any shares represented by such option after the
Effective Date. Executive further acknowledges and agrees that he
shall be solely responsible for reporting and paying any and all taxes, if any,
arising from or relating to such option and the rescission thereof.
7.2. Indemnification
Executive shall be entitled to indemnification as set forth in Article Eleventh
of the Company’s Certificate of Incorporation, a copy of which has been provided
to Executive. A directors’ and officers’ liability insurance policy
(or policies) shall be kept in place, during the Term of this Agreement and
thereafter until at least the fourth anniversary of the date the Agreement is
terminated for any reason, providing coverage to Executive that is no less
favorable to him in any respect (including, without limitation, with respect to
scope, exclusions, amounts and deductibles) than the coverage then being
provided to any other present or former officer or director of the
Company.
8
7.3. No
Mitigation. The Company agrees that, except as specifically
set forth in Section 4.3.3(iv) and Section 4.3.4(ii) regarding COBRA premium
reimbursement, (i) if Executive's employment is terminated during the term of
this agreement, Executive is not required to seek other employment or to attempt
in any way to reduce any amounts payable to Executive by the Company and (ii)
the amount of any payment provided hereunder shall not be reduced by any
compensation earned by Executive.
7.4. Obligation of
Successors. Any successor to substantially all of the
Company’s assets and business, whether by merger, consolidation, purchase of
assets or otherwise, shall succeed to the rights and obligations of the Company
hereunder. As used in this Agreement, “Company” shall mean the
Company as defined above and any successor to substantially all of its assets
and business or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
7.5. Notice. All
notices required or permitted hereunder shall be in writing and deemed
effectively given (i) when delivered in person, (ii) on the third
business day after mailing by registered or certified mail, postage prepaid,
(iii) on the next business day after delivery to an air courier for next
day delivery, paid by the sender, or (iv) when sent by telecopy or
facsimile transmission during normal business hours (9:00 a.m. to 5:00 p.m.)
where the recipient is located (or if sent after such hours, as of commencement
of the next business day), followed within twenty-four (24) hours by
notification pursuant to any of the foregoing methods of delivery, in all cases
addressed to the other party hereto as follows:
(a) If
to the Company:
Xxx Xxxx
Xxxx
Xxxxxxxxx,
XX 00000
Attention: General
Counsel
Facsimile: (000)
000-0000
(b) If
to Executive:
Xxxxxx
Xxxx
00 Xxxxx
Xxx
Xxxxxxx,
XX 00000
or at
such other address or addresses as either party shall designate to the other in
accordance with this section.
7.6. Survival. The
respective rights and obligations of the parties under this Agreement shall
survive any termination of Executive’s employment to the extent necessary to the
intended preservation of such rights and obligations. Notwithstanding
the termination of this Agreement or Executive’s services hereunder for any
reason, Article 5 shall survive any such termination.
7.7. Complete Agreement;
Amendments. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements between the parties with respect to the subject matter
hereof, including, but not limited to, the Offer Letter dated May 29, 2008 by
and between the Company and the Executive. This Agreement may not
be modified or amended except upon written amendment approved by the
Compensation Committee, and executed by a duly authorized officer of the Company
and by Executive. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
time prior or subsequent time. Notwithstanding the foregoing, the
Company may unilaterally modify or amend this Agreement if such modification or
amendment is approved by the Compensation Committee and made to all other
executive employment agreements entered into between the Company and its
then-current executive officers.
7.8. Applicable
Law. This Agreement shall be interpreted in accordance with
the laws of the Commonwealth of Massachusetts (without reference to the
conflicts of laws provisions thereof) and the parties hereby submit to the
jurisdiction of the courts of that state.
9
7.9.
Waiver of Jury
Trial. Executive hereby irrevocably waives any right to a
trial by jury in any action, suit, or other legal proceeding arising under or
relating to any provision of this Agreement.
7.10. Severability. If
any non-material provision of this Agreement shall be held invalid or
unenforceable, it shall be deemed to be deleted or qualified so as to be
enforceable or valid to the maximum extent permitted by law, and the remaining
provisions shall continue in full force and effect.
7.11. Binding
Effect. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, assigns and personal
representatives, except that the duties, responsibilities and rights of
Executive under this Agreement are of a personal nature and shall not be
assignable or delegatable in whole or in part by Executive, except to the extent
that the rights of Executive hereunder may be enforceable by his heirs,
executors, administrators or legal representatives. If Executive
should die while any amounts would still be payable to Executive hereunder if
Executive had continued to live, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of this Agreement to
Executive’s devisee, legatee or other designee or, if there be no such designee,
to Executive’s estate.
7.12. Captions. Captions
of sections have been added only for convenience and shall not be deemed to be a
part of this Agreement.
7.13. Withholding. The
Company may withhold from any amounts payable under this Agreement such federal,
state, local or foreign taxes as shall be required to be withheld pursuant to
any applicable law or regulation.
7.14. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute one in the
same instrument.
7.15. Non-Disparagement. Executive
will not disparage the Company or any of its directors, officers, agents or
employees or otherwise take any action which could reasonably be expected to
adversely affect the reputation of the Company or the personal or professional
reputation of any of the Company’s directors, officers, agents or
employees. Nothing in this paragraph will prevent Executive from
disclosing any information to his attorneys or in response to a lawful subpoena
or court order requiring disclosure of information.
7.16. Further
Assurances. Each party agrees to furnish and execute
additional forms and documents, and to take such further action, as shall be
reasonable and customarily required in connection with the performance of this
Agreement or the payment of benefits hereunder. In addition,
following the termination of Executive’s employment with the Company, Executive
shall reasonably cooperate with the Company to effect a smooth transition with
respect to any activities Executive engaged in on behalf of the Company, at the
Company’s behest, and otherwise in the conduct of Executive’s activities as an
employee of the Company, including, without limitation, providing the Company
with (or directing the Company to the location of) business records and other
information relating to the Company’s business.
IN
WITNESS WHEREOF, the undersigned have duly executed and delivered this Executive
Employment Agreement as of the date first above written.
By: /s/ Xxx
Xxxxxx
Name: Xxx
Xxxxxx
Title:
Executive Vice President, Chief Financial Officer and Chief Administrative
Officer
/s/ Xxxxxx
Xxxx
Xxxxxx
Xxxx
10
Exhibit A
Release provision pursuant to Section 4.5 of the Executive Employment Agreement
In
consideration of the payment of the severance benefits, which the Executive
acknowledges he would not otherwise be entitled to receive, the Executive hereby
fully, forever, irrevocably and unconditionally releases, remises and discharges
the Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities, and collectively referred to hereinafter as the
“Released Parties”) from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money, costs, accounts,
reckonings, covenants, contracts, agreements, promises, doings, omissions,
damages, executions, obligations, liabilities, penalties and expenses (including
attorneys’ fees and costs), of every kind and nature that the Executive ever had
or now has against any or all of the Released Parties, whether existing or
contingent, known or unknown, including but not limited to: any and all claims
arising out of or relating to Executive’s employment with and/or separation from
any of the Released Parties or arising out of your relation in any capacity to
any of the Released Parties; any and all claims under any Federal, state, or
local constitution, law, or regulation; any and all wage and hour claims and
claims for discrimination, harassment, or retaliation (including claims of age
discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §621 et
seq. or any other law prohibiting age discrimination); any and all common law
claims including, but not limited to, actions in defamation, intentional
infliction of emotional distress, misrepresentation, fraud, wrongful discharge,
and breach of contract; and any and all claims to any non-vested ownership
interest in the Company, contractual or otherwise. This release is intended to
be all encompassing and to act as a full and total release of all claims,
whether specifically enumerated above or not, that Executive may have or have
had against any or all of the Released Parties up to the date Executive signs
this Agreement, but nothing in this Agreement prevents Executive from filing a
charge with, cooperating with, or participating in any proceeding before the
Equal Employment Opportunity Commission or a state fair employment practices
agency (except that Executive acknowledges that he may not be able to recover
any monetary benefits in connection with any such claim, charge or proceeding
and provided further, however, that nothing herein is intended to be construed
as releasing the Company from any obligation set forth in this
Agreement.
The
Executive acknowledges that he has been given at least twenty-one (21) days to
consider this Agreement and that the Company advised him to consult with any
attorney of his own choosing prior to signing this Agreement. The
Executive further acknowledges that he may revoke this Agreement for a period of
seven (7) days after the execution of this Agreement, and the Agreement shall
not be effective or enforceable until the expiration of this seven (7) day
revocation period. The Executive understands and agrees that by entering into
this Agreement he is waiving any and all rights or claims he might have under
the Age Discrimination in Employment Act, as amended by the Older Workers
Benefit Protection Act, and that he has received consideration beyond that to
which he was previously entitled.
11
