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 Pty. Ltd. an Australian
corporation ("MPL") (ACN 005 647 496), which is a wholly owned subsidiary of
Moldflow Corporation, Moldflow Corporation, a Delaware corporation (the
"Company"), and Xxx X. Xxxxxxxxxx ("Executive").
WHEREAS, the Company and the Executive are party to an Executive Employment
Agreement dated as of November 1, 2002 (the "Prior Agreement"); and
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue 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, or in
the case of MPL, has provided payment of 30 days Base Salary in lieu of such
notice; 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 6 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 Vice President of Product Development 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 MPL and the Company.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive's annual base salary
shall be 191,200 Australian dollars. Executive's base salary shall be reviewed
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 the
general payroll policy of MPL. In addition to Base Salary, Executive shall be
eligible to participate in such incentive compensation plans and Employee
Benefit Plans as the Board or a Committee thereof shall determine from time to
time for senior executives. For the avoidance of doubt, MPL may determine in its
discretion that Executive will not be eligible to participate on the grounds
that participation would breach either relevant US securities laws or the
Australian Corporations Act (the "Corporations Act") or that the cost of
compliance with such laws is too prohibitive to allow for participation. 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 MPL and applicable to employees resident in Australia. Nothing in
this Agreement shall serve to modify or diminish any accumulated benefits to
which Executive shall be entitled.
(b) Vacations. Executive shall be entitled to the number of vacation days
in each calendar year, as set forth by the policies and procedures of MPL based
on Executive's length of service, and Executive shall also be entitled to all
paid holidays, sick days and other leave required per the laws of Australia or
Victoria, as applicable.
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(c) 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 MPL or 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. Unauthorized Disclosure.
Executive acknowledges that in the course of his employment with MPL (and,
if applicable, its predecessors), he has and will become acquainted with MPL's
and the Company's business affairs, information, trade secrets, and other
matters which are of a proprietary or confidential nature, including but not
limited to the Company's and its affiliates' and predecessors' operations,
business opportunities, price and cost information, finance, customer
information, product development information, business plans, various sales
techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, and other confidential information and knowledge
(collectively the "Confidential Information") concerning the Company's and its
affiliates' and predecessors' business. Executive understands and acknowledges
that such Confidential Information is confidential, and he agrees not to
disclose such Confidential Information to anyone outside the Company or its
subsidiary companies except to the extent that (i) Executive deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company or MPL; (ii) Executive is
required by order of a court of competent jurisdiction (by subpoena or similar
process) to disclose or discuss any Confidential Information, provided that in
such case, Executive shall promptly inform the Company of such event, shall
cooperate with the Company in attempting to obtain a protective order or to
otherwise restrict such disclosure, and shall only disclose Confidential
Information to the minimum extent necessary to comply with any such court order;
or (iii) such Confidential Information becomes generally known to and available
for use in the Company's industry, other than as a result of any action or
inaction by Executive. Executive further agrees that he will not during
employment and/or at any time thereafter use such Confidential Information in
competing, directly or indirectly, with the Company. At such time as Executive
shall cease to be employed by MPL, he will immediately turn over to the Company
all Confidential Information, including papers, documents, writings,
electronically stored information, other property, and all copies of them
provided to or created by him during the course of his employment with MPL. The
foregoing provisions shall be binding upon Executive's heirs, successors, and
legal representatives and shall survive the termination of this Agreement for
any reason.
5. Covenant Not to Compete
In consideration of the employment of the Executive and other valuable
consideration whether directly or indirectly received by Executive from Company,
and for the sole purpose of reasonably protecting the goodwill and business of
the Company, Executive agrees with and undertakes to the Company that, without
the prior written consent of the Company, Executive will not, for a period from
the commencement of this Agreement until:
(a) twelve months after the date of termination of his employment for
any reason;
(b) six months after the date of termination of his employment for
any reason
and within:
(i) the world, unless that area is in the circumstances found to be
too large to be enforceable at law or in equity, in which case;
(ii) the United States of America; the United Kingdom; France;
Germany; the Netherlands, Japan; Italy; Korea; Taiwan; China,
Australia; and New Zealand; unless that area is in the
circumstances found to be too large to be enforceable at law or
in equity, in which case;
(iii) Australia; unless that area is in the circumstances found to be
too large to be enforceable at law or in equity, in which case;
(iv) the State of Victoria; unless that area is in the circumstances
found to be too large to be enforceable at law or in equity, in
which case;
(v) the State of New South Wales; unless that area is in the
circumstances found to be too large to be enforceable at law or
in equity, in which case;
(vi) a hundred mile radius of each office from time to time of the
Company and its subsidiaries.
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do any one or more of the following:
(A) carry on or be engaged in or otherwise interested in or concerned
with, whether solely or as a partner, director, officer,
employee, associate, agent, shareholder, unit holder or
corporation, or in any other capacity, either directly or
indirectly, any person, enterprise, corporation, firm, trust,
joint venture, syndicate or business engaged in the manufacture,
sale or provision of products or services which are the same as
or substantially similar to or competitive with the products or
services manufactured, sold or provided by the Company;
(B) on his own account or for any person, enterprise, firm, trust,
joint venture, syndicate or business entice away from the Company
any employee or agent of the Company or any of its subsidiaries;
(C) on his own account for any person, enterprise, firm, trust, joint
venture, syndicate or business entice away from the Company any
customer of the Company or any of its subsidiaries;
(D) personally or by his employees or agents or by circulars, letters
or advertisements whether on his own account for any other
person, enterprise, firm, trust, joint venture, syndicate or
business interfere with the business or divulge to any person,
any information concerning the business of the Company or any of
its respective dealings, transactions or affairs.
The Executive acknowledges that each of the prohibitions and restrictions
contained in the provisions of Section 5 (a) will be read and construed and will
have effect as a separate severable and independent prohibition or restriction
and will be enforceable accordingly; (b) is reasonable as to period, territorial
limitation and subject matter; and (c) is no more than that which is reasonably
and necessarily required by the Company for the maintenance and protection of
its business and goodwill. It is the intention of the parties that all
combinations of the prohibitions and restrictions contained in the provisions of
Section 5 will apply and be enforceable and that only those which a court, in
exercising its discretion, may hold to be an unreasonable restraint of trade
will be severed.
The foregoing shall not prohibit Executive from owning up to 1% of the
outstanding stock of a publicly held company engaged in activities competitive
with that of the Company.
6. Termination. Except for termination as specified in Subparagraph 6(a), any
termination of Executive's employment by MPL or any such termination by
Executive shall be communicated by written notice of termination to the other
party hereto. Upon termination from MPL for any reason, Executive agrees to
deliver his resignation as a director of MPL or any of its subsidiaries or
affiliates upon the request of the Board. 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, MPL may terminate Executive's employment
hereunder.
(c) Termination by Company For Cause. At any time during the Period of
Employment, MPL may terminate Executive's employment hereunder for Cause if such
termination is approved by not less than a majority of the Board. 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, conduct by Executive that
would reasonably be expected to result in material injury to the reputation of
the Company or MPL if he were retained in his position with MPL; (C) continued,
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 and the reasons for the dissatisfaction from the Board; or (D) a
breach by Executive of any of the provisions contained in Paragraphs 4 and 5 of
this Agreement.
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(d) Termination Without Cause. At any time during the Period of
Employment, MPL 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 MPL of Executive's employment under this Agreement which does
not constitute a termination for Cause under Subparagraph 6(c) or result from
the death or disability of the Executive under Subparagraph 6(a) or (b) shall be
deemed a termination without Cause. If MPL 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, including but
not limited to Good Reason. If Executive provides notice to MPL and the Company
under Paragraph 1 that he does not wish to extend the Period of Employment, such
action shall be deemed a voluntary termination by Executive and one without Good
Reason. For purposes of this Agreement, "Good Reason" shall mean: (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 position 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 or MPL of any of their other
material obligations under this Agreement and the failure of the Company or MPL
to cure such breach within thirty (30) days after written notice thereof by
Executive; (E) the involuntary relocation of MPL'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 and except for any expatriate
assignments proposed by the Company and agreed to by Executive; or (F) the
failure of the Company or MPL to obtain the agreement from any successor to the
Company or MPL to assume and agree to perform this Agreement as required by
Paragraph 10.
(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 6(b) or under
Subparagraph 6(c), the date on which Notice of Termination is given; (C) if
Executive's employment is terminated by the Company under Subparagraph 6(d),
thirty (30) days after the date on which a Notice of Termination is given, or if
payment of thirty (30) days' Base Salary in lieu of notice is made by MPL, the
date on which the payment is made; and (D) if Executive's employment is
terminated by Executive under Subparagraph 6(e), thirty (30) days after the date
on which a Notice of Termination is given, unless the Company cures the Good
Reason event prompting the Executive to issue a Notice of Termination.
7. Compensation Upon Termination or During Disability.
(a) If Executive's employment terminates by reason of his death, MPL
shall, within ninety (90) days of death, pay in a lump sum amount to such person
as Executive shall designate in a notice filed with MPL 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
statutory entitlements and 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 death of Executive all stock
options granted to Executive on or after August 1, 2002, 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
such stock options granted to Executive. All other stock-based grants and awards
held by Executive shall vest or 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, if any, substantially similar to coverage they
received from MPL 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 or arrangement. Such payments, in the
aggregate, shall fully discharge the Company's obligations hereunder.
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(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 accrued and unpaid Base Salary plus accrued vacation and
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), until Executive's employment is terminated due to
disability in accordance with Subparagraph 6(b) or until Executive terminates
his employment in accordance with Subparagraph 6(e), whichever first occurs.
Upon the Date of Termination all stock options granted to Executive on or after
August 1, 2002 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 from MPL prior to the Date of Termination, if
any. 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 or arrangement.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then MPL shall, through the Date
of Termination, pay Executive his accrued and unpaid Base Salary and 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 granted on or after August 1, 2002 and 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.
(d) If Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e) or if Executive's employment is terminated by MPL without
Cause as provided in Subparagraph 6(d), then the MPL 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, MPL
shall provide the following benefits to Executive:
(i) MPL shall pay Executive an amount equal one (1) times the sum of
(A) 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"). The Termination Amount
shall be calculated by MPL 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 granted on or
after August 1, 2002 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 Termination Date in accordance with their
terms.
(iii) In addition to any other benefits to which Executive may be
entitled in accordance with MPL's then existing termination policies, MPL
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 coverage they
received from MPL prior to the Date of Termination, if any. 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 or arrangement.
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(iv) In addition to any other benefits to which Executive may be
entitled, at any time within 12 months following the Date of Termination,
the Executive may notify the Company and MPL that he desires to be
relocated to the United Kingdom. If Executive provides such notice to the
Company and MPL, then the Company or MPL will either directly pay or
reimburse the Executive for the actual cost of packing and moving his
personal and household effects from Australia to the UK. In addition, air
travel and accommodations, and incidental expenses while on route from
Australia to the UK will be reimbursed by the Company or MPL in accordance
with Company policy. The Executive acknowledges that the Company, MPL and
its related corporations and entities are not required to provide to
Executive any form of employment or engagement with MPL and its related
bodies corporate if Executive is relocated to the UK, unless the parties
expressly agree otherwise.
(e) If Executive's employment is terminated by MPL for Cause as provided
in Subparagraph 6(c), then MPL shall, through the Date of Termination, pay
Executive his accrued and unpaid Base Salary and accrued unpaid statutory
entitlements at the rate in effect at the time Notice of Termination is given.
Thereafter, the Company and MPL shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement. In addition, all
stock options granted to Executive after August 1, 2002 and held by Executive as
of the Date of Termination shall cease to vest as of the Date of Termination and
Executive shall have 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 vest or be canceled upon
the Termination Date in accordance with their terms.
(f) Nothing contained in the foregoing Subparagraphs 7(a) through 7(e)
shall be construed so as to affect Executive's rights or the Company's or MPL's
obligations relating to agreements or benefits that are unrelated to termination
of employment.
8. Change in Control Benefit. Upon a Change of Control of the Company the
following provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d).
(a) Change in Control.
(i) In the event that within 12 months following a Change of Control,
the Executive terminates his employment for Good Reason or if the
Executive's employment is terminated by MPL without Cause, MPL shall pay
Executive an amount equal to 1.5 times the sum of (A) Executive's Base
Salary 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 of 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
(collectively, the "Severance Amount"). The Severance Amount shall be
calculated by the Company or MPL 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. For purposes of this Agreement, "Base Salary" shall mean the
annual Base Salary in effect on the Date of Termination. In the event
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), he shall be entitled to the Severance Amount only if he
provides the Notice of Termination provided for in Subparagraph 6(a) within
sixty (60) days after the occurrence of the event or events which
constitute such Good Reason as specified in Subparagraph 6(e); and
(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 on or after August 1, 2002, 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; and
(iii) MPL 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, Executive's spouse and dependents to continue
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to receive health and dental insurance coverage substantially similar to
the coverage they received prior to the Date of Termination.
(iv) In addition to any other benefits to which Executive may be
entitled, at any time within 12 months following the Date of Termination,
the Executive may notify the Company and MPL that he desires to be
relocated to the United Kingdom. If Executive provides such notice to the
Company and MPL, then the Company or MPL will either directly pay or
reimburse the Executive for the actual cost of packing and moving his
personal and household effects from Australia to the UK. In addition, air
travel and accommodations, and incidental expenses while on route from
Australia to the UK will be reimbursed by the Company or MPL in accordance
with Company policy. The Executive acknowledges that the Company, MPL and
its related corporations and entities are not required to provide to
Executive any form of employment or engagement with MPL and its related
bodies corporate if Executive is relocated to the UK, unless the parties
expressly agree otherwise.
(b) Definitions. For purposes of this Paragraph 8, 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 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 ("Voting Securities") or (B)
the then outstanding shares of 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 (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, 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 or other actual or
threatened solicitation of proxies or consents by or on behalf of a person
other than the Board, 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 of 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) Common Stock; provided, however, that if
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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 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)
Common Stock, then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing clause (a).
9. 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 sent by recognized overnight
carrier, addressed as follows:
if to the Executive:
At his home address as shown
in MPL's personnel records;
if to the Company or MPL:
Moldflow Corporation
000 Xxx Xxxxxxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to: General Counsel
And to:
Chairman of the Board of Directors
Moldflow Pty. Ltd.
000-000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx
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.
10. Successor to Company. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and agree to perform this Agreement to the same extent that the Company would be
required to perform it if no 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.
11. 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. This Agreement shall expressly supercede
and replace any prior agreement and any other employment agreements,
arrangements and/or understandings between the Executive, the Company, MPL or
any other related corporation or entity, including that certain letter agreement
dated as of December 16, 2000. 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. This agreement is governed by the
laws of the State of Victoria, Australia. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of the
State of Victoria and courts entitled to hear appeals from those courts.
12. 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.
13. 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.
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14. Duty of Fidelity. Nothing in this agreement will be construed to limit
Executive's fiduciary duties or duty of fidelity to MPL.
15. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall reasonably cooperate with the Company and MPL 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 or MPL which relate to
events or occurrences that transpired while Executive was employed by MPL;
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 or MPL 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 15, including,
but not limited to, reasonable attorneys' fees and costs.
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 and Chief Executive Officer
-------------------------------------
MOLDFLOW PTY. LTD.
By: /s/ A. Xxxxxx Xxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------ --------------------------
Its: Director Its: Director
---------------- --------------------------
EXECUTIVE
/s/ Xxx X. Xxxxxxxxxx
---------------------
Xxx X. Xxxxxxxxxx
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