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EXHIBIT 10.07
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), made as of the 11th day of
June, 1996, is entered into between Computervision Corporation, a Delaware
corporation with its principal place of business at 000 Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxxxxxxx, 000 Xxxxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the "Executive").
WHEREAS, the Executive has been employed by the Company as Chief Executive
Officer of the Company pursuant to an Amended and Restated Employment Agreement
between the Executive and the Company, restated as of January 1, 1994 (the
"Employment Agreement"), and
WHEREAS, the Company and the Executive desire to amend and replace the
Employment Agreement with this Agreement,
NOW THEREFORE, the Company and the Executive hereby agree as follows:
1. TERMINATION OF FORMER EMPLOYMENT AGREEMENT. The Employment Agreement is
hereby amended in its entirety by this Agreement, and from and after the date of
this Agreement the terms and conditions of the Executive's employment shall be
governed exclusively by this Agreement.
2. TERM OF EMPLOYMENT. The Company hereby agrees to employ the Executive,
and the Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this Agreement. During the period commencing June 11,
1996 and ending
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October 31, 1996 (the "Full-time Employment Period"), the Executive shall be a
full-time employee of the Company and will serve as Chief Executive Officer and
Chairman of the Board of the Company. During the period commencing November 1,
1996 and ending June 30, 1997, the Executive shall be a part-time employee of
the Company and, in such capacity, will serve as Chairman of the Board and as a
Director of the Company (the "Part-time Employment Period"). During the
Part-time Employment Period, the Executive shall not be required to devote more
than sixty (60) percent of his business time to his duties as Chairman and as a
Director of the Company. During the period commencing July 1, 1997 and ending
June 30, 1998 (the "Consultation Period"), the Executive shall serve as a
consultant to the Company and continue to serve as Chairman of the Board and as
a Director of the Company. In his capacity as a consultant during the
Consultation Period, the Executive will not be obligated to devote more than
thirty (30) days in any twelve-month period or more than three (3) days in any
calender month to the performance of consulting services to or for the benefit
of the Company.
3. DUTIES AND RESPONSIBILITIES. The Executive, during the Full-time
Employment Period, shall, as a full-time employee of the Company, report to the
Board of Directors ("Board"), serve as Chairman of the Board of Directors of the
Company and Chairman of the Board's Executive Committee and Chief Executive
Officer.
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The Executive shall be available in Massachusetts during the Full-time
Employment Period to the extent necessary and appropriate for him to fulfill his
duties and responsibilities to the Company. During the Full-time Employment
Period, the Executive shall be subject to the supervision of, and shall have
such authority and responsibilities customary for a Chief Executive Officer and
as are delegated to him by, the Board. During the Part-time Employment Period,
the Executive shall have such authority and responsibilities as are delegated to
him by the Board, including, without limitation, assisting the Chief Executive
Officer and responsibility for the review, on behalf of the Board, of management
strategies, plans, policies and human resources, and for undertaking operational
and strategic activities and programs as agreed with the Board and the Chief
Executive Officer of the Company. The Executive shall also assist the Board in
evaluating management's performance.
The Executive, during the Consultation Period, shall serve as an adviser to
the Chief Executive Officer of the Company, and shall assist in promoting the
Company's business, subject to his commitment to the performance of consulting
services for the Company as provided in Section 2 of this Agreement.
The Executive hereby accepts such employment and consultancy and agrees to
undertake such duties and responsibilities and such other related duties and
responsibilities as the parties shall mutually agree to. During the Part-time
Employment Period and the
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Consultation Period, the Executive shall be permitted to pursue such other
business activities as he shall desire, PROVIDED that such activities do not
interfere with the performance of his part-time duties and his consulting
services (as the case may be) specified in Section 2 and Section 3 of this
Agreement.
The Executive agrees to abide by the applicable rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company and communicated
to him, except to the extent inconsistent with this Agreement.
4. Compensation.
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4.1 SALARY. During the Full-time and Part-time Employment Periods, the
Company shall pay the Executive, in biweekly installments, a salary of $785,000
per annum. During the Consultation Period, the Company shall pay the Executive,
in biweekly installments, the sum of $250,000 per annum (which shall include his
compensation for services as a Director).
4.2 SPECIAL BONUS FOR SERVICES. In consideration for his services
rendered to the Company prior to the date of this Agreement and as an inducement
to perform services for the Company as provided herein, the Company shall pay
the Executive a performance bonus in the aggregate amount of $2,227,000
(hereinafter "Special Bonus"), payable one-half ($1,113,500) on October 31, 1996
PROVIDED that the Executive continues to serve as Chief Executive Officer of the
Company through October 31, 1996,
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and the remaining one-half ($1,113,500) on June 30, 1997, PROVIDED that the
Executive continues to serve as Chairman of the Board from November 1, 1996
through June 30, 1997 SUBJECT, HOWEVER, to the Executive's rights to receive
such payments prior to the respective dates as set forth in Sections 13.2 and
13.3 of this Agreement.
5. HEALTH BENEFITS. During the Full-time and Part-time Employment Periods,
the Consultation Period and any period that he serves as a Director of the
Company, the Executive shall be entitled to participate in all of the health and
medical benefits that the Company currently has in place and/or establishes and
makes available for participation by key executives of the Company, to the same
extent as senior executives of the Company.
6. STOCK OPTION/STOCK INCENTIVE PLANS. During the Full-time and Part-time
Employment Periods, the Executive shall be entitled to participate in the
Company's stock option and other stock incentive plans for senior executive(s);
PROVIDED, HOWEVER, that the grant of any stock options shall be subject to the
discretion of the Board or a committee of the Board if the Board delegates such
authority to a committee. Stock options to purchase Common Stock of the Company
held by the Executive as of the date of this Agreement are hereinafter referred
to as "Outstanding Stock Options." The Outstanding Stock Options shall vest and
become immediately exercisable as provided in Section 9 of this Agreement.
Options awarded to the Executive after the
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date hereof shall continue to vest during the Full-time and Part-time Employment
Periods, the Consultation Period and for such period thereafter as the Executive
shall continue to serve as a Director of the Company. Notwithstanding any
provision to the contrary in the plans or agreements governing the Executive's
stock options, the periods governing the post-employment exercise of such stock
options shall not begin to run until such time as the Executive shall cease to
serve as a Director of the Company.
7. OTHER BENEFITS. During the Full-time and Part-time Employment Periods,
the Executive shall be entitled to participate in all incentive, saving and
retirement plans, practices and policies and programs applicable generally to
other peer executives of the Company and its affiliated companies. During the
Full-time and Part-time Employment Periods, the Consultation Period and for such
period thereafter as the Executive shall continue to serve as a Director of the
Company, the Executive shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies and programs
provided by the Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability, salary continuance,
employee life, group life, accidental death and travel accident insurance plans
and programs) to the extent applicable generally to other peer executives of the
Company and its affiliated companies.
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8. PERQUISITES. Under the Company's executive officers perquisite program,
the Executive shall, during the Full-time and Part-time Employment Periods, have
available $30,000 per annum to use for such purposes as financial planning, tax
preparation, club memberships, personal computers or automobile expenses,
PROVIDED that automobile expenses shall be limited to fifty percent (50%) of the
annual perquisite fund. In addition, during the Full-time and Part-time
Employment Periods and the Consultation Period, the Company shall reimburse the
Executive for business expenses incurred by the Executive in the performance of
his duties and responsibilities in accordance with the Company's expense
reimbursement program, subject to the Executive's presentation to the Company of
vouchers, expense statements and/or such other supporting documentation
evidencing the incurrence of such expenses.
9. VESTING OF STOCK OPTIONS AND ACCELERATION OF COMPENSATION PAYMENTS. All
of the Executive's Outstanding Stock Options shall continue to vest during the
Full-time and Part-time Employment Periods, the Consultation Period and for such
period thereafter as the Executive shall serve as a Director of the Company and
shall be and become immediately vested and exercisable in full, to the extent
not otherwise then vested or exercisable, on the date that (i) the Company shall
remove the Executive as Chairman of the Board prior to the expiration of the
Consultation Period without Cause (as defined below), (ii) the Executive's
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employment is terminated by his death or disability, (iii) the Executive
voluntarily terminates his employment or consultancy pursuant to Section 12.2 of
this Agreement or (iv) the Company and the Executive mutually agree to
termination of the Executive's employment as Chairman of the Board prior to the
expiration of the Consultation Period. In addition, if the Executive's
employment as Chairman of the Board is terminated pursuant to clauses (i), (ii),
(iii) or (iv) of this Section 9, all of the payments to which the Executive is
entitled under this Agreement from the date of termination through the
expiration of the Consultation Period shall be accelerated and paid in a lump
sum to the Executive no later than fourteen (14) days after the date of such
termination. The terms and provisions relating to vesting and exercise after
employment termination in the Executive's Outstanding Options are hereby
replaced and superseded by the terms and provisions set forth in Section 6 and
in this Section 9.
10. EXPENSE SUPPLEMENT. During the six month period commencing January 1,
1997 and ending June 30, 1997, the company shall pay the Executive the sum of
$6,000 per month to assist the Executive in defraying travel, lodging and other
expenses that the Executive may incur. The Executive shall not be required to
account for such expenses.
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11. SECRETARIAL ASSISTANCE. During the Full-time and Part-time Employment
Periods and the Consultation Period, the Company shall provide the Executive
with an executive secretary to support the Executive's performance of his duties
and responsibilities as an employee or consultant and Chairman of the Board, as
the case may be.
12. EMPLOYMENT TERMINATION.
12.1 The employment of the Executive by the Company pursuant to this
Agreement shall terminate upon the occurrence of any of the following:
(a) Expiration of the Full-time and Part-time Employment Periods
and the Consultation Period, whichever occurs later, unless extended by mutual
agreement.
(b) At the election of the Company, for Cause, immediately upon
written notice by the Company to the Executive. For the purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to physical or mental
illness), after (1) a written demand for substantial performance is delivered to
the Executive by the Board or the Chief Executive Officer of the Company which
specifically identifies the manner in which the Board or Chief Executive Officer
of the Company believes that the Executive has not substantially performed the
Executive's
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duties and (2) the failure by the Executive to remedy such substantial
non-performance within a reasonable period of time after receipt of such written
demand, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters of the
entire membership of the Board at a meeting of the Board called and held for
such purpose (after reasonable notice is provided to the Executive and the
Executive is given an opportunity, together with counsel, to be heard before the
Board), finding that, in the good faith
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opinion of the Board, the Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the particulars thereof in
detail.
(c) Upon the death of the Executive or thirty days after
disability of the Executive. As used in this Agreement, the term "disability"
shall mean an event of disability entitling the Executive to coverage under the
Company's then current long-term disability plan.
12.2 The Executive may elect to terminate his employment upon thirty
(30) days' prior written notice if the Company fails to make any payment due the
Executive under this Agreement and such failure is not cured within thirty (30)
days after the Executive gives written notice of such failure to the Company.
13. Effect of Termination
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13.1 TERMINATION FOR CAUSE. In the event the Executive's employment is
terminated for Cause pursuant to Section 12.1(b), the Company shall pay to the
Executive the salary and benefits accrued and payable through his last day of
employment as an employee or consultant, as the case may be.
13.2 TERMINATION FOR DEATH OR DISABILITY. In the event the Executive's
employment is terminated by death prior to the expiration of the Full-time or
Part-time Employment Periods or the Consultation Period, the Company shall pay
to the estate of the Executive a lump sum amount equal to the sum of (a) the
salary, compensation or bonus which would otherwise be payable to the
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Executive up to the end of the sixth month after the death occurs and (b) the
remaining unpaid balance of the Special Bonus. If the Executive's employment is
terminated because of disability, the Company shall pay to the Executive (a) in
biweekly installments, the salary, additional compensation and bonus otherwise
payable to him up to the end of the month in which the Executive becomes
eligible for the Company's long-term disability benefits plan and (b) a lump sum
equal to the remaining unpaid balance of the Special Bonus.
13.3 TERMINATION FOR OTHER THAN CAUSE, DEATH OR DISABILITY. In the
event the Executive's employment is terminated other than for Cause, death or
disability or is terminated by the Executive in accordance with Section 12.2,
(i) the Company shall pay to the Executive (a) in biweekly
installments, commencing within thirty (30) days of the last day of actual
employment, the Executive's then current salary through the later of the
expiration of the Full-time and Part-time Employment Periods and the
Consultation Period, as the case may be and (b) in a lump sum cash payment,
payable within thirty (30) days of the last day of actual employment, the
remaining unpaid balance of the Special Bonus; and
(ii) until the expiration of the Full-time and Part-time
Employment Periods and the Consultation Period, whichever occurs later, the
Company shall continue to provide the Executive the benefits to which the
Executive and/or his family would be entitled to receive from the Company if his
employment or
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consultancy, as the case may be, had not been so terminated. For purposes of
eligibility for any retiree benefits pursuant to any retirement plans or
programs, the Executive shall be considered to have remained employed until the
end of the Consultation Period, as the case may be, and to have retired on the
last day of such period.
14. Gross-Up Payment.
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(a) Anything in this Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment benefit or distribution by the
Company to or for the benefit of the Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 14) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code ("Code") or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the
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Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 14(c), all determinations
required to be made under this Section 14, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Xxxxxx
Xxxxxxxx & Co. or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and the Executive within 15
business days of the receipt of notice from the Executive that there has been a
Payment, or such earlier time as is requested by the Company. In the event that
the Accounting Firm is serving as accountant or auditor for any individual,
entity or group such that it is not independent, the Executive shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 14(b), shall be paid by the Company to the Executive within five
days of the receipt of the Accounting Firm's determination. Any determination by
the Accounting Firm shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code
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at the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 14(c) and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim prior to the expiration of the 30-day period following the date on which
it gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due). If the Company
notifies the Executive in writing prior to the expiration of such period that it
desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
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(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim; PROVIDED, HOWEVER, that the Company shall bear and pay
directly all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 14(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial
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jurisdiction and in one or more appellate courts, as the Company shall
determine; PROVIDED, HOWEVER, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by
the Company pursuant to Section 14(c), the Executive becomes entitled to receive
any refund with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 14(c)) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). If, after the receipt by
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the Executive of an amount advanced by the Company pursuant to Section 14(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
15. Non-Compete
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(a) During the Full-time and Part-time Employment Periods and the
Consultation Period, the Executive will not directly or indirectly as an
individual proprietor, partner, stockholder, officer, employee, director, joint
venturer, investor, lender, or in any other capacity whatsoever (other than as
the holder of not more than one percent (1%) of the total outstanding stock of a
publicly held company), engage in the business of developing, producing,
marketing or selling products and/or services of the kind developed or being
developed, produced, marketed or sold by the Company while the Executive was
employed by the Company.
(b) At the option of the Company, for a period of one year after the
termination or expiration of the Consultation Period, the Executive will not
directly or indirectly:
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(i) become an owner, partner, joint venturer, stockholder,
investor (other than as the holder of not more than one percent (1%) of the
total outstanding stock), officer, employee, or director of (x) any company or
entity that produces, markets or sells products and/or services of the kind
developed or being developed, produced, marketed or sold by the Company while
the Executive was employed by the Company ("CAD/CAM" products and/or services)
which is in the top 10 by CAD/CAM revenue (excluding the Company) at the time of
termination based upon the then current Dataquest or similar survey) (for
purposes of this agreement, a "Top Ten Company") or (y) any company or entity
that has direct contractual relationships with any Top Ten Company to develop or
design products to the specifications of any such Top Ten Company, or
(ii) recruit, solicit or induce, or attempt to induce, any
employee or employees of the Company to terminate their employment with, or
otherwise cease their relationship with, the Company;
(c) If any restriction set forth in this Section 15 is found by any
court of competent jurisdiction to be unenforceable because it extends for too
long a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum period
of time, range of activities or geographic area as to which it may be
enforceable.
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(d) The restrictions contained in this Section 15 are necessary for
the protection of the business and goodwill of the Company and are considered by
the Executive to be reasonable for such purpose. The Executive agrees that any
breach of this Section 15 will cause the Company substantial and irrevocable
damage and therefore, in the event of any such breach, in addition to such other
remedies which may be available, the Company shall have the right to seek
specific performance and injunctive relief.
16. Proprietary Information and Development.
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16.1 Proprietary Information.
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(a) The Executive agrees that all information and know-how,
whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and shall be the exclusive property of the
Company. By way of illustration, but not limitation, Proprietary Information may
include inventions, products, processes, methods, techniques, formulas,
compositions, compounds, projects, developments, plans, research data, clinical
data, financial data, personnel data, computer programs, and customer and
supplier lists. The Executive will not disclose any Proprietary Information to
others outside the Company or use the same for any unauthorized purposes without
written approval by the Board, either during or after his employment, unless and
until such Proprietary Information has become public
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knowledge or is otherwise publicly known or available outside the Company
without fault by the Executive.
(b) The Executive agrees that all files, letters, memoranda,
reports, records, data, sketches, drawings, laboratory notebooks, program
listings, or other written, photographic, or other tangible material containing
Proprietary Information, whether created by the Executive or others, which shall
come into his custody or possession, shall be and are the exclusive property of
the Company to be used by the Executive only in the performance of his duties
for the Company.
(c) The Executive agrees that his obligation not to disclose or
use information, know-how and records of the types set forth in paragraphs (a)
and (b) above, also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the employee in the course of the Company's business.
16.2 Developments.
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(a) The Executive will make full and prompt disclosure to the
Company of all inventions, improvements, discoveries, methods, developments,
software, and works of authorship, whether patentable or not, which are created,
made, conceived or reduced to practice by the Executive or under his direction
or jointly with others during his employment by the
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Company, whether or not during normal working hours or on the premises of the
Company (all of which are collectively referred to in this Agreement as
"Developments").
(b) The Executive agrees to assign and does hereby assign to the
Company (or any person or entity designated by the Company) all his right, title
and interest in and to all Developments and all related patents, patent
applications, copyrights and copyright applications. However, this Section
16.2(b) shall not apply to Developments which do not relate to the present or
planned business or research and development of the Company and which are made
and conceived by the Executive not during normal working hours, not on the
Company's premises and not using the Company's tools, devices, equipment or
Proprietary Information.
(c) The Executive agrees to cooperate fully with the Company,
both during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of copyrights and patents (both in the
United States and foreign countries) relating to Developments. The Executive
shall sign all papers, including, without limitation, copyright applications,
patent applications, declarations, oaths, formal assignments, assignment of
priority rights, and powers of attorney, which the Company may deem necessary or
desirable in order to protect its rights and interests in any Development.
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16.3 OTHER AGREEMENTS. The Executive hereby represents that he is not
bound by the terms of any other agreement which will interfere or conflict with
the terms of this Agreement. The Executive further represents that his
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or in trust prior
to his employment with the Company. The representations contained in this
Section 16.3 are necessary for the protection of the business and goodwill of
the Company, and the Executive agrees that any breach of this Section has the
potential to cause the Company substantial and irrevocable damage, and
therefore, in the event of any such breach, the Company shall have the right to
immediately terminate this Agreement with no further obligations to the
Executive beyond his salary through his last day of actual work.
17. Indemnification.
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(a) The Company agrees that if the Executive is made a party, or is
threatened to be made a party, to any action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact that he is or was a director, officer or employee of the Company or is or
was serving at the request of the Company as a director, officer, member,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, including service with
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respect to employee benefit plans, whether or not the basis of such Proceeding
is the Executive's alleged action in an official capacity while serving as a
director, officer, member, employee or agent, the Executive shall be indemnified
and held harmless by the Company to the fullest extent permitted or authorized
by the Company's certificate of incorporation or bylaws or, if greater, by the
laws of the State of Delaware, against all cost, expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement), reasonably
incurred or suffered by the Executive in connection therewith, and such
indemnification shall continue as to the Executive even if he has ceased to be a
director, member, employee or agent of the Company or other entity and shall
inure to the benefit of the Executive's heirs, executors and administrators. The
Company shall advance to the Executive all reasonable costs and expenses
incurred by him in connection with a Proceeding within 20 days after receipt by
the Company of a written request for such advances. Such request shall include
an undertaking by the Executive to repay the amount of such advance if it shall
ultimately be determined that he is not entitled to be indemnified against such
costs and expenses.
(b) Neither the failure of the Company (including its board of
directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of any proceeding concerning payment of
amounts claimed by the Executive
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under Section 17(a) that indemnification of the Executive is proper because he
has met the applicable standard of conduct, nor a determination by the Company
(including its board of directors, independent legal counsel or stockholders)
that the Executive has not met such applicable standard of conduct, shall create
a presumption that the Executive has not met the applicable standard of conduct.
(c) The Company agrees to continue and maintain a directors' and
officers' liability insurance policy covering the Executive to the extent the
Company provides such coverage for its other executive officers.
18. NOTICES. All notices required or permitted under this Agreement shall
be in writing and shall be deemed effective upon personal delivery, facsimile
transmission (confirmed received) or upon deposit in the United States Post
Office, by registered or certified mail, postage prepaid, addressed to the other
party at the address shown above, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 15.
19. PRONOUNS. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns and pronouns shall include the plural, and vice
versa.
20. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements
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and understandings, whether written or oral, relating to the subject matter of
this Agreement.
21. AMENDMENT. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Executive.
22. SURVIVAL. The provisions of Sections 15, 16 and 17 shall remain in
effect in the event the Executive is terminated and shall survive the
termination and expiration of this Agreement.
23. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the Commonwealth of Massachusetts.
24. Successors And Assigns.
----------------------
(a) This Agreement shall be binding upon and inure to the benefit of
both parties and their respective successors and assigns, including any
corporation with which or into which the Company may be merged or which may
succeed to its assets or business, provided, however, that the obligations of
the Executive are personal and shall not be assigned by him.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had
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taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
25. Miscellaneous.
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25.1 No delay or omission by the Company in exercising any right under
this Agreement shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
25.2 The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope or
substance of any section of this Agreement.
25.3 In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year set forth above.
COMPUTERVISION CORPORATION
By: /s/ Xxxxx X. Xxxxx
-------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxx
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