EXHIBIT 10.4
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AMENDED AND RESTATED AGREEMENT
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This Amended and Restated Agreement is entered into as of this 13th day of
February, 1997 between Parametric Technology Corporation, a Massachusetts
corporation (the "Company"), and Xxxxx X. Xxxxxx (the Officer"), and amends and
restates the Agreement dated October 2, 1995 with the Officer.
WHEREAS, the Officer is the Executive Vice President of Finance and
Administration, Chief Financial Officer and Treasurer of the Company; and
WHEREAS, to provide incentive for the Officer to maintain employment with
the Company, the Company desires to make the following arrangements with the
Officer concerning his termination of employment.
NOW, THEREFORE, the Company and the Officer hereby agree as follows:
1. Termination Notice. The Company agrees that it may not terminate
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the employment of the Officer unless (i) such termination is for Cause (as
defined below) or (ii) the Company has delivered to the Officer a written notice
of such termination (the "Termination Notice") at least six months in advance of
the termination date. The duties of the Officer during the period from the date
of delivery of a Termination Notice until the termination of his employment
shall be as determined by the Board of Directors.
2. Salary. During the period from the date of delivery of the
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Termination Notice (the "Notice Date") until the earlier of (i) the date six
months after the Notice Date or (ii) the date the Officer commences employment
with another company or organization, the Company shall pay to the Officer a
salary that is equal, on an annualized basis, to the highest annual salary
(excluding any bonuses) in effect with respect to the Officer during the six-
month period immediately preceding the Termination Notice.
3. Stock Options. Effective upon a Change in Control (as defined below)
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of the Company, all stock options granted to the Officer and then outstanding
under any Stock Option Plan (as defined below) of the Company shall become
exercisable in full, notwithstanding any vesting schedule or other provisions to
the contrary in the agreements evidencing such options; and the Company and the
Officer hereby agree that such option agreements are hereby and will be deemed
amended to give effect to this provision.
4. Definitions.
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(a) A termination by the Company of the Officer's employment for
"Cause" shall mean termination (i) for the Officer's willful and continued
failure to substantially perform his duties to the Company (other than any such
failure resulting from the Officer's incapacity due to physical or mental
illness or any such actual or perceived failure after a Change in Status of the
Officer), provided that (a) the Company has delivered a written demand for
substantial performance to the Officer specifically identifying the manner in
which the Company believes that the Officer has not substantially performed his
duties, and (b) the Officer has not cured such
failure within 30 days after such demand, (ii) for willful conduct by the
Officer which is demonstrably and materially injurious to the Company, or (iii)
for the Officer's willful violation of any material provision of any
confidentiality, nondisclosure, assignment of invention, noncompetition or
similar agreement entered into by the Officer in connection with his employment
by the Company. For purposes of this paragraph, no act or failure to act on the
Officer's part shall be deemed "willful" unless done or omitted to be done by
the Officer not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company.
(b) A "Change in Control" of the Company shall mean the occurrence of
any of the following events: (i) any "person", as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock in the Company) is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50% or more of
the combined voting power of the Company's then outstanding securities (other
than as a result of acquisitions of such securities from the Company); (ii)
individuals who, as of the date hereof, constitute the Board of Directors of the
Company (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to the date hereof whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the directors of the
Company) shall be, for purposes of this Agreement, considered to be a member of
the Incumbent Board; (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than (A) a merger
or consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation or (B) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in which no
"person" (as defined above) acquires more than 20% of the combined voting power
of the Company's then outstanding securities; or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets.
(c) A "Stock Option Plan" of the Company shall mean any stock option
or equity compensation plan of the Company in effect at any time, including
without limitation the 1987 Incentive Stock Option Plan and the 1997 Incentive
Stock Option Plan.
5. Term. This Agreement shall continue in effect until February 13,
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2000, unless extended by the mutual written consent of the Company and the
Officer.
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6. Successors.
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(a) This Agreement is personal to the Officer and without the prior
written consent of the Company shall not be assignable by the Officer otherwise
than by will or the laws of descent and distribution.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) 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 taken place. As used in this Agreement, "Company" shall mean the Company as
defined above and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement.
7. Miscellaneous.
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(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without reference to
principles of conflict of laws.
(b) This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(c) All notices and other communications hereunder shall be in writing
and shall be delivered by hand delivery, by a reputable overnight courier
service, or by registered or certified mail, return receipt requested, postage
prepaid, in each case addressed as follows:
If to the Company:
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Parametric Technology Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Corporate Counsel
If to the Officer:
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Xxxxx X. Xxxxxx
0 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Any notice or communication shall be deemed to
be delivered upon the date of hand delivery, one day following delivery to such
overnight courier service, or three days following mailing by registered or
certified mail.
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EXECUTED as of the date first written above.
PARAMETRIC TECHNOLOGY CORPORATION
By: /S/ C. Xxxxxxx Xxxxxxxx
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C. Xxxxxxx Xxxxxxxx
President and Chief Operating Officer
/S/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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