AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”) is made as of the 2nd
day of November, 2007 between Moldflow Corporation, a Delaware corporation (referred to herein as
including all of its subsidiaries, including MPL, the “Company”), and A. Xxxxxx Xxxxxx
(“Executive”).
WHEREAS, the Company and the Executive are party to an Executive Employment Agreement dated as
of August 16, 2002, as amended on July 8, 2005 (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 supercede all of the terms and conditions of the Prior Agreement;
provided, however that the parties agree that the terms and conditions of the Prior Agreement shall
have been in effect at all times from the date thereof until the date of this Amended and Restated
Executive Employment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties agree as follows:
1. Employment. The term of this Agreement shall extend from the date hereof (the “Commencement
Date”) until the first anniversary of the Commencement Date and shall automatically be extended for
one additional year on each anniversary thereafter unless, not less than 30 days prior to each such
date, either party shall have given notice that it does not wish to extend this Agreement;
provided, further, that following a Change in Control the term of this Agreement shall continue in
effect for a period of not less than twelve (12) months beyond the month in which the Change in
Control occurred. The term of this Agreement shall be subject to termination as provided in
Paragraph 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 President
and Chief Executive Officer and shall have such duties as may from time to time be prescribed by
the Board of Directors of the Company (the “Board”). Executive shall devote his full working time
and efforts to the business and affairs of the Company.
3. Compensation and Related Matters.
(a) Base Salary and Incentive Compensation. Executive’s annual base salary shall be $305,000.
Executive’s base salary shall be redetermined annually by 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 the Company. 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 of the Company. As used herein, the term “Employee Benefit Plans”
includes, without limitation, each pension and retirement plan; supplemental pension, retirement
and deferred compensation plan; savings and profit-sharing plan; stock ownership plan; stock
purchase plan; stock option plan; life insurance plan; medical insurance plan; disability plan; and
health and accident plan or arrangement established and maintained by the Company.
(b) Vacations. Executive shall be entitled to twenty (20) paid vacation days in each fiscal
year, which shall be accrued on a pro rata basis during the fiscal year, and Executive shall also
be entitled to all paid holidays given by the Company to its executives. Executive shall be
entitled to additional vacation based on any policy of the Company that provides for additional
vacation based on years of service or other criteria.
(c) Additional Benefits. During the Period of Employment the Company will reimburse the
Executive for the cost of a supplemental policy of long-term disability insurance for the
Executive.
(d) Indemnification and Directors’ and Officers’ Insurance. During Executive’s employment and
for the period of time following termination of the Executive for any reason during which time
Executive could be subject to any claim based on his position in the Company, Executive shall
receive the maximum indemnification protection from the Company as permitted by the Company’s
by-laws and shall receive directors’ and officers’ insurance coverage equivalent to that which is
provided to any other director or officer of the Company.
(e) Status of Australian Benefits and Accrued Entitlements. Pursuant to the terms of the
Prior Agreement, Executive was relocated by the Company from employment with the Company’s
subsidiary, Moldflow Pty. Ltd. (MPL”), an
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Australian company, to the Company’s headquarters in the United States. As part of such relocation,
Executive became an employee of the Company on September 22, 2000 and ceased to be an employee of
MPL on such date. In order to finalize Executive’s relationship with MPL, the parties agree as
follows:
| (i) | MPL has paid to Executive a lump sum of A$63,339, less any tax payable, in full and final settlement of Executive’s accrued annual leave while an employee at MPL. Executive and the Company agree that Executive shall have no further rights to accrue annual leave at MPL. | ||
| (ii) | MPL has paid to Executive a lump sum of A$77,077, less any tax payable, in full and final settlement of Executive’s accrued long service leave which accrued to Executive while an employee of MPL pursuant to the Long Service Leave Xxx 0000 (Vic) (the “LSL Act”.) Executive and the Company agree that Executive shall have no further rights to accrue long service leave at MPL. | ||
| (iii) | Executive and Company agree that no further superannuation contributions will be made for Xx. Xxxxxx by MPL and MPL’s legal requirement to make superannuation contributions on behalf of Executive ceased on September 22, 2000 when he became an employee of the Company. | ||
| (iv) | The Company will reimburse Executive for Australian personal income taxes that Executive may be required to pay in connection with the disposition of the shares of Moldflow stock held by Xxxxxx Investments, or its successor, provided that such reimbursement shall not exceed 25% of the difference between the cost basis of the shares and $4.50 per share. Any such reimbursement shall be calculated by the Executive and such calculations shall be submitted to the Company for confirmation prior to any payment under this Section. The Company will be required to make such payment as soon as reasonably practicable after agreement on such calculations but in any event no later than the end of the year following the year during which Executive incurs such Australian personal income taxes. |
4. Unauthorized Disclosure.
Executive acknowledges that in the course of his employment with the Company (and, if
applicable, its predecessors), he has and will become acquainted with 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 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; (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 the Company, 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 the Company. 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 for Executive’s employment by the Company under the terms provided in this
Agreement and as a means to aid in the performance and enforcement of the terms of the provisions
of Paragraph 4, Executive agrees that:
(a) during the Period of Employment and for a period of twelve (12) months thereafter,
regardless of the reason for termination of employment, Executive will not, directly or indirectly,
as an owner, director, principal, agent, officer, employee, partner, consultant, servant, or
otherwise, carry on, operate, manage, control, or become involved in any manner with any business,
operation, corporation, partnership, association, agency, or other person or entity which is
engaged in a business that is directly competitive with any of the Company’s products which are
produced or in development by the Company as of the date of Executive’s termination of employment,
anywhere in the world; provided, however, that the foregoing shall not prohibit Executive from
owning up to one percent (1%) of the outstanding stock of a publicly held company engaged in
activities competitive with that of the Company; and
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(b) during the term of Executive’s employment with the Company and for a period of twelve (12)
months thereafter, regardless of the reason for termination of employment, Executive will not
directly or indirectly solicit or induce any present or future employee of the Company or any
affiliate of the Company to accept employment with Executive or with any business, operation,
corporation, partnership, association, agency, or other person or entity with which Executive may
be associated, and Executive will not knowingly employ or cause any business, operation,
corporation, partnership, association, agency, or other person or entity with which Executive may
be associated to employ any present or future employee of the Company without providing the Company
with ten (10) days’ prior written notice of such proposed employment.
Should Executive violate any of the provisions of this Paragraph, then in addition to all
other rights and remedies available to the Company at law or in equity, the duration of this
covenant shall automatically be extended for the period of time from which Executive began such
violation until he permanently ceases such violation.
6. Termination. Except for termination as specified in Subparagraph 6(a), any termination of
Executive’s employment by the Company or any such termination by Executive shall be communicated by
written notice of termination to the other party hereto. Upon termination from the Company for any
reason, and if so requested, Executive agrees to deliver his resignation as a director of the
Company or any of its subsidiaries or affiliates upon the request of the Chairman of the Board of
Directors. Executive’s employment hereunder may be terminated without any breach of this Agreement
under the following circumstances:
(a) Death. Executive’s employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of Executive’s incapacity due to physical or mental illness,
Executive shall have been absent from his duties hereunder on a full-time basis for one hundred
eighty (180) calendar days in the aggregate in any twelve (12) month period, the Company may
terminate Executive’s employment hereunder.
(c) Termination by Company For Cause. At any time during the Period of Employment, the
Company may terminate Executive’s employment hereunder for Cause if such termination is approved by
not less than a majority of the 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 if he
were retained in his position with the Company; (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.
(d) Termination Without Cause. At any time during the Period of Employment, the Company may
terminate Executive’s employment hereunder without Cause if such termination is approved by a
majority of the Company’s Board of Directors. Any termination by the Company of Executive’s
employment under this Agreement which does not constitute a termination for Cause under
Subparagraph 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 the Company provides notice to Executive
under Paragraph 1 that it does not wish to extend the Period of Employment, such action shall be
deemed a termination without Cause.
(e) Termination by Executive. At any time during the Period of Employment, Executive
may terminate his employment hereunder for any reason, including but not limited to Good Reason.
If Executive provides notice to 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) an involuntary
material reduction in Executive’s Base Salary except for across-the-board reductions similarly
affecting all or substantially all management employees; (C) a breach by the Company of any of its
other material obligations under this Agreement and the failure of the Company to cure such breach
within thirty (30) days after written notice thereof by Executive; or (D) a material change in the
geographic location at which Executive must perform his services except for any expatriate
assignments proposed by the Company and agreed to by Executive To constitute a termination for Good
Reason, the Executive must provide notice to the Company within 90 days following the initial
existence of any event constituting Good Reason and may not terminate employment pursuant to this
Section unless the Company fails to take action to remedy the event constituting Good Reason within
30 days of such notice.
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(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; 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.
7. Compensation Upon Termination or During Disability.
(a) If Executive’s employment terminates by reason of his death, the Company shall, within
ninety (90) days of death, pay in a lump sum amount to such person as Executive shall designate in
a notice filed with the Company or, if no such person is designated, to Executive’s estate,
Executive’s accrued and unpaid Base Salary to the date of his death, plus the pro-rata portion
(based on months worked during the fiscal year) of the actual cash bonus that the Executive would
have received had the Company met all of the “at plan” targets in the annual bonus plan that has
been approved by the Board of Directors for the fiscal year in which Executive’s death occurred.
Upon the death of Executive (i) all stock options which would otherwise vest over the next twelve
(12) months shall immediately vest in Executive’s estate or other legal representatives and become
exercisable, and Executive’s estate or other legal representatives shall have twelve (12) months
from the Date of Termination or the remaining option term, if earlier, to exercise all such stock
options granted to Executive and (ii) all repurchase rights and other restrictions on the shares of
Restricted Stock held by the Executive which would otherwise lapse over the next twelve (12) months
shall immediately lapse. All other stock-based grants and awards held by Executive shall be
canceled upon the death of Executive in accordance with their terms. For a period of one (1) year
following the Date of Termination, the Company shall pay such health and dental insurance premiums
as may be necessary to allow Executive’s spouse and dependents to receive health and dental
insurance coverage, if any, substantially similar to coverage they received from the Company or 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.
(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, 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, Executive shall receive the pro-rata
portion (based on months worked during the fiscal year) of the actual cash bonus that the Executive
would have received had the Company met all of the “at plan” targets in the annual bonus plan that
has been approved by the Board of Directors for the fiscal year in which the date of termination
occurred and (i) all stock options which would otherwise vest over the next twelve (12) months
shall immediately vest and become exercisable, and Executive shall have twelve (12) months from the
Date of Termination or the remaining option term, if earlier, to exercise all such stock options
granted to Executive and (ii) all repurchase rights and other restrictions on the shares of
Restricted Stock held by the Executive which would otherwise lapse over the next twelve (12) months
shall immediately lapse. 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 the
Company prior to the Date of Termination, if any.
(c) If Executive’s employment is terminated by Executive other than for Good Reason as
provided in Subparagraph 6(e), then the Company shall, through the Date of Termination, pay
Executive his accrued and unpaid Base Salary at the rate in effect at the time Notice of
Termination is given. Thereafter, the Company shall have no further obligations to Executive
except as otherwise expressly provided under this Agreement. In addition, all vested but
unexercised stock options held by Executive as of the Date of Termination must be exercised by
Executive within three (3) months following the Date of Termination or by the end of the option
term, if earlier. All other stock-based grants and awards held by Executive shall vest or be
canceled upon the Date of Termination in accordance with their terms.
(d) If Executive terminates his employment for Good Reason as provided in Subparagraph 6(e) or
if Executive’s employment is terminated by the Company without Cause as provided in Subparagraph
6(d), then the Company shall, through the Date of Termination, pay Executive his accrued and unpaid
Base Salary at the rate in effect at the time Notice of Termination is given plus the pro-rata
portion (based on months worked during the fiscal year) of the actual cash bonus that the Executive
would have received had the Company met all of the “at plan” targets in the annual bonus plan that
has been approved by the Board of Directors for the fiscal year in which termination occurred. In
addition, subject to signing by Executive of a general release of claims in a form and manner
satisfactory to the Company (the “Release”) within 21 days after receipt of the Release from the
Company and the passage of the seven-day revocation period, , the Company shall provide the
following benefits to Executive:
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(i) The Company shall pay Executive an amount equal one (1) times the sum of (A)
the Executive’s Base Salary in effect on the Date of Termination and (B) the Executive’s
average annual bonus or other variable cash compensation (including commissions) over the
five (5) fiscal years immediately prior to the year of termination (the “Termination
Amount”). The Termination Amount shall be calculated by the Company within ten (10) business
days following the Date of Termination and communicated to the Executive in writing and
shall then be paid out in a lump sum within 30 days following the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, if at the time of the
Executive’s separation from service within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), the Executive is considered a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment
that the Executive becomes entitled to under this Agreement would be considered deferred
compensation subject to interest, penalties and additional tax imposed pursuant to Section
409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,
then no such payment shall be payable prior to the date that is the earlier of (i) six
months and one day after the Executive’s date of termination, or (ii) the Executive’s death.
Any such deferred payment shall earn interest calculated at the short-term applicable
federal rate. On or before the Executive’s Date of Termination, the Company shall make an
irrevocable contribution to a rabbi trust with an independent bank trustee in an amount
equal to the amount of such deferred payment plus interest.
(ii) Upon the Date of Termination, (i) all stock options which would otherwise vest
over the next twelve (12) months shall immediately vest and become exercisable, and
Executive shall have twelve (12) months from the Date of Termination or the remaining option
term, if earlier, to exercise all such stock options granted to Executive and (ii) all
repurchase rights and other restrictions on the shares of Restricted Stock held by the
Executive which would otherwise lapse over the next twelve (12) months shall immediately
lapse. All other stock-based grants and awards held by Executive shall 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 the Company’s then existing severance policies, the Company shall, for a
period of one (1) year commencing on the Date of Termination, pay such health and dental
insurance premiums as may be necessary to allow Executive and Executive’s spouse and
dependents to continue to receive health and dental insurance coverage substantially similar
to coverage they received from the Company 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
that he desires to be relocated to Australia. If Executive provides such notice to the
Company, then the Company will either directly pay or reimburse the Executive for the real
estate commission actually paid upon the sale of his primary US residence, the other closing
costs associated with such sale, the reasonable travel and moving expenses necessary to
relocate the Executive, his spouse, his family, his household goods and one vehicle to
Australia. In addition, the Company will reimburse the Executive for any required stamp
duty payable in Australia with respect to such relocation. The Executive acknowledges that
the Company, MPL and its related corporations and entities are not required to provide the
Executive with any form of employment or engagement with MPL if Executive is relocated to
Australia, unless the parties expressly agree otherwise.
(e) If Executive’s employment is terminated by the Company for Cause as provided in
Subparagraph 6(c), then the Company shall, through the Date of Termination, pay Executive his
accrued and unpaid Base Salary at the rate in effect at the time Notice of Termination is given.
Thereafter, the Company shall have no further obligations to Executive except as otherwise
expressly provided under this Agreement. In addition, all stock options held by Executive as of
the Date of Termination shall cease to vest as of the Date of Termination and Executive shall have
30 days from the Date of Termination or the remaining option term, if earlier, to exercise all such
vested stock options. All other stock-based grants and awards held by Executive shall be canceled
upon the 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 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
the Company without Cause, the
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Company shall pay Executive an amount equal to 1.5 times the sum of (A) the Executive’s Base
Salary and (B) the Executive’s cash bonus calculated at an amount equal to the actual cash
bonus that the Executive would have received if the Company had met all of the aggressive
targets in the annual bonus plan that has been approved by the Board of Directors for the
fiscal year in which the change of control occurred or, if greater, the fiscal year in which
the termination of employment is effective (collectively, the “Severance Amount”). The
Severance Amount shall be calculated by the Company within ten (10) business days following
the Date of Termination and communicated to the Executive in writing and shall then be paid
out in a lump sum within 30 days of the Date of Termination. For purposes of this
Agreement, “Base Salary” shall mean the annual Base Salary in effect on the Date of
Termination. Anything in this Agreement to the contrary notwithstanding, if at the time of
the Executive’s separation from service within the meaning of Section 409A of the Internal
Revenue Code of 1986, as amended (the “Code”), the Executive is considered a “specified
employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, and if any payment
that the Executive becomes entitled to under this Agreement would be considered deferred
compensation subject to interest, penalties and additional tax imposed pursuant to Section
409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code,
then no such payment shall be payable prior to the date that is the earlier of (i) six
months and one day after the Executive’s date of termination, or (ii) the Executive’s death.
Any such deferred payment shall earn interest calculated at the short-term applicable
federal rate. On or before the Executive’s Date of Termination, the Company shall make an
irrevocable contribution to a rabbi trust with an independent bank trustee in an amount
equal to the amount of such deferred payment plus interest.
(ii) Notwithstanding anything to the contrary in any applicable option agreement or
stock-based award agreement, upon a Change in Control, all stock options and other
stock-based awards granted to Executive by the Company shall immediately accelerate and
become exercisable or non-forfeitable as of the effective date of such Change in Control.
Executive shall also be entitled to any other rights and benefits with respect to
stock-related awards, to the extent and upon the terms provided in the employee stock option
or incentive plan or any agreement or other instrument attendant thereto pursuant to which
such options or awards were granted; and
(iii) The Company shall, for a period of one (1) year commencing on the Date of
Termination, pay such health and dental insurance premiums as may be necessary to allow
Executive, Executive’s spouse and dependents to continue to receive health and dental
insurance coverage substantially similar to the coverage they received prior to the Date of
Termination.
(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, or
its successor, that he desires to be relocated to Australia. If Executive provides such
notice to the Company, then the Company will either directly pay or reimburse the Executive
for the real estate commission actually paid upon the sale of his primary US residence, the
other closing costs associated with such sale, the reasonable travel and moving expenses
necessary to relocate the Executive, his spouse, his family, his household goods and one
vehicle to Australia. All such payment or reimbursement shall be made promptly and in no
event later than the last day of the second calendar year following the calendar year in
which the Date of Termination occurs. In addition, the Company will reimburse the Executive
for any required stamp duty payable in Australia with respect to such relocation. The
Executive acknowledges that the Company, MPL and its related corporations and entities are
not required to provide the Executive with any form of employment or engagement with MPL if
the Executive is relocated to Australia, unless the parties expressly agree otherwise.
(b) Gross Up Payment.
(i) Anything in this Agreement to the contrary notwithstanding, in the event it shall
be determined that any compensation, payment or distribution by the Company to or for the
benefit of Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise (the “Severance Payments”), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the
“Code”), or any interest or penalties are incurred by 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 Executive shall be entitled to receive
an additional payment (a “Gross-Up Payment”) such that the net amount retained by Executive,
after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local
income tax, employment tax and Excise Tax upon the payment provided by this subsection, and
any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to
the Severance Payments.
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(ii) Subject to the provisions of Subparagraph 8(b)(iii), all determinations required
to be made under this Subparagraph 8(b)(ii), including whether a Gross-Up Payment is
required and the amount of such Gross-Up Payment, shall be made by PricewaterhouseCoopers or
any other nationally recognized accounting firm selected by the Company (the “Accounting
Firm”), which shall provide detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the Date of Termination, if applicable, or at
such earlier time as is reasonably requested by the Company or Executive. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation applicable to
individuals for the calendar year in which the Gross-Up Payment is to be made, and state and
local income taxes at the highest marginal rates of individual taxation in the state and
locality of Executive’s residence on the Date of Termination, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and local
taxes. The initial Gross-Up Payment, if any, as determined pursuant to this Subparagraph
8(b)(ii), shall be paid to the taxing authorities as withholding taxes on behalf of
Executive at such time or times when the Excise Tax is due. If the Accounting Firm
determines that no Excise Tax is payable by Executive, the Accounting Firm shall be
required to (A) conclude that either (I) there has not occurred a change in the ownership or
effective control of the Company or a change in the ownership of a substantial portion of
the assets of the Company (as such terms are defined in Section 280G of the Code) or (II) no
portion of the Severance Payments constitutes “parachute payments” (within the meaning of
said Section 280G), in either case on the basis of “substantial authority” (within the
meaning of Treas. Reg. Section 1.6661-3) and (B) provide an opinion to that effect to both
the Company and the Executive, including the reasons therefor and an opinion that Executive
has substantial authority not to report any Excise Tax on his federal tax return. Any
determination by the Accounting Firm shall be binding upon the Company and Executive. As a
result of the uncertainty in the application of Section 4999 of the Code 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 (an
“Underpayment”). In the event that the Company exhausts its remedies pursuant to
Subparagraph 8(b)(iii) and 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,
consistent with the calculations required to be made hereunder, and any such Underpayment,
and any interest and penalties imposed on the Underpayment and required to be paid by
Executive in connection with the proceedings described in Subparagraph 8(b)(iii), shall be
promptly paid by the Company to the taxing authorities for the benefit of Executive.
(iii) 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 (10) business days after Executive knows of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be paid.
Executive shall not pay such claim prior to the expiration of the 30-day period following
the date on which he 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
Executive in writing prior to the expiration of such period that it desires to contest such
claim, provided that the Company has set aside adequate reserves to cover the Underpayment
and any interest and penalties thereon that may accrue, Executive shall:
(A) give the Company any information reasonably requested by the Company
relating to such claim,
(B) 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
selected by the Company,
(C) cooperate with the Company in good faith in order to effectively contest
such claim, and
(D) 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 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
Subparagraph 8(b)(iii), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego 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
Executive to pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Company shall determine; provided,
however, that if the Company
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directs Executive to pay such claim and xxx for a refund, the Company shall
advance the amount of such payment to Executive on an interest-free basis and shall
indemnify and hold 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 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
Executive shall be entitled to settle or contest, as the case may be, any other
issues raised by the Internal Revenue Service or any other taxing authority.
(iv) If, after the receipt by Executive of an amount advanced by the Company pursuant
to Subparagraph 8(b)(iii), Executive becomes entitled to receive any refund with respect to
such claim, Executive shall (subject to the Company’s complying with the requirements of
Subparagraph 8(b)(iii)) 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 Executive of an amount advanced by the Company pursuant to Subparagraph
8(b)(iii), a determination is made that Executive shall not be entitled to any refund with
respect to such claim and the Company does not notify 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.
(c) 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
8
Stock; provided, however, that if any person referred to in this sentence
shall thereafter become the beneficial owner of any additional shares of Voting Securities or
Common Stock (other than pursuant to a stock split, stock 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 the Company’s personnel records;
in the Company’s personnel records;
if to the Company:
Moldflow Corporation
000 Xxx Xxxxxxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Board of Directors
000 Xxx Xxxxxxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: Chairman of the Board of Directors
Copy to: General Counsel
or to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
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 material 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. 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 shall expressly supercede and replace the Prior
Agreement and any other employment agreements, arrangements and/or understandings between the
Executive, the Company, MPL or any other related corporation or entity. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of the
Commonwealth of Massachusetts (without regard to principles of conflicts of laws).
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.
14. Arbitration; Other Disputes. In the event of any dispute or controversy arising under or in
connection with this Agreement, the parties shall first try in good faith for a period of 30 days
to settle such dispute or controversy by mediation under the applicable rules of the American
Arbitration Association before resorting to arbitration. Following such time period, the parties
will settle any remaining dispute or controversy exclusively by arbitration in Boston,
Massachusetts in accordance with the rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator’s award in any court having jurisdiction.
Notwithstanding the above, the Company shall be entitled to seek a restraining order or injunction
in any court of competent jurisdiction to prevent any continuation of any violation of Paragraph 4
or 5 hereof.
15. Litigation and Regulatory Cooperation. During and after Executive’s employment,
Executive shall reasonably cooperate with the Company in the defense or prosecution of any claims
or actions now in existence or which may be brought in the future against or on behalf of the
Company which relate to events or occurrences that transpired while Executive was employed by the
Company; provided, however, that such cooperation shall not materially and adversely affect
Executive or expose Executive to an increased probability of civil or criminal litigation. The
Company shall also provide Executive with compensation on an hourly basis (to be derived from his
Base Salary) for requested litigation and regulatory cooperation that occurs after his termination
of
9
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: Name: |
/s/ Xxxxxx Xxxxxxxxx
|
|||||
| Title: | Chairman, Compensation Committee | |||||
| EXECUTIVE | ||||||
| /s/ A. Xxxxxx Xxxxxx | ||||||
| A. Xxxxxx Xxxxxx | ||||||
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