AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 1 to Employment Agreement (the "Amendment")
dated as of this 22nd day of September, 2000 amends that certain Executive
Employment Agreement (the "Agreement") dated as of the 20th day of March 2000
by and between Moldflow Corporation (the "Company") and A. Xxxxxx Xxxxxx (the
"Executive").
WHEREAS, the Executive has been employed through the Company's
subsidiary Moldflow Pty. Ltd, an Australian corporation; and
WHEREAS, the Company and the Executive have agreed that the
Executive will assume an expatriate position in the United States and become
employed by the Company in its Massachusetts headquarters and such change in
location will require amendments to the Agreement.
NOW THEREFORE, the parties hereto agree as follows:
1. Section 3(a) shall be deleted in its entirety and replaced by the
following:
"(a) BASE SALARY AND INCENTIVE COMPENSATION. Executive's annual base
salary shall be $175,000, which amount reflects expected variation in expatriate
housing and cost of living costs. Executive's base salary shall be redetermined
annually by the Chief Executive Officer, the Board or a Committee thereof. The
annual base salary in effect at any given time is referred to herein as "Base
Salary." The Base Salary shall be payable in a manner consistent with the
general payroll policy of 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. Nothing in this Agreement shall serve to modify or diminish any
accumulated benefits to which Executive shall be entitled."
2. A new Section 3(e) shall be added to the Agreement as follows:
"(e)EXPATRIATE ASSIGNMENT. In connection with your expatriate assignment to
the United States, the Company will provide you with the following
additional benefits and compensation:
(i) The Company will pay the cost for you and your family of
obtaining the required visas and work permits in order
to relocate to the United States.
(ii) The Company will provide for the travel and related
costs associated with you and your family travelling to
the United States.
(iii) The Company will reimburse you for all reasonable moving
expenses incurred in moving your personal belongings and
one vehicle from Australia to the United States.
(iv) The Company will reimburse you for the costs of
temporary housing necessary until you move into your
permanent residence. Once you purchase and move into
your permanent residence, the Company will reimburse you
for the cost of appliances that must be purchased in the
United States in order to be utilized in the United
States.
(v) The Company will reimburse you for the cost of
terminating your existing car leases in Australia.
(vi) The Company will reimburse you for the cost of obtaining
local tax advice relevant to your obligations under the
United States and Australian tax requirements. This tax
advice will also include advice regarding the
structuring of your Company equity holdings in light of
your expatriate assignment.
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(vii) The Company will reimburse you for unusual or
extraordinary personal income taxes you are required to
pay in connection with your relocation back to
Australia.
(viii) Upon your return to Australia, the Company will either
directly pay or reimburse you for the real estate
commission actually paid upon the sale of your US
primary residence, the other closing costs associated
with such sale, the travel and moving expenses necessary
to relocate you, your family, your household goods and
your automobiles to Australia, and any required stamp
duty payable in Australia.
3. Section 5 shall be deleted in its entirety and replaced by the following:
"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
(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. "
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
MOLDFLOW CORPORATION
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Its: Vice President
EXECUTIVE
/s/ A. Xxxxxx Xxxxxx
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A. Xxxxxx Xxxxxx
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