Company Letterhead] [DATE]
Exhibit
(e)(11)
[Company Letterhead]
[DATE]
[DATE]
Xxxxxxx Xxxxx
ADDRESS BLOCK
ADDRESS BLOCK
Dear Xxxxxxx:
As you may know, Autodesk, Inc. (“Autodesk”) and Moldflow Corporation (“Moldflow”) are entering in
an Agreement and Plan of Merger (the “Merger Agreement”), whereby Switch Acquisition Corporation, a
subsidiary of Autodesk would acquire all outstanding shares of Moldflow common stock (the
“Merger”). The purpose of this letter is for you to acknowledge certain compensation matters in
connection with the Merger.
In connection with the Merger, and pursuant to Section 8 of your Amended and Restated Executive
Employment Agreement, dated November 2, 2007 (the “Employment Agreement”), Moldflow will pay you a
lump sum of Six Hundred Seventy Five Thousand Eight Hundred Seventy Five Dollars ($675,875) which
is equal to: (i) 1.5 times the sum of (x) your base salary in effect on the date of this letter and
(y) your cash bonus calculated at an amount equal to the actual cash bonus that you would have
received had Moldflow met all of the aggressive targets in the annual bonus plan approved by
Xxxxxxxx’s Board of Directors for the current fiscal year, and (ii) a payment of $20,000 in lieu of
the health and dental insurance premiums for you, your spouse and your dependents described in
Section 8(a)(iii) of your Employment Agreement, in each case less applicable tax withholding (the
“Severance Payment”).
Subject to your signing a release of claims discussed below, the Severance Payment set forth under
your Executive Employment Agreement that would otherwise be paid upon the earlier of (i) your
separation from service from the Company (subject to a 6 month and 1 day delay, if applicable under
Section 409A of the Code), or (ii) January 1, 2009, and all such benefits and payments shall become
vested without further condition, prior to the Appointment Time, and shall be deposited by the
Company in a rabbi trust prior to the Appointment Time (and such amounts held in trust shall be
credited with interest as provided in the Executive Agreement) to be released by such trust to you
immediately upon the earlier of such events, and in the case of a January 1, 2009 payment,
irrespective of whether or not your employment with the Company is terminated.
In order to receive your Severance Payment, you must first sign, and not revoke, a general release
of claims in a form substantially similar to the form attached hereto as Exhibit A, prior
to the commencement of the Offer (as such term is defined in the Merger Agreement). If you do not
sign this general release of claims, you will not receive the Severance Payment.
Please note that in the event you receive the Severance Payment described above, you are not
entitled to any additional severance (including any other termination payments described in your
1
Employment Agreement or any other severance or change of control plans or polices) upon any
termination of your service with Autodesk or Moldflow (except as required by applicable law and
except as otherwise agreed to between you and Autodesk).
Notwithstanding the preceding paragraph, any future bonus payments (but specifically not to include
any reference to payments made in connection with the acceleration of or payment for any options or
restricted stock of Moldflow that you may hold) that you may be eligible to receive prior to or in
connection with the consummation of the Merger, or in connection with your service at Moldflow
prior to the consummation to the Offer or the Merger will be (i) governed by the terms set forth in
your existing Employment Agreement and the amended executive bonus program for the fiscal 2008 year
as approved by the Moldflow Board of Directors, or (ii) governed by the terms of any individual
retention agreement or employment arrangements if and to the extent entered into between you and
Autodesk.
To the extent the terms of this letter conflict with any agreement between you and Moldflow,
including, but not limited to, the provisions of your Employment Agreement, the terms of this
letter will govern. Upon execution of this letter until immediately prior to the Appointment Time,
the severance and termination provisions of your Employment Agreement remain intact, except for
your Change in Control Benefits (as described in Section 8 of your Employment Agreement) which will
be superseded by the terms of this letter. Immediately after the Appointment Time, this letter will
supersede and replace any and all prior agreements and understandings concerning the severance and
termination provisions in your Employment Agreement. Under no circumstances will you be entitled to
receive severance and termination benefits both under the Employment Agreement and under this
letter. In the event you receive the Severance Payment described above, the Severance Payment is
intended to be, and is, exclusive and in lieu of any other rights, payments, or remedies you may
otherwise be entitled to upon a termination for any reason pursuant to the terms of your Employment
Agreement.
To indicate your acceptance of the terms of this letter, please sign and date this letter in the
space provided below. A duplicate original is enclosed for your records. This terms contained in
this letter will terminate and will be void in their entirety if (i) the letter is not accepted,
signed, and returned by 11:00 AM, Eastern Daylight Time, on May 1, 2008, or (ii) the Merger is not
consummated for any reason.
| Sincerely, |
||||
| /s/ X. Xxxxxx Xxxxxx | ||||
| X. Xxxxxx Xxxxxx | ||||
| President & CEO | ||||
EXECUTIVE SIGNATURE PAGE FOLLOWS
-2-
EXECUTIVE SIGNATURE PAGE FOR ACKNOWLEDGEMENT LETTER
Agreed to and accepted:
| Signature: | /s/ Xxxxxxx Xxxxx
|
| Printed Name: | Xxxxxxx Xxxxx
|
| Date: | May 1, 2008 | |||||
| Enclosures |
| Duplicate Original Letter |
EXHIBIT A
RELEASE OF CLAIMS AGREEMENT
This Release of Claims Agreement (the “Release Agreement”) is made by and between Autodesk,
Inc. (the “Company”) and
(“Employee or You”).
WHEREAS, Employee was employed by the Company; and
WHEREAS, Employee and the Company have entered into a Separation Agreement as of , 2008
(the “Separation Agreement”);
NOW THEREFORE, in consideration of the mutual promises made herein, the Company and Employee
(collectively referred to as “the Parties”) hereby agree as follows:
1. Termination. Employee’s employment with the Company terminated on ,
2008 (the “Termination Date”).
1.2. Consideration. The Company agreed pursuant to Section 2 of the Separation Agreement to
provide Employee with certain benefits upon the termination of Employee’s employment, provided
Employee executes this Release Agreement and abides by the terms of the Separation Agreement.
1.3. Payment of Salary. Employee acknowledges and represents that the Company has paid all
salary, wages, bonuses, accrued vacation, commissions and any and all other benefits due to
Employee as of the Termination Date, other than benefits that remain outstanding pursuant to the
Separation Agreement or the Company’s employee benefit plans.
2. Release of Claims. Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee by the Company, other than
obligations that remain outstanding pursuant to the Employment Agreement or the Company’s employee
benefit plans.
2.1 Employee, on behalf of himself and his descendants, heirs and successors, xxxxxx fully
releases and discharges the Company and the its respective heirs, executors, affiliates, directors,
officers, agents, servants, stockholders, employees, representatives, successors and assigns, from
any and all claims, duties, obligations, actions, or causes of action whatsoever, whether presently
known or unknown, asserted or unasserted, which arise from or relate in any way to his employment
with the Company, or any transactions
between the Company as employer and Employee as employee, including, without limitation, any
and all claims relating to or arising from his employment relationship with the Company and/or the
termination of that relationship; any and all claims for wrongful termination of employment; any
and all claims for breach of a contract of employment, express or implied; any and all claims of
discrimination, harassment, and/or retaliation under Federal and State laws, including, but not
limited to, claims under the Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act; the Sarbanes Oxley Act, Occupational Safety and Health Administration Act (“OSHA”),
and any and all claims for attorneys’ fees and costs. Employee agrees that the release set forth
in this paragraph shall be and remain in effect in all respects as a complete general release of
the matters released. This release of claims does not apply to any rights or claims that you
cannot release as a matter of law, including any claims for indemnity under California Labor Code
Section 2802 (if applicable).
2.2 Employee acknowledges that he has had the opportunity and has been advised to consult with
legal counsel regarding this Release Agreement and the provisions of California Civil Code section
1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Employee, being aware of said Code section, expressly waives any rights he may have there
under, as well as under any other statute or common law principles of similar effect. Employee
specifically agrees that he is waiving any unknown claims.
2.3 Employee understands and agrees that he:
(i) has had a full twenty one (21) days within which to consider
this Release Agreement before executing it;
(ii). has carefully read and fully understands all of the provisions of this
Release Agreement;
(iii). is by this Release Agreement, releasing any and all claims, known or
unknown, that Employee has against the Company and/or the persons released above;
(iv). is knowingly, willingly and voluntarily agreeing to all of the terms set
forth in this Release Agreement;
(v). is xxxxxx advised to consult with an attorney of his choice prior to
executing this Release Agreement;
(vi). has a full seven (7) days following your execution of this Agreement to
revoke this Agreement, and Employee is hereby advised that this Agreement shall not
become effective or enforceable until that revocation period has expired; any such
revocation must be in writing and must be sent by certified mail, return receipt
requested, to the General Counsel, Autodesk Inc. 000 XxXxxxx Xxxxxxx, Xxx Xxxxxx,
XX 00000;
(vii). understands that any rights or claims under the Age Discrimination in
Employment Act of 1967 (29 U.S.C. § 621 et seq.) that may arise after the date this
Release Agreement is executed are not waived;
(viii). understands that this Release Agreement does not prohibit Employee from
filing a charge or complaint with the Equal Employment Opportunity Commission
(“EEOC”) and does not prohibit Employee from participating in any investigation or
other process conducted by the EEOC; and
(ix). is by reason of this Release Agreement and the release of claims herein,
receiving from the Company the pay and benefits described in Paragraph 2 of the
Separation Agreement, which pay and benefits are in addition to anything of value to
which Employee is already entitled.
3. Confidentiality.
3.1 Employee acknowledges that Employee has been exposed to and promises to maintain the
confidentiality of all confidential and proprietary information of the Company, including without
limitation, confidential information relating to: any and all research and development plans and
activities; products; product plans; source code; customer lists; business plans; marketing plans
and strategies; pricing and pricing strategies; Company’s employees and employee compensation; and
the business or confidential information of the Company’s customers.
3.2 Employee agrees to comply with the terms set forth in the Employee Agreements on
Intellectual Property and Product Source Code and executed by Employee on or about Employee’s hire
date and any updated confidentiality Employee may have signed while an employee (altogether
“Confidential Information Agreements”). Employee agrees that any program, document, drawing, or
other work Employee worked on at Company’s direction or on Company time, or using Company’s
equipment, or using any information proprietary to Company shall remain the property of the
Company.
3.3 Employee hereby confirms that Employee has returned all Company property in Employee’s
possession, and that Employee has returned all confidential or proprietary information. In the
event Employee violates any of these obligations, the Company shall
cease making the payments and providing the benefits to Employee as provided in Section 2 of
the Separation Agreement.
4. Miscellaneous
4.1 Costs. The Parties shall each bear their own costs, expert fees, attorneys’ fees and
other fees incurred in connection with this Release Agreement.
4.2 Authority. Employee represents and warrants that Employee has the capacity to act on
Employee’s own behalf and on behalf of all who might claim through him to bind them to the terms
and conditions of this Release Agreement.
4.3 No Representations. Employee represents that Employee has had the opportunity to consult
with an attorney and has carefully read and understands the scope and effect of the provisions of
this Release Agreement. Neither party has relied upon any representations or statements made by
the other party hereto which are not specifically set forth in this Release Agreement.
4.4. Severability. In the event that any provision hereof becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable or void, this Release Agreement shall
continue in full force and effect without said provision.
4.5 Entire Agreement. This Release Agreement and the Separation Agreement represent the
entire agreement and understanding between the Company and Employee concerning Employee’s
separation from the Company and supersede and replace any and all prior agreements and
understandings concerning Employee’s relationship with the Company and his compensation from the
Company. This Release Agreement may only be amended in writing signed by Employee and an executive
officer of the Company.
4.6 Governing Law. This Release Agreement shall be governed by the internal substantive laws,
but not the choice-of-law rules, of the State of California.
4.7 Effective Date. This Release Agreement is effective eight (8) days after it has been
signed by both Parties (the “Effective Date”).
4.8 Counterparts. This Release Agreement may be executed in counterparts, and each
counterpart shall have the same force and effect as an original and shall constitute an effective,
binding agreement on the part of each of the undersigned.
4.9 Voluntary Execution of Agreement. This Release Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the Parties hereto, with the full
intent of releasing all claims. The Parties acknowledge that:
(i) They have read this Release Agreement;
(ii) They have been represented in the preparation, negotiation and execution of this Release
Agreement by legal counsel of their own choice, or they have voluntarily declined to seek such
counsel;
(iii) They understand the terms and consequences of this Release Agreement and of the releases
it contains; and
(iv) They are fully aware of the legal and binding effect of this Release Agreement.
IN WITNESS WHEREOF, the Parties have executed this Release Agreement on the respective dates
set forth below.
| AUTODESK, INC. | ||||||
Dated: , 2008
|
By: | |||||
| Manager Name | ||||||
| Employee | ||||||
Dated: , 2008
|
By: | |||||
| (Sign Name) | ||||||
| (Print Name) | ||||||
