AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is
made as of the 8th day of July, 2005 between Moldflow Pty. Ltd. an Australian
corporation ("MPL") (ACN 005 647 496), which is a wholly owned subsidiary of
Moldflow Corporation, Moldflow Corporation, a Delaware corporation (the
"Company"), and Xxxxx Xxxxxxx ("Executive").
WHEREAS, the Company and the Executive are party to an Executive Employment
Agreement dated as of October 31, 2002 (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 supersede 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 Chief Technology Officer and shall have such duties as may from time to
time be prescribed by the Chief Executive Officer or 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. Effective as of August 16,
2002, Executive's initial annual base salary shall be $155,000 while employed by
the Company in the United States. At the completion of the expatriate assignment
and return to MPL, Executive's base salary shall be determined by the Chief
Executive Officer and approved by the Board of Directors based on competitive
salary conditions at that time in Australia. 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 or MPL, as the case may be. 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 or MPL and applicable to employees
resident in the country of residence of the Executive. Nothing in this Agreement
shall serve to modify or diminish any accumulated benefits to which Executive
shall otherwise be entitled.
(b) Vacations. While working for the Company in the United States,
Executive shall be entitled to twenty (20) paid vacation days in each calendar
year, which shall be accrued ratably during the calendar year. Upon return to
employment by MPL, Executive shall be entitled to annual leave based on his
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length of service with the Company and all its subsidiaries, and all paid
holidays, sick days and other leave given by the Company to its executives
resident in Australia or required per the laws of Australia or Victoria.
(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) Tax Advice. In order that the Executive may comply with his United
States and Australian tax obligations in connection with his relocation from the
United States to Australia, the Company will reimburse Executive for the
reasonable cost of obtaining taxation advice from a tax adviser related to the
period from the date of relocation to the present. Such benefit shall be fully
utilized by the Executive on a one-time basis and shall not be available for
future years.
(f) Return to Australia. At the completion of Executive's expatriate
assignment the Company will either directly pay or reimburse you for the actual
costs of packing and moving Executive's personal and household effects from the
united States to Australia. In addition, air travel and accommodations, and
incidental expenses while on route from the United States to Australia will be
reimbursed by the Company in accordance with Company policy. Upon such
relocation, the Executive will seek to sell the residence purchased while in the
United States. If such primary residence cannot be sold prior to the departure,
the Company will assume payment of the mortgage obligations on such residence
and will proceed with the disposition of the house. The Company will retain any
gain upon the sale of such house and will absorb any loss of the house is sold
for less than the amount of the mortgage.
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.
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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.
(c) Upon his return to Australia on the completion of his expatriate
assignment, Executive and the Company shall agree upon an appropriate amendment
to this Employment Agreement to include non-compete provisions that are legally
enforceable in Victoria Australia and which are as similar to the provisions set
forth in this Section 5 as possible.
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. 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, a plea
of nolo contendere by Executive or 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, willful and
deliberate 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 from the Board; or (D) a breach by Executive of any of the
provisions contained in Paragraphs 4 and 5 of this Agreement.
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(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) any removal, during the Period of Employment,
from Executive of his title as set forth in paragraph 2 of this Agreement; (C)
an involuntary reduction in Executive's Base Salary except for across-the-board
reductions similarly affecting all or substantially all management employees;
(D) 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; (E) the involuntary relocation
of the Company's offices at which Executive is principally employed or the
involuntary relocation of the offices of Executive's primary workgroup to a
location more than thirty (30) miles from such offices, or the requirement by
the Company that Executive be based anywhere other than the Company's offices at
such location on an extended basis, except for required travel on the Company's
business to an extent substantially consistent with Executive's business travel
obligations and except for any expatriate assignments proposed by the Company
and agreed to by Executive; or (F) the failure of the Company to obtain the
agreement from any successor to the Company to assume and agree to perform this
Agreement as required by Paragraph 10.
(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,
unless the Company cures the Good Reason event prompting the Executive to issue
a Notice of Termination.
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 and accrued vacation to the date of his death, plus his
accrued and unpaid incentive compensation (including any bonus payment, if any,
under Subparagraph 3(a) that is earned with respect to any financial period but
which has not yet been authorized for payment by the Board of Directors or any
committee thereof, which shall be paid if and when it is so authorized by the
Board of Directors). Upon the death of Executive all stock options granted to
Executive on or after August 1, 2002, 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. All other stock-based grants and awards held by Executive
shall vest or 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 substantially similar to coverage they received 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
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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 and accrued vacation and
accrued and unpaid incentive compensation (including any bonus payment, if any,
under Subparagraph 3(a) that is earned with respect to any financial period but
which has not yet been authorized for payment by the Board of Directors or any
committee thereof, which shall be paid if and when it is so authorized by the
Board of Directors), 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 all stock options granted to Executive on or after
August 1, 2002, 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. 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 prior to the Date of
Termination. In addition to the foregoing, any payments to which Executive may
be entitled under any employee benefit plan shall also be paid in accordance
with the terms of such plan or arrangement.
(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 and
accrued vacation 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 granted to Executive on or after August 1,
2002 and 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 and
accrued vacation at the rate in effect at the time Notice of Termination is
given and his accrued and unpaid incentive compensation (including any bonus
payment, if any, under Subparagraph 3(a) that is earned with respect to any
financial period but which has not yet been authorized for payment by the Board
of Directors or any committee thereof, which shall be paid if and when it is so
authorized by the Board of Directors). In addition, subject to signing by
Executive of a general release of claims in a form and manner satisfactory to
the Company, the Company shall provide the following benefits to Executive:
(i) The Company shall pay Executive an amount equal one (1) times the
sum of ( A) 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.
(ii) Upon the Date of Termination all stock options granted to
Executive on or after August 1, 2002, 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. All other stock-based grants and awards held by
Executive shall vest or be canceled upon the Termination Date in accordance
with their terms.
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(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 prior to the Date of Termination. In
addition to the foregoing, any payments to which Executive may be entitled
under any employee benefit plan shall also be paid in accordance with the
terms of such plan or arrangement.
(iv) In addition to any other benefits to which Executive may be
entitled, in the event that Executive is still resident in the United
States at the time of termination, then, at any time within 12 months
following the Date of Termination, the Executive may notify the Company and
MPL that he desires to be relocated to Australia. If Executive provides
such notice to the Company and MPL, then the Company or MPL will either
directly pay or reimburse the Executive for the actual cost of packing and
moving his personal and household effects from the United States to
Australia. In addition, air travel and accommodations, and incidental
expenses while on route from the United States to Australia will be
reimbursed by the Company or MPL in accordance with Company policy. The
Executive acknowledges that the Company, MPL and its related corporations
and entities are not required to provide to Executive any form of
employment or engagement with MPL and its related bodies corporate 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 granted to Executive after
August 1, 2002 and 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 vest or 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
Company shall pay Executive an amount equal to 1.5 times the sum of (A)
Executive's Base Salary and (B) the Executive's cash bonus or other
variable cash compensation (including commissions) that would be payable to
the Executive during the fiscal year in which the Change of Control
occurred if the Company and the Executive had met all of the targets
required for a full payment of such cash bonus or other variable cash
compensation (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. In the event
Executive terminates his employment for Good Reason as provided in
Subparagraph 6(e), he shall be entitled to the Severance Amount only if he
provides the Notice of Termination provided for in Subparagraph 6(a) within
sixty (60) days after the occurrence of the event or events which
constitute such Good Reason as specified in Subparagraph 6(e); and
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(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 on or after August 1, 2002, 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, in the event that Executive is still resident in the United
States at the time of termination, then, at any time within 12 months
following the Date of Termination, the Executive may notify the Company and
MPL that he desires to be relocated to Australia. If Executive provides
such notice to the Company and MPL, then the Company or MPL will either
directly pay or reimburse the Executive for the actual cost of packing and
moving his personal and household effects from the United States to
Australia. In addition, air travel and accommodations, and incidental
expenses while on route from the United States to Australia will be
reimbursed by the Company or MPL in accordance with Company policy. The
Executive acknowledges that the Company, MPL and its related corporations
and entities are not required to provide to Executive any form of
employment or engagement with MPL and its related bodies corporate if
Executive is relocated to Australia, unless the parties expressly agree
otherwise.
(b) 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
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(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 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;
if to the Company:
Moldflow Corporation
000 Xxx Xxxxxxxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
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 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. This Agreement shall expressly supercede
and replace any prior agreement and any other employment agreements,
arrangements and/or understandings between the Executive, the Company, MPL or
any other related corporation or entity, including that certain letter agreement
dated as of January 19, 2001. 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
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not set forth expressly in this Agreement. 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). Upon his return to Australia on the completion of his expatriate
assignment, Executive and the Company shall agree upon an appropriate amendment
to this Employment Agreement which will be governed by the laws of Victoria,
Australia and which shall contain provisions that are as similar to the
provisions set forth in this Agreement as possible.
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 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective on
the date and year first above written.
MOLDFLOW CORPORATION
By: /s/ A. Xxxxxx Xxxxxx
---------------------
Its: President and CEO
MOLDFLOW PTY. LTD.
By: /s/ A. Xxxxxx Xxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxx
----------------------- --------------------------
Its: Director Its: Director
---------------------- -------------------------
EXECUTIVE
/s/ Xxxxx Xxxxxxx
-----------------
Xxxxx Xxxxxxx
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