EXHIBIT 10.40
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the
23rd day of January 2004 between MOLDFLOW CORPORATION, a Delaware corporation
(the "Company"), and XXXXXXX XXXXXXXX ("Executive").
WHEREAS, the Company and the Executive are parties to a certain
Agreement and Plan of Merger dated as of January 23, 2004, by and among the
Company, MF Merger Sub I, Inc., American MSI Corporation ("AMSI"), Xxxxxxx X.
Xxxxxxxx and Xxxxxxx X. Xxxxxxxx as co-trustees of the Xxxxxxx and Xxxxxxx
Xxxxxxxx Family Trust, Xxxxxxx X. Xxxxxxxx and Executive (the "Purchase
Agreement");
WHEREAS, it is a condition to the Company's and Executive's obligations
under the Purchase Agreement that the Company and Executive enter into this
Agreement; and
WHEREAS, the Company desires to employ Executive and Executive desires
to be employed by the Company on the terms contained herein.
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 4 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 Executive Vice President, Manufacturing Solutions,
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. Executive's
initial annual base salary shall be $200,000. 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
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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 CEO, the Board or a Committee thereof shall determine from
time to time. 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 ratably
during the fiscal year, and Executive shall also be entitled to all
paid holidays given by the Company to its executives.
(c) ADDITIONAL BENEFITS. The Company will reimburse the
Executive for the cost of a supplemental policy of long-term disability
insurance for the Executive; provided that such policy can be purchased
under normal terms and conditions given the age of 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.
4. TERMINATION. Except for termination as specified in
Subparagraph 4(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 (a "Notice of Termination"). 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 Company's Board of Directors. For purposes
of this Agreement, "Cause" shall mean: (A) conduct by Executive
constituting a material act of willful misconduct in connection with
the
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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 Paragraph 7
of this Agreement or Paragraph 5.2 of the Purchase 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 4(c) or result from the death
or disability of the Executive under Subparagraphs 4(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.
(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 4(b) or under Subparagraph 4(c), the date on which Notice
of Termination is given; (C) if Executive's employment is terminated by
the Company under Subparagraph 4(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 4(e), thirty
(30) days after the date on which a Notice of Termination is given.
5. 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 the Date of
Termination, 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 Date of
Termination, 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
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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 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 Employee Benefit
Plan shall also be paid in accordance with the terms of such plan. 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 Base Salary and other
compensation and benefits provided hereunder. If Executive's employment
is terminated by the Company pursuant to Paragraph 4(b), then the
Company shall, through the Date of Termination, pay Executive his
accrued and unpaid Base Salary plus accrued vacation, at the rate in
effect at the time Notice of Termination is given, plus 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 Date of
Termination, 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. 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. Such payments, in the aggregate, shall fully discharge
the Company's obligations hereunder.
(c) If Executive's employment is terminated by Executive
as provided in Subparagraph 4(e) (including where Executive provides
notice to the Company under Paragraph 1 that he does not wish to extend
the Period of Employment), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary plus
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
held by Executive as of the Date of Termination must be
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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.
Notwithstanding the foregoing, if the Company determines that the
Executive is in breach of any of the provisions contained in Paragraph
7 of this Agreement or any of the provisions contained in Section 5.2
of the Purchase Agreement during the three (3) month period from the
Date of Termination, then all stock options held by the Executive shall
immediately terminate and be of no further force and effect.
(d) If Executive's employment is terminated by the
Company without Cause as provided in Subparagraph 4(d), then the
Company shall, through the Date of Termination, pay Executive his
accrued and unpaid Base Salary plus 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 to 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"). Notwithstanding the
foregoing, in the event that the Executive shall have been employed
with the Company (not to include the Executive's previous employment
with AMSI, prior to the date of this Agreement) for less than five (5)
fiscal years immediately prior to the year of termination, then in such
case the Termination Amount shall be calculated as the average annual
bonus or other variable cash compensation (including commissions) over
the number of full fiscal years that Executive was employed by the
Company prior to the year of termination. 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 accordance with the Company's standard
payroll practices, in equal installments over twelve (12) months
following the Date of Termination. Notwithstanding the foregoing, if
the Company determines that the Executive is in breach of any of the
provisions contained in Paragraph 7 of this Agreement or any of the
provisions contained in Section 5.2 of the Purchase Agreement during
the period over which the Termination Amount is being paid, then all
further payments of the Termination Amount shall immediately cease.
(ii) Upon the Date of Termination, 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
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Executive. All other stock-based grants and awards held by Executive
shall be canceled upon the Date of Termination in accordance with their
terms. Notwithstanding the foregoing, if the Company determines that
the Executive is in breach of any of the provisions contained in
Paragraph 7 of this Agreement or any of the provisions contained in
Section 5.2 of the Purchase Agreement during the twelve (12) month
period from the Date of Termination, then all stock options held by the
Executive shall immediately terminate and be of no further force and
effect.
(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 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. Notwithstanding the foregoing, if the Company determines
that the Executive is in breach of any of the provisions contained in
Paragraph 7 of this Agreement or any of the provisions contained in
Section 5.2 of the Purchase Agreement during the period over which
payments are being made pursuant to this Subparagraph 5(d)(iii), then
all further payments under this Subparagraph 5(d)(iii) shall
immediately cease.
(e) If Executive's employment is terminated by the
Company for Cause as provided in Subparagraph 4(c), then the Company
shall, through the Date of Termination, pay Executive his accrued and
unpaid Base Salary, plus 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 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 thirty (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 Date of
Termination in accordance with their terms. Notwithstanding the
foregoing, if the Company determines that the Executive is in breach of
any of the provisions contained in Paragraph 7 of this Agreement or any
of the provisions contained in Section 5.2 of the Purchase Agreement
during the thirty (30) day period from the Date of Termination, then
all stock options held by the Executive shall immediately terminate and
be of no further force and effect.
(f) Nothing contained in the foregoing Subparagraphs 5(a)
through 5(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.
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6. CHANGE IN CONTROL BENEFIT. Upon a Change in Control of the
Company, the following provisions shall apply and, in the event of the
termination of Executive's employment without Cause following such Change in
Control, shall apply in lieu of, and expressly supersede, the provisions of
Subparagraph 5(d).
(a) CHANGE IN CONTROL.
(i) In the event that within twelve (12) months
following a Change in Control, the Executive terminates his employment
for Good Reason (as defined below) 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) the Executive's
Base Salary in effect on the Date of Termination, 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 in 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 accordance with the Company's standard payroll practices, in equal
installments over the eighteen (18) months following the Date of
Termination. Notwithstanding the foregoing, if the Company determines
that the Executive is in breach of any of the provisions contained in
Paragraph 7 of this Agreement or any of the provisions contained in
Section 5.2 of the Purchase Agreement during the period over which the
Severance Amount is being paid, then all further payments of the
Severance Amount shall immediately cease. Furthermore, in the event
Executive terminates his employment for Good Reason, he shall be
entitled to the Severance Amount only if he provides the Notice of
Termination within sixty (60) days after the occurrence of the event or
events which constitute such Good Reason.
(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. Notwithstanding the
foregoing, if the Company determines that the Executive is in breach of
any of the provisions contained in Paragraph 7 of this Agreement or any
of the provisions contained in Section 5.2 of the Purchase Agreement,
then all stock options held by the Executive shall immediately
terminate and be of no further force and effect.
(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 and
Executive's spouse and dependents to continue to
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receive health and dental insurance coverage substantially similar to
the coverage they received prior to the Date of Termination.
Notwithstanding the foregoing, if the Company determines that the
Executive is in breach of any of the provisions contained in Paragraph
7 of this Agreement or any of the provisions contained in Section 5.2
of the Purchase Agreement during the period over which payments are
being made pursuant to this Subparagraph 6(a)(iii), then all further
payments under this Subparagraph 6(a)(iii) shall immediately cease.
(b) DEFINITIONS. For purposes of this Paragraph 6, 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 of Directors ("Voting
Securities"), or (B) the then outstanding shares of
the 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 of Directors (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 of Directors, 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 of Directors or
other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the
Board of Directors, 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 in 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) the outstanding shares of 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) the outstanding shares of Common Stock,
then a "Change in Control" shall be deemed to have occurred for purposes of the
foregoing clause (a).
"GOOD REASON" shall mean any of the following:
(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;
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(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; 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 9.
7. CONFIDENTIALITY, ASSIGNMENT OF INVENTIONS, ETC.
(a) Executive acknowledges that, in order for him to
perform his duties properly, the Company will from time to time entrust
Executive with certain trade secrets and confidential information in
relation to the Company and the Company's activities (the "Confidential
Information"). Such Confidential Information may be in tangible or
intangible form. The Confidential Information includes, but is not
limited to, source code; object code; operational and functional
features and limitations of the Company's software; the Company's
research and development plans and activities; the Company's
manufacturing and production plans and activities; the prices, terms
and conditions of the Company's contracts with its customers; the
identities, needs and requirements of the Company's customers; the
Company's pricing policies and price lists; the Company's business
plans and strategies; the Company's marketing plans and strategies; and
personnel information and financial information regarding the Company.
Executive further acknowledges that the development or acquisition of
such Confidential Information is the result of great effort and expense
by the Company and the Confidential Information is critical to the
survival and success of the Company and that the unauthorized
disclosure or use of the Confidential Information would cause the
Company irreparable harm.
(b) Executive agrees that during the Period of Employment
with the Company and thereafter, he will not disclose the Confidential
Information or use it in any way, except on behalf of the Company,
whether or not such Confidential Information is produced by Executive's
own efforts. This undertaking will not apply to any Confidential
Information which is (i) publicly known through no unauthorized act of
Executive, (ii) approved by the Company for disclosure, or (iii) the
subject matter of a lawful request or subpoena by and within the
authority of a court or governmental agency or other body. Executive
further agrees, upon termination of his employment for any reason, to
deliver to Company on or prior to his last day of employment, all
Confidential Information (in whatever form, including notes, drawings,
files, computer records or other means, and wherever located, including
Executive's office, home, personal computer or internet web
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site), whether or not such Confidential Information was produced by
Executive's own efforts, and to refrain from making, retaining,
destroying or distributing copies thereof.
(c) Any invention, discovery, development, improvement,
procedure, writing, work or design (collectively referred to herein as
"invention or discovery") that relates to any aspect of the business of
the Company, or results from any work performed on the premises of the
Company or by use of the facilities, equipment or services of other
employees of the Company, whether patentable, copyrightable or not and
that is made or discovered by Executive individually or jointly with
any other person or persons during the Period of Employment, whether on
Company business hours or not, shall be promptly disclosed to the
Company. All such inventions and discoveries shall be the sole property
of the Company. Any such invention or discovery shall be considered
work made for hire. Executive hereby assigns to the Company all right,
title and interest to any such invention or discovery.
(d) In the event that any such invention or discovery
shall be determined by the Company in its sole discretion to be of a
patentable nature or to contain material subject to copyright or
trademark protection, Executive, whether or not then employed by the
Company, will assist the Company or its nominee to obtain, maintain and
enforce copyrights, trademarks or patents in the United States of
America and in any and all countries so designated, all at the expense
of the Company. Executive will supply evidence, give testimony, sign
all papers and do all other legal and proper things which Executive or
its nominees may deem necessary for obtaining, maintaining and
enforcing its copyrights, trademarks and patents and for vesting in
Executive or its nominee full title thereto. Executive hereby
irrevocably appoints the Company to be his attorney in fact and, in his
name and on his behalf, to execute all such instruments and take all
other actions and generally to use his name for the purpose of giving
to the Company the full benefit of the provisions of this Subparagraph.
(e) The assignment of any invention or discovery under
this Paragraph 7 shall not extend to inventions or discoveries, the
assignment of which is prohibited by California Labor Code Paragraph
2870, which provides as follows:
(i) Any provision in an employment agreement
which provides that an employee shall assign, or offer to assign, any
of his or her rights in an invention to his or her employer shall not
apply to an invention that the employee developed entirely on his or
her own time without using the employer's equipment, supplies,
facilities, or trade secret information except for those inventions
that either:
(A) Relate at the time of conception or
reduction to practice of the invention to the employer's
business, or actual or demonstrably anticipated research or
development of the employer; or
(B) Result from any work performed by
the employee for his employer.
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(ii) To the extent a provision in an employment
agreement purports to require an employee to assign an invention
otherwise excluded from being required to be assigned under subdivision
(i), the provision is against the public policy of this state and is
unenforceable.
(f) Executive agrees, upon request by the Company, or
termination of his employment for any reason, promptly to deliver to
the Company all files, computer files or databases, books, documents,
computer disks or tapes, and other property prepared by or on behalf of
the Company or purchased with Company funds, and to refrain from
making, retaining, destroying or distributing copies thereof.
(g) Executive represents and warrants to the Company that
the execution of this Agreement by him, his performance of his
obligations hereunder and his employment by the Company will not, with
or without the giving of notice or the passage of time, conflict with,
result in the breach or termination of, or constitute default under,
any agreement to which Executive is party or by which he is or may be
bound.
(h) The provisions of this Paragraph 7 shall survive the
termination of the Executive's employment with the Company regardless
of the manner of such termination, and shall be binding on Executive
and his heirs, executors and administrators.
(i) Anything herein to the contrary notwithstanding, any
confidential/proprietary/trade secrets information and inventions
agreement(s) between Executive AMSI, or any predecessor thereto, will
remain in effect as it pertains to subject matters existing prior to
the date of Purchase Agreement. Further, nothing in this Agreement
shall diminish or modify any obligations Executive owes to the Company
as set forth in Section 5.2 of the Purchase Agreement.
(j) References in this Paragraph 7 to the "Company" shall
refer to Moldflow Corporation, a Delaware corporation, and all current
and future United States and foreign subsidiaries, divisions and
affiliates
8. 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 mailed by United States
certified mail, return receipt requested, postage prepaid, 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 Xxxxxx Xxxx Xxxx
00
Xxxxxxx, 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.
9. 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 in a
transaction constituting a Change in Control to 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 following such Change in Control.
10. 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 of Directors. 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. The validity,
interpretation, construction, and performance of this Agreement shall be
governed and construed by and in accordance with the substantive law of
California, excluding, however such laws pertaining to conflict of laws.
11. 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.
12. 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.
13. 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
13
injunction in any court of competent jurisdiction to prevent any continuation of
any violation of Paragraph 7 of this Agreement.
14. 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 14, including,
but not limited to, reasonable attorneys' fees and costs.
(Signatures on following page)
14
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
-------------------------
A. Xxxxxx Xxxxxx
President and Chief
Executive Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
-----------------------------
Xxxxxxx Xxxxxxxx
[SIGNATURE PAGE TO EXECUTIVE EMPLOYMENT AGREEMENT]
