Exhibit 10.39
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the
20th day of March, 2000 between MOLDFLOW CORPORATION, a Delaware corporation
(referred to herein as including all of its subsidiaries, including MPL, the
"Company"), and A. XXXXXX XXXXXX ("Executive").
WHEREAS, the Company, through its subsidiary Moldflow Pty. Ltd, an
Australian corporation ( "MPL") 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 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 Vice President of Research and Development 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 185,082 Australian dollars. 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 and MPL. 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 and MPL and applicable to employees
resident in Australia. Nothing in this Agreement shall serve to modify or
diminish any accumulated benefits to which Executive shall be entitled.
(b) VACATIONS. Executive shall be entitled to twenty (20) paid vacation
days in each calendar year, which shall be accrued on a pro rata basis during
the calendar year, and Executive shall also be entitled to 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 purchase and / or maintain 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.
4. UNAUTHORIZED DISCLOSURE.
Executive acknowledges that in the course of his employment with the
Company (and, if applicable, its predecessors), he has and will become
acquainted with the Company's business affairs, information, trade secrets, and
other matters which are of a proprietary or confidential nature, including but
not limited to the Company's and its affiliates' and predecessors' operations,
business opportunities, price and cost information, finance, customer
information, product development information, business plans, various sales
techniques, manuals, letters, notebooks, procedures, reports, products,
processes, services, and other confidential information and knowledge
(collectively the "Confidential Information") concerning the Company's and its
affiliates' and predecessors' business. Executive understands and acknowledges
that such Confidential Information is confidential, and he agrees not to
disclose such Confidential Information to anyone outside the Company except to
the extent that (i) Executive deems such disclosure or use reasonably necessary
or appropriate in connection with performing his duties on behalf of the
Company; (ii) Executive is required by order of a court of competent
jurisdiction (by subpoena or similar process) to disclose or discuss any
Confidential Information, provided that in such case, Executive shall promptly
inform the Company of such event, shall cooperate with the Company in attempting
to obtain a protective order or to otherwise restrict such disclosure, and shall
only disclose Confidential Information to the minimum extent necessary to comply
with any such court order; or (iii) such Confidential Information becomes
generally known to and available for use in the Company's industry, other than
as a result of any action or inaction by Executive. Executive further agrees
that he will not during employment and/or at any time thereafter use such
Confidential Information in competing, directly or indirectly, with the Company.
At such time as Executive shall cease to be employed by the Company, he will
immediately turn over to the Company all Confidential Information, including
papers, documents, writings, electronically stored information, other property,
and all copies of them provided to or created by him during the course of his
employment with the Company. The foregoing provisions shall be binding upon
Executive's heirs, successors, and legal representatives and shall survive the
termination of this Agreement for any reason.
5. COVENANT NOT TO COMPETE
In consideration of the employment of the Executive and other valuable
consideration whether directly or indirectly received by Executive from
Moldflow, and for the sole purpose of reasonably protecting the goodwill and
business of Moldflow, Executive agrees with and undertakes to Moldflow that,
without the prior written consent of Moldflow, Executive will not, for a period
from the commencement of this Agreement until:
(a) twelve months after the date of termination of his employment
for any reason;
(b) six months after the date of termination of his employment for
any reason and within:
(i) the world, unless that area is in the circumstances found to
be too large to be enforceable at law or in equity, in which
case;
(ii) the United States of America; the United Kingdom; France;
Germany; the Netherlands, Japan; Italy; Korea; Taiwan;
Australia; and New Zealand; unless that area is in the
circumstances found to be too large to be enforceable at law
or in equity, in which case;
(iii) Australia; unless that area is in the circumstances found to
be too large to be enforceable at law or in equity, in which
case;
(iv) the State of Victoria; unless that area is in the
circumstances found to be too large to be enforceable at law
or in equity, in which case;
(v) the State of New South Wales; unless that area is in the
circumstances found to be too large to be enforceable at law
or in equity, in which case;
(vi) a hundred mile radius of each office from time to time of
Moldflow.
do any one or more of the following:
(A) carry on or be engaged in or otherwise interested in or
concerned with, whether solely or as a partner, director,
officer, employee, associate, agent, shareholder, unit holder
or
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corporation, or in any other capacity, either directly or
indirectly, any person, enterprise, corporation, firm, trust,
joint venture, syndicate or business engaged in the
manufacture, sale or provision of products or services which
are the same as or substantially similar to or competitive
with the products or services manufactured, sold or provided
by Moldflow;
(B) on his own account or for any person, enterprise, firm, trust,
joint venture, syndicate or business entice away from Moldflow
any employee or agent of Moldflow;
(C) on his own account for any person, enterprise, firm, trust,
joint venture, syndicate or business entice away from Moldflow
any customer of Moldflow;
(D) personally or by his employees or agents or by circulars,
letters or advertisements whether on his own account for any
other person, enterprise, firm, trust, joint venture,
syndicate or business interfere with the business or divulge
to any person, any information concerning the business of
Moldflow or any of its respective dealings, transactions or
affairs.
The Executive acknowledges that each of the prohibitions and restrictions
contained in the provisions of Section 5 (a) will be read and construed and will
have effect as a separate severable and independent prohibition or restriction
and will be enforceable accordingly; (b) is reasonable as to period, territorial
limitation and subject matter; and (c) is no more than that which is reasonably
and necessarily required by Moldflow for the maintenance and protection of its
business and goodwill. It is the intention of the parties that all combinations
of the prohibitions and restrictions contained in the provisions of Section 5
will apply and be enforceable and that only those which a court, in exercising
its discretion, may hold to be an unreasonable restraint of trade will be
severed.
The foregoing shall not prohibit Executive from owning up to 1% of the
outstanding stock of a publicly held company engaged in activities competitive
with that of the Company.
6. TERMINATION. Except for termination as specified in Subparagraph 6(a),
any termination of Executive's employment by the Company or any such termination
by Executive shall be communicated by written notice of termination to the other
party hereto. Upon termination from the Company for any reason, Executive agrees
to deliver his resignation as a director of the Company or any of its
subsidiaries or affiliates upon the request of the Chairman of the Board of
Directors. Executive's employment hereunder may be terminated without any breach
of this Agreement under the following circumstances:
(a) DEATH. Executive's employment hereunder shall terminate upon
his death.
(b) DISABILITY. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from his duties
hereunder on a full-time basis for one hundred eighty (180) calendar days in the
aggregate in any twelve (12) month period, the Company may terminate Executive's
employment hereunder.
(c) TERMINATION BY COMPANY FOR CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder for Cause
if such termination is approved by not less than a majority of the Board. For
purposes of this Agreement, "Cause" shall mean: (A) conduct by Executive
constituting a material act of willful misconduct in connection with the
performance of his duties; (B) criminal or civil conviction of Executive,
conduct by Executive that would reasonably be expected to result in material
injury to the reputation of the Company if he were retained in his position with
the Company; (C) continued, non-performance by Executive of his duties hereunder
(other than by reason of Executive's physical or mental illness, incapacity or
disability) which has continued for more than thirty (30) days following written
notice of such non-
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performance and the reasons for the dissatisfaction from the Board; or (D) a
breach by Executive of any of the provisions contained in Paragraphs 4 and 5 of
this Agreement.
(d) TERMINATION WITHOUT CAUSE. At any time during the Period of
Employment, the Company may terminate Executive's employment hereunder without
Cause if such termination is approved by a majority of the Company's Board of
Directors. Any termination by the Company of Executive's employment under this
Agreement which does not constitute a termination for Cause under Subparagraph
6(c) or result from the death or disability of the Executive under Subparagraph
6(a) or (b) shall be deemed a termination without Cause. If the Company provides
notice to Executive under Paragraph 1 that it does not wish to extend the Period
of Employment, such action shall be deemed a termination without Cause.
(e) TERMINATION BY EXECUTIVE. At any time during the Period of
Employment, Executive may terminate his employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that he does not wish to extend the Period of
Employment, such action shall be deemed a voluntary termination by Executive and
one without Good Reason. For purposes of this Agreement, "Good Reason" shall
mean: (A) a substantial diminution or other substantive adverse change, not
consented to by Executive, in the nature or scope of Executive's
responsibilities, authorities, powers, functions or duties; (B) 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 to the date of his death, plus his accrued and unpaid
incentive compensation (including any bonus payment that is earned but
unauthorized), if any, under Subparagraph 3(a). Upon the death of Executive all
stock options which would otherwise vest over the next twelve (12) months shall
immediately vest in Executive's estate or other legal representatives and become
exercisable, and Executive's estate or other legal representatives shall have
twelve (12) months from the Date of Termination or the remaining option term, if
earlier, to exercise all such stock options granted to Executive. 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
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Company shall pay such health and dental insurance premiums as may be necessary
to allow Executive's spouse and dependents to receive health and dental
insurance coverage, if any, substantially similar to coverage they received from
the Company or MPL immediately prior to the Date of Termination. In addition to
the foregoing, any payments to which Executive's spouse, beneficiaries, or
estate may be entitled under any employee benefit plan shall also be paid in
accordance with the terms of such plan or arrangement. Such payments, in the
aggregate, shall fully discharge the Company's obligations hereunder.
(b) During any period that Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive his accrued and unpaid Base Salary and accrued and
unpaid incentive compensation (including any bonus payment that is earned but
unauthorized), if any, under Subparagraph 3(a), 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 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 from the Company prior to the Date of Termination, if any.
(c) If Executive's employment is terminated by Executive other than for
Good Reason as provided in Subparagraph 6(e), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary at the
rate in effect at the time Notice of Termination is given. Thereafter, the
Company shall have no further obligations to Executive except as otherwise
expressly provided under this Agreement. In addition, all vested but unexercised
stock options held by Executive as of the Date of Termination must be exercised
by Executive within three (3) months following the Date of Termination or by the
end of the option term, if earlier. All other stock-based grants and awards held
by Executive shall vest or be canceled upon the Date of Termination in
accordance with their terms.
(d) If Executive terminates his employment for Good Reason as provided
in Subparagraph 6(e) or if Executive's employment is terminated by the Company
without Cause as provided in Subparagraph 6(d), then the Company shall, through
the Date of Termination, pay Executive his accrued and unpaid Base Salary at the
rate in effect at the time Notice of Termination is given and his accrued and
unpaid incentive compensation (including any bonus payment that is earned but
unauthorized), if any, under Subparagraph 3(a). 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 Executive's Base Salary in effect on the Date of
Termination (the "Severance Amount"). The Severance Amount shall be
paid out in accordance with the Company's standard payroll practices.
Notwithstanding the foregoing, (i) if the Executive breaches any of the
provisions contained in Paragraphs 4 and 5 of this Agreement or (ii) if
Executive obtains a "Comparable Position", as defined herein, during
the period over which the Severance Amount is being paid, then all
further payments of the Severance Amount shall immediately cease. For
purposes of this Agreement "Comparable Position" means a full time
executive management position with a similar scope of duties and
responsibilities as that described in Paragraph 2 hereof and an
equivalent or better compensation package as that described in
Paragraph 3 hereof. The Executive shall have no obligation to seek or
accept a Comparable Position during the period over which the Severance
Amount is being paid.
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(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 Executive. All
other stock-based grants and awards held by Executive shall be canceled
upon the Termination Date in accordance with their terms.
(iii) In addition to any other benefits to which Executive may
be entitled in accordance with the Company's then existing severance
policies, the Company shall, for a period of one (1) year commencing on
the Date of Termination, pay such health and dental insurance premiums
as may be necessary to allow Executive and Executive's spouse and
dependents to continue to receive health and dental insurance coverage
substantially similar to coverage they received from the Company prior
to the Date of Termination, if any.
(e) If Executive's employment is terminated by the Company for Cause as
provided in Subparagraph 6(c), then the Company shall, through the Date of
Termination, pay Executive his accrued and unpaid Base Salary at the rate in
effect at the time Notice of Termination is given. Thereafter, the Company shall
have no further obligations to Executive except as otherwise expressly provided
under this Agreement. In addition, all stock options held by Executive as of the
Date of Termination shall cease to vest as of the Date of Termination and
Executive shall have 30 days from the Date of Termination or the remaining
option term, if earlier, to exercise all such vested stock options. All other
stock-based grants and awards held by Executive shall be canceled upon the
Termination Date in accordance with their terms.
(f) Nothing contained in the foregoing Subparagraphs 7(a) through 7(e)
shall be construed so as to affect Executive's rights or the Company's
obligations relating to agreements or benefits that are unrelated to termination
of employment.
8. CHANGE IN CONTROL BENEFIT. Upon a Change of Control of the Company the
following provisions shall apply in lieu of, and expressly supersede, the
provisions of Subparagraph 7(d).
(a) CHANGE IN CONTROL.
(i) In the event that 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
one (1) times the sum of Executive's Base Salary (the "Severance
Amount"). Notwithstanding the foregoing, if Executive obtains a
"Comparable Position", as defined herein, during the period over which
the Severance Amount is being paid, then all further payments of the
Severance Amount shall immediately cease; provided, however, that in
any event the Executive shall be entitled to a minimum of six (6)
months of severance. The Severance Amount shall be paid out in
accordance with the Company's standard payroll practices. For purposes
of this Agreement, "Base Salary" shall mean the annual Base Salary in
effect on the Date of Termination. Notwithstanding the foregoing, if
the Executive breaches any of the provisions contained in Paragraphs 4
and 5 of this Agreement then all further payments of the Severance
Amount shall immediately cease. Furthermore, 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
(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
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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.
(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
(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
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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
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to: Corporate 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. No agreements or representations, oral or
otherwise, express or implied, unless specifically referred to herein, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement. This Agreement shall expressly
supercede and replace that certain Service Agreement between MPL and the
Executive dated as of July 1, 1994; provided, however that the deferred
compensation payable to the Executive pursuant to such Agreement shall be paid
in accordance with the terms of the Letter Amendment, dated July 1, 1999,
between MPL and the Executive. This agreement is governed by the laws of the
State of Victoria, Australia. Each party irrevocably and unconditionally submits
to the non-exclusive jurisdiction of the courts of the State of Victoria and
courts entitled to hear appeals from those courts.
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.
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14. DUTY OF FIDELITY. Nothing in this agreement will be construed to limit
Executive's fiduciary duties or duty of fidelity to the Company.
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.
16. VALUATIONS. The Company shall pay for any valuation of the Company
necessary to determine the tax liability of the Executive in respect of the
stock options held by the Executive, in the event that the Company's stock is
not listed on any nationally recognized stock exchange or NASDAQ and thus must
be valued by way of a valuation of the Company in order to determine the tax
liability of the Executive. The valuation performed by the Company shall be
binding on the Executive and the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date and year first above written.
MOLDFLOW CORPORATION
By: /s/ Marc X. X. Xxxxxx
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Its: President and Chief Executive Officer
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EXECUTIVE
/s/ A. Xxxxxx Xxxxxx
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A. Xxxxxx Xxxxxx
