Exhibit 10.38
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made as of the
16th day of August 2002 between MOLDFLOW CORPORATION, a Delaware corporation
(the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("Executive").
WHEREAS, the Company and the Executive are party to an Executive
Employment Agreement dated as of February 1, 2000 ("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 herein which shall supercede all of the terms and conditions of the
Prior 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 Financial Officer and Executive Vice President of Finance and
Administration 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 her 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 $195,000. 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 payable in a manner consistent with the
general payroll policy of the Company. In addition to Base Salary, Executive
shall be eligible to participate in such incentive compensation plans and
Employee Benefit Plans as the Board or a Committee thereof shall determine from
time to time for senior executives of the Company. As used herein, the term
"Employee Benefit Plans" includes, without limitation, each pension and
retirement plan; supplemental pension, retirement and deferred compensation
plan; savings and profit-sharing plan; stock ownership plan; stock purchase
plan; stock option plan; life insurance plan; medical insurance plan; disability
plan; and health and accident plan or arrangement established and maintained by
the Company.
(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. Executive shall be entitled to additional vacation based on
any policy of the Company that provides for additional vacation based on years
of service or other criteria.
(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.
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(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 her 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 her employment with the
Company (and, if applicable, its predecessors), she 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 she 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 her 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 she 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, she 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 her during the course of her
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 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.
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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 she 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 her
death.
(b) DISABILITY. If, as a result of Executive's incapacity due to
physical or mental illness, Executive shall have been absent from her 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 her 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 she
were retained in her position with the Company; (C) continued, willful and
deliberate non-performance by Executive of her 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.
(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 her employment hereunder for any reason,
including but not limited to Good Reason. If Executive provides notice to the
Company under Paragraph 1 that she 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 her 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; 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 her death, the date of her death; (B) if
Executive's employment is terminated under Subparagraph 6(b)
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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 her 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 her death, plus her
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, (i) 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 and (ii) all
repurchase rights and other restrictions on the shares of Restricted Stock held
by the Executive which would otherwise lapse over the next twelve (12) months
shall immediately lapse. 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 or arrangement. Such payments, in the aggregate, shall fully discharge the
Company's obligations hereunder.
(b) During any period that Executive fails to perform her duties
hereunder as a result of incapacity due to physical or mental illness, Executive
shall continue to receive her accrued and unpaid Base Salary, plus 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 her employment in accordance with Subparagraph 6(e),
whichever first occurs. Upon the Date of Termination, (i) 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 and (ii) all repurchase rights and
other restrictions on the shares of Restricted Stock held by the Executive which
would otherwise lapse over the next twelve (12) months shall immediately lapse.
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 her 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 exercised by Executive within three (3) months following the
Date of Termination or by the end of the
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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 her 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 her accrued and unpaid Base Salary plus
accrued vacation, at the rate in effect at the time Notice of Termination is
given and her 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) 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"). 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 12 months following the Date of
Termination. Notwithstanding the foregoing, if the Executive breaches
any of the provisions contained in Paragraphs 4 and 5 of this 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, (i) 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 and
(ii) all repurchase rights and other restrictions on the shares of
Restricted Stock held by the Executive which would otherwise lapse over
the next twelve (12) months shall immediately lapse. 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 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.
(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 her 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 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.
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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 her 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) the 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 accordance with the
Company's standard payroll practices, in equal installments over the 18
months following the Date of Termination. 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
her employment for Good Reason as provided in Subparagraph 6(e), she
shall be entitled to the Severance Amount only if she 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 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
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(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 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 mailed by United States certified mail, return
receipt requested, postage prepaid, addressed as follows:
if to the Executive:
At her home address as shown
in the Company's personnel records;
if to the Company:
Moldflow Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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
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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. 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).
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 her Base Salary) for requested litigation
and regulatory cooperation that occurs after her termination of employment, and
reimburse Executive for all costs and expenses incurred in connection with her
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. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: President and Chief Executive Officer
EXECUTIVE
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