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Exhibit
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(the “Agreement”) is entered into as of this 14th day
of July, 2008 by and between Scott E. Landers (the
“Executive”) and Monotype Imaging Inc., a Delaware
corporation (the “Company”).
W I T N E S S E T
H:
WHEREAS, the Company desires
to employ the Executive, and the Executive desires to obtain
employment with the Company;
NOW, THEREFORE, in
consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
1. Effective Date;
Employment . Subject to the provisions of Section 5, the
Company agrees to employ Executive and Executive agrees to become
an employee and perform services for the Company, effective as of
July 1, 2008, upon the terms and conditions hereinafter set
forth.
2. Duties; Extent of
Service . During Executive’s employment under this
Agreement, Executive (a) shall serve as an employee of the
Company with the title and position of Chief Financial
Officer/Senior Vice President, reporting to the Board of Directors
(or the Chief Executive Officer, as appropriate) of the Company,
(b) shall have such executive responsibilities consistent with
the foregoing title and position as the Board of Directors (or the
Chief Executive Officer, as appropriate) of the Company shall from
time to time designate, provided that , in all cases
Executive shall be subject to the oversight and supervision of the
Board of Directors (or the Chief Executive Officer, as appropriate)
of the Company in the performance of his duties, (c) upon the
request of the Board of Directors (or the Chief Executive Officer,
as appropriate) of the Company, shall serve as an officer and/or
director of any of the Company’s subsidiaries, and
(d) shall render all services reasonably incident to the
foregoing. Executive hereby accepts such employment, agrees to
serve the Company in the capacities indicated, and agrees to use
Executive’s reasonable best efforts in, and shall devote
Executive’s full working time, attention, skill and energies
to, the advancement of the interests of the Company and its
subsidiaries and the performance of Executive’s duties and
responsibilities hereunder. The foregoing, however, shall not be
construed as preventing Executive from (i) engaging in
religious, charitable or other community or non-profit activities,
or (ii) managing Executive’s personal investments and
business interests, in each case in a manner that does not impair
Executive’s ability to fulfill Executive’s duties and
responsibilities under this Agreement (the activities described in
clauses (i) and (ii), the “Permitted Activities”).
The Executive shall serve as the principal financial officer of the
Company.
3. Salary and Bonus
.
(a) During Executive’s
employment under this Agreement, the Company shall pay Executive a
salary at the annual rate of $250,000 per annum (the “Base
Salary”). Such Base Salary shall be subject to withholding
under applicable law, and shall be payable in periodic installments
in accordance with the Company’s usual payroll practice for
executive officers of the Company as in effect from time to
time.
(b) Executive shall be
eligible to participate in any group bonus or other group
performance plan established by the Board of Directors from time to
time for senior management of the Company.
4. Benefits
.
(a) During Executive’s
employment under this Agreement, Executive shall be entitled to
participate in any and all medical, pension, profit sharing, dental
and life insurance plans and disability income plans, retirement
arrangements and other employment benefits, including option plans,
as in effect from time to time for similarly situated senior
management of the Company generally. Such participation shall be
subject to (i) the terms of the applicable plan documents
(including, as applicable, provisions granting discretion to the
Board of Directors of the Company or any administrative or other
committee provided for therein or contemplated thereby), and
(ii) generally applicable policies of the Company. Executive
shall be eligible to participate in all such plans and other
benefits as of the Effective Date.
(b) During Executive’s
employment under this Agreement, Executive shall be entitled to
earn paid vacation annually in accordance with the Company’s
practices for executive officers, as in effect from time to
time.
(c) The Company shall
promptly reimburse Executive for all reasonable business expenses
incurred by Executive during Executive’s employment hereunder
in accordance with the Company’s practices for senior
executive officers of the Company, as in effect from time to
time.
(d) Except to the extent
expressly provided in this Agreement, compliance with the
provisions of this Section 4 shall in no way create or be
deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the
continuation of any particular benefit or other plan or arrangement
maintained by them or their subsidiaries as of or prior to the
Effective Date or the creation and maintenance of any particular
benefit or other plan or arrangement at any time after the
Effective Date.
5. Termination and
Termination Benefits . Executive’s employment may
terminate without breach of this Agreement under the following
circumstances:
(a) Termination by the
Company for Cause . Executive’s employment may be
terminated for Cause without further liability on the part of the
Company or any affiliate thereof effective immediately upon a vote
of the Board of Directors of the Company (or determination by the
Chief Executive Officer, as appropriate) and written notice to
Executive. Only the following shall constitute “Cause”
for such termination:
(i) any act, whether or not
involving the Company or any of its affiliates or their respective
businesses, of fraud, gross misconduct or harassment that
materially and adversely affects the Company;
(ii) any act of dishonesty,
deceit or illegality, in any such case, materially and adversely
affecting the Company;
(iii) the commission of
Executive of, or indictment of Executive for (A) a felony, or
(B) any misdemeanor involving moral turpitude
(“indictment”, for these purposes, meaning an
indictment, or determination of probable cause in a probable cause
hearing or any other similar procedure pursuant to which an initial
determination of probable cause with respect to such offense is
made), if, in the case of an indictment, such indictment has
material adverse affect on the Company;
(iv) the commission, in the
reasonable judgment of the Board of Directors of the Company, of an
act involving a violation of procedures or policies of the Company
which are material to the Company;
(v) a material and sustained
failure of Executive to perform the duties and responsibilities
assigned or delegated under this Agreement, which such failure
continues for thirty (30) days after written notice has been
given to the Executive by the Board of Directors (or the Chief
Executive Officer, as appropriate);
(vi) gross negligence or
willful misconduct by Executive related to his job duties or
responsibilities; or
(vii) a breach by Executive
of any of Executive’s obligations under Section 6
below.
(b) Termination by
Executive Other than for Good Reason . Executive’s
employment may be terminated by Executive without further liability
on the part of Executive (other than with respect to those
provisions of this Agreement expressly surviving such termination)
by written notice to the Board of Directors at least sixty
(60) days prior to such termination; provided ,
however , the Company may waive the notice period and
accelerate the termination date without converting the Termination
by Executive into a Termination by the Company.
(c) Termination by
Executive for Good Reason . Subject to the payment of
Termination Benefits pursuant to Section 5(e) below,
Executive’s employment also may be terminated by Executive
for Good Reason (as defined below). For purposes of this Agreement,
“Good Reason” shall mean that the Executive has
complied with the “Good Reason Process” (hereinafter
defined) following the occurrence of any of the following events:
(i) a material diminution in the Executive’s
responsibilities, authority or duties; (ii) a material
diminution in the Executive’s Base Salary except for
across-the-board salary reductions based on the Company’s
financial performance similarly affecting all or substantially all
senior management employees of the Company; (iii) a material
change in the geographic location at which the Executive provides
services to the Company; or (iv) the material breach of this
Agreement by the Company. “Good Reason Process” shall
mean that (i) the Executive reasonably determines in good
faith that a “Good Reason” condition has occurred;
(ii) the Executive notifies the Company
in writing of the occurrence of the Good
Reason condition within 60 days of the occurrence of such
condition; (iii) the Executive cooperates in good faith with
the Company’s efforts, for a period not less than 30 days
following such notice (the “Cure Period”), to remedy
the condition; (iv) notwithstanding such efforts, the Good
Reason condition continues to exist; and (v) the Executive
terminates his employment within 60 days after the end of the Cure
Period. If the Company cures the Good Reason condition during the
Cure Period, Good Reason shall be deemed not to have
occurred.
(d) Termination by the
Company Without Cause . Subject to the payment of Termination
Benefits pursuant to Section 5(e), Executive’s
employment may be terminated without Cause by the Company by a vote
of the Board of Directors of the Company (or determination by the
Chief Executive Officer, as appropriate) upon written notice to
Executive. It is expressly agreed and understood that if
Executive’s employment is terminated by the Company without
Cause as provided in this Section 5(d), it shall not impair,
limit or otherwise affect Executive’s Continuing Obligations
(as defined below).
(e) Certain Termination
Benefits . Unless otherwise specifically provided in this
Agreement or otherwise required by law, all compensation and
benefits payable to Executive under this Agreement shall terminate
on the date of termination of Executive’s employment under
this Agreement. Notwithstanding the foregoing, in the event of
termination of Executive’s employment with the Company
pursuant to Section 5(c) or Section 5(d) above, the
Company shall provide to Executive the following termination
benefits (“Termination Benefits”):
(i) continuation of salary at
a rate equal to one-hundred (100%) of Executive’s Base
Salary as in effect on the date of termination for a period of
twelve months (payment shall be subject to withholding under
applicable law and shall be made in periodic installments in
accordance with the Company’s usual payroll practice for
executive officers of the Company as in effect from time to time)
with the first payment starting on the first payroll date that
occurs 30 days after the Termination Date;
(ii) provided Executive
elects and remains eligible for the continuation of group health
plan benefits pursuant to 29 U.S.C. § 1161 et seq .
(commonly known as “COBRA”), the Company will pay with
the cost of the regular premium for such benefits shared in the
same relative proportion by the Company and Executive as in effect
on the date of termination from the date of termination until the
earlier of: (1) twelve months after the date of termination,
or (2) the date Executive is no longer eligible for COBRA;
and
(iii) payment of the bonus
that the Executive would have been entitled to receive under the
bonus or other performance plan referred to in Section 3(b)
had his employment not been terminated, prorated based on the
number of days the Executive was employed by the Company during the
relevant bonus period. Such payment shall be made to the Executive
at the time bonuses under such plan are generally paid to other
participants but in no event later than March 15 of the
calendar year following the termination date.
The Company shall have the right to
terminate all of the Termination Benefits set forth in
Section 5(e)(i) and Section 5(e)(ii) in the event that
Executive fails to comply in any material respect with
Executive’s Continuing Obligations under this Agreement.
Notwithstanding the foregoing, nothing in this Section 5(e)
shall be construed to affect Executive’s right to receive
COBRA continuation entirely at Executive’s own cost to the
extent that Executive may continue to be entitled to COBRA
continuation after Executive’s right to cost sharing under
Section 5(e)(ii) ceases. The Company and Executive agree that
the Termination Benefits paid by the Company to Executive under
this Section 5(e) shall be in full satisfaction, compromise
and release of any claims arising exclusively out of any
termination of Executive’s employment pursuant to
Section 5(c) or Section 5(d), and that the payment of the
Termination Benefits shall be contingent upon Executive’s
delivery of a separation agreement in a form satisfactory to the
Company that shall include a general release of claims in favor of
the Company and related persons and entities (“Release
Agreement”), it being understood that no Termination Benefits
shall be provided unless and until such Release agreement becomes
fully effective.
(f) Disability . The
Company may terminate the Executive’s employment if he is
disabled and unable to perform the essential functions of the
Executive’s then existing position or positions under this
Agreement with or without reasonable accommodation for a period of
365 days (which need not be consecutive) in any 18-month period. If
any question shall arise as to whether during any period the
Executive is disabled so as to be unable to perform the essential
functions of the Executive’s then existing position or
positions with or without reasonable accommodation, the Executive
may, and at the request of the Company shall, submit to the Company
a certification in reasonable detail by a physician selected by the
Company to whom the Executive or the Executive’s guardian has
no reasonable objection as to whether the Executive is so disabled
or how long such disability is expected to continue, and such
certification shall for the purposes of this Agreement be
conclusive of the issue. The Executive shall cooperate with any
reasonable request of the physician in connection with such
certification. If such question shall arise and the Executive shall
fail to submit such certification, the Company’s
determination of such issue shall be binding on the Executive.
Nothing in this Section 5(f) shall be construed to waive the
Executive’s rights, if any, under existing law including,
without limitation, the Family and Medical Leave Act of 1993, 29
U.S.C. §2601 et seq . and the Americans with
Disabilities Act, 42 U.S.C. §12101 et seq.
(g) Death .
Executive’s employment and all obligations of the Company
hereunder shall terminate in the event of the death of the
Executive other than any obligation to pay earned but unpaid Base
Salary.
(h) Continuing
Obligations . Notwithstanding termination of this Agreement as
provided in this Section 5 or any other termination of
Executive’s employment with the Company, Executive’s
obligations under Section 6 hereof (collectively, the
“Continuing Obligations”) shall survive any termination
of Executive’s employment with the Company at any time and
for any reason.
6. Confidentiality;
Proprietary Rights; Non-Competition and Non-Solicitation
.
(a) In the course of
performing services on behalf of the Company (for purposes of this
Section 6 including all predecessors of the Company) and its
affiliates,
Executive has had and from time to time
will have access to
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