Exhibit 10.2
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT
(the “Agreement”) is made and entered into as of the
Effective Date, as defined below, by and between Accelrys, Inc.
, a Delaware corporation (hereinafter, the
“Company”), and Scipio “Max” Carnecchia, an
individual (hereinafter, “Executive”).
RECITALS
WHEREAS, Executive is commencing employment with the
Company on the terms set forth herein and in the offer letter dated
June 15, 2009 from Ken Coleman (“Offer
Letter”).
NOW, THEREFORE,
in consideration of their mutual
promises and intending to be legally bound, the parties agree as
follows:
1. EMPLOYMENT
.
(a) Title and Location
. The Company shall
employ Executive as its Chief Executive Officer upon the terms and
conditions set forth in this Agreement, and Executive hereby
accepts such employment. Executive will be based in San Diego,
California.
(b) Duties and
Responsibilities . Executive’s duties, powers and
responsibilities in such capacity shall be those which are
customary for such position, as may be determined from time to time
by the Company’s Board of Directors (“Board”).
Executive agrees to perform and discharge such duties well and
faithfully and to be subject to the supervision and direction of
Executive’s Board.
(c) No Conflicts
. Executive’s
position under this Agreement is a full-time position. Executive
agrees to devote Executive’s full business time, effort,
attention and energies to this position. Executive will not render
any professional services or engage in any activity that might be
competitive with, adverse to the best interest of, or create the
appearance of a conflict of interest with, the Company. Executive
agrees to abide by the policies, rules and regulations of the
Company as they may be amended from time to time.
(d) No Other Agreement
. Executive represents
and warrants the Executive is not bound by any employment,
consulting, noncompetition, confidentiality, finders, marketing or
other agreement or arrangement that would, or might reasonably be
expected to, prohibit or restrict Executive in any manner from
performing Executive’s duties and obligations
hereunder.
2. TERM .
The term of this Agreement shall
commence on the day on which Executive commences employment with
the Company (the “Effective Date”) and shall continue
thereafter until the effective date of termination set forth in
Section 13, below (“Term”).
3. COMPENSATION
. As compensation for
Executive’s services under this Agreement:
(a) Base Salary
. The Company will pay
Executive an initial annual base salary as set forth in the Offer
Letter (“Base Salary”), to be paid semi-monthly in
equal installments, less normally applicable payroll deductions.
Executive’s Base Salary will be subject to annual review and
adjustment by the Board or a duly appointed committee thereof, in
either case in its sole discretion.
(b) Incentive Bonus
. Executive shall be
eligible to participate in the Company’s management incentive
plan, as may be implemented and modified by the Company at its sole
discretion. The Company and Executive agree that Executive’s
initial bonus target percentage will be as set forth in the Offer
Letter. Such amounts, payable to Executive under this plan or any
other bonus program, shall be referred to herein as the
“Incentive Bonus.” The Incentive Bonus for any year
will be paid after the conclusion of the applicable fiscal year,
based upon the Board of Directors’ determination as to the
amount of such bonus earned pursuant to the terms of the management
incentive plan, provided Executive is employed by the Company or
its successor on that date.
(c) Vacation and Other
Benefits . Executive
shall be entitled to the benefit of paid vacation, holidays, group
medical, accident and long-term disability insurance and other
fringe benefits and tax qualified retirement plans as the Company
shall make available from time to time to its other similarly
situated senior executives. The Company may change or amend its
benefits as it deems appropriate from time to time.
4. TERMINATION AND EFFECT OF
TERMINATION . Executive’s employment hereunder is AT
WILL and may be terminated at any time by the Company for any
reason. In the event of termination of Executive’s
employment, the Company shall have no liability to Executive for
compensation or benefits, except as specified in this
Section 4 or as required by the Company’s benefits
policy.
(a) Termination by the Company
for Cause . Executive’s employment may be terminated
by the Company for Cause at any time upon delivery of written
notice to Executive. Upon such a termination, the Company shall
have no obligation to Executive other than the payment of all
accrued, but unpaid, Base Salary and any unpaid expenses or expense
reimbursements prior to the effective date of such termination. For
purposes of this Agreement, “Cause” means the
occurrence of any one or more of the following events or
conditions:
(i) any material failure on the part
of Executive (other than by reason of disability as provided in
Section 4(e) below) to faithfully and professionally carry out
Executive’s duties or to comply with any other material
provision of this Agreement, which failure continues for ten
(10) days after written notice detailing such failure is
delivered by the Company; provided, that the Company shall not be
required to provide such notice in the event that such failure
(A) is not susceptible to remedy or (B) relates to the
same type of acts or omissions as to which notice has been given on
a prior occasion;
(ii) Executive’s dishonesty
(which shall include without limitation any misuse or
misappropriation of the Company’s assets), or other willful
misconduct, if such dishonesty or other willful misconduct is
intended to or likely to materially injure the business of the
Company;
(iii) Executive’s conviction
of any felony or of any other crime involving moral turpitude,
whether or not relating to Executive’s employment;
(iv) Executive’s insobriety or
use of drugs, chemicals or controlled substances either (A) in
the course of performing Executive’s duties and
responsibilities under this Agreement, or (B) otherwise
affecting the ability of Executive to perform the same;
(v) Executive’s failure to
comply with a lawful written direction of the Company or the Board
of Directors; or
(vi) Any wanton or willful
dereliction of duties by Executive.
The existence of any of the
foregoing events or conditions shall be determined by the Company
in the exercise of its reasonable judgment.
(b) Involuntary Termination by
the Company without Cause or Resignation by Executive with Good
Reason . The Company
may involuntarily terminate Executive’s employment under this
Agreement at any time during the Term without Cause upon delivery
of written notice to Executive, and Executive may resign at any
time during the Term with Good Reason (as defined in
Section 4(c), below). Except as provided by Section 4(g)
hereof concerning termination in connection with a Change of
Control
(as defined in such Section 4(g)), if,
during the Term, Executive’s employment is terminated
involuntarily by the Company without Cause pursuant to this
Section 4(b) or Executive resigns for Good Reason pursuant to
Section 4(c) during the Term, the Company shall:
(i) pay Executive all compensation
and benefits accrued, but unpaid, up to the effective date of
termination; and
(ii) provided that, and for so long
as, Executive complies with Executive’s obligations set forth
in Sections 6 and 7, below, continue to pay Executive each month
(in accordance with the Company’s regular payroll practices)
an amount equal to one twelfth (1/12) Executive’s annual
Base Salary in effect as of the effective date of termination, for
a period of twelve (12) months after the effective date of
termination;
(iii) provided that, and for so long
as, Executive complies with his/her obligations set forth in
Sections 6 and 7, below, pay Executive, each month for a period of
twelve (12) months, in accordance with the Company’s
payroll practices, one twelfth (1/12) of an amount obtained by
multiplying Executive’s target bonus percentage in effect as
of the effective date of termination (expressed as a decimal) times
Executive’s annual Base Salary in effect as of such date of
termination.
(iv) pay Executive a pro-rata lump
sum amount, prorated for the number of full months during the
applicable fiscal year during which Executive had been employed by
the Company prior to his/her termination, of the bonus that would
have been payable to Executive had she/he remained employed
throughout the year. Such bonus will be based upon the percentage
achievement against objectives as determined by the Company’s
board of directors at the conclusion of the applicable fiscal year
to have been earned pursuant to the terms of the Company’s
management incentive plan; and
(v) Reimburse or otherwise pay
Executive’s Consolidated Omnibus Budget Reconciliation Act of
1985 (COBRA) payments for medical and dental insurance under the
Company’s applicable plans for the lesser of (x) twelve
months from the effective date of termination or (y) the date
upon which Executive becomes eligible for medical coverage from a
new employer. Executive shall notify the Company no later than 15
days after becoming eligible for such coverage.
(c) Termination by Executive
for Good Reason . Executive may terminate his/her employment under
this Agreement during the Term for Good Reason upon the provision
of advance written notice to the Company no later than thirty
(30) days after the initial occurrence of the events or
conditions upon which Executive is basing such termination and
specifying in reasonable detail the events or conditions upon which
Executive is basing such termination. The Company will be given the
opportunity, but shall have no obligation, to “cure”
such events or conditions within thirty (30) days after the
provision by Executive of such notice. Subject to the provisions of
Section 4(g) hereof (concerning termination in connection with
a Change of Control), if the Company elects in a written notice to
Executive not to cure such events or conditions or otherwise fails
to so cure such events or conditions within such thirty
(30) day period, Executive may terminate Executive’s
employment with the Company for Good Reason effective at the end of
such 30 day notice period.
For purposes of this Agreement,
“Good Reason” means any one or more of the following
events or conditions:
(i) the Company’s breach of
any of the material terms of this Agreement;
(ii) the Company’s relocating
its office at which Executive is principally employed on the
Effective Date of this Agreement, to a location which is more than
fifty (50) miles from both Executive’s residence and the
offices of the Company at which Executive is principally employed
on the date of execution of this Agreement, and requiring Executive
to commute to such location without Executive’s written
consent;
(iii) a material diminution in
Executive’s title, duties or responsibilities or conditions
of his/her employment from those in effect on the date of execution
of this Agreement; or
(iv) a reduction of more than 10% in
Executive’s annual Base Salary then-in-effect without
Executive’s consent (other than such a reduction applicable
generally to other senior executives of the Company)
Solely for purposes of
Section 4(g) below, “Good Reason” also means a
reduction in the Executive’s target bonus. For the avoidance
of doubt, other than in the event of Change of Control Termination
Without Cause or Resignation for Good Reason, as set forth in
Section 4(g), below, Executive’s bonus target percentage
may be modified by the Board or a duly appointed committee thereof
at any time at the Board’s or such committee’s sole
discretion.
(d) Termination by Executive
without Good Reason (Voluntary Resignation) .
Executive may voluntarily resign his
position and terminate his/her employment under this Agreement
without Good Reason at any time. Upon such a termination, the
Company shall have no obligation to pay compensation and provide
benefits to Executive other than the payment of all accrued, but
unpaid, Base Salary and any other unpaid expenses or expense
reimbursements prior to the effective date of such
termination.
(e) Disability
. If Executive becomes
disabled for more than one hundred eighty (180) days in any
twelve (12) month period, the Company shall have the right to
terminate Executive’s employment upon written notice to
Executive. Executive shall be deemed disabled for purposes of this
Agreement either (i) if Executive is deemed disabled for
purposes of any long-term disability insurance policy paid for by
the Company and at the time in effect, or (ii) if in the
exercise of the Company’s reasonable judgment, due to
accident, mental or physical illness, Executive cannot perform
Executive’s duties. In the event that during the Term, the
Company shall terminate Executive due to disability, as described
above, Executive shall be entitled to receive the benefits set
forth in Section 4(b) (i.e., as if Executive were terminated
by the Company without Cause).
(f) Death .
In the event of the death of
Executive, this Agreement shall automatically terminate and any
obligation to continue to pay compensation and benefits shall cease
as of the date of death, except for the payment of all accrued, but
unpaid, Base Salary and any other unpaid expenses or expense
reimbursement prior to the date of death.
(g) Change of Control
Termination Without Cause or Resignation for Good Reason
.
(i) Benefits .
S ubject to
Section 4(i) below , in the event, Executive’s
employment under this Agreement is terminated by the Company
involuntarily without Cause at any time during the period
commencing two (2) months before and ending within eighteen
(18) months after the occurrence of a Change of Control during
the Term, or Executive terminates employment with the Company for
Good Reason at any time during the period commencing two
(2) months before and ending within eighteen (18) months
after the occurrence of a Change of Control during the Term, the
Company shall, in lieu of providing Executive with any amounts or
benefits otherwise payable under this Agreement:
(A) pay Executive all compensation
and benefits accrued, but unpaid, up to the effective date of
termination; and
(B) provided that, and for so long
as, Executive complies with his/her obligations set forth in
Sections 6 and 7, below, continue to pay Executive each month in
accordance with the Company’s regular payroll practices an
amount equal to two twelfth (2/12) Executive’s annual
Base Salary in effect as of the effective date of termination; for
a period of twelve months after the effective date of termination;
and
(C) provided that, and for so long
as, Executive complies with his/her obligations set forth in
Sections 6 and 7, below, pay Executive, each month for a period of
twelve (12) months, in accordance with the Company’s
payroll practices, two twelfths (2/12) of an amount obtained
by multiplying Executive’s target bonus percentage in effect
as of the effective date of termination (expressed as a decimal)
times Executive’s annual Base Salary in effect as of such
date of termination .
(D) pay Executive a pro-rata lump
sum amount, prorated for the number of full months during the
applicable fiscal year during which Executive had been employed by
the Company prior to his/her termination, of the bonus that would
have been payable to Executive had she/he remained employed
throughout the year. Such bonus will be based upon the percentage
achievement against objectives as determined by the Company’s
board of directors at the conclusion of the applicable fiscal year
to have been earned pursuant to the terms of the Company’s
management incentive plan; and
(E) Reimburse or otherwise pay
Executive’s COBRA payments for medical and dental insurance
under the Company’s applicable plans for the lesser of
(x) twelve months from the effective date of termination or
(y) the date upon which Executive becomes eligible for medical
coverage from a new employer. Executive shall notify the Company no
later than 15 days after becoming eligible for such
coverage.
Anything contained in this
Section 4(g)(i) to the contrary notwithstanding, Executive
shall not be entitled to any of the benefits set forth in this
Section 4(g)(i) if Executive resigns and terminates such
employment voluntarily (other than for Good Reason) or is
terminated by the Company (including without limitation any
Acquiring Company) for Cause.
For purposes of Sections 4(g)(i) and
(ii) hereof, the term the “Company” shall include
any Acquiring Company (as defined below) and all obligations of the
Company under such Section shall be assumed by any Acquiring
Company.
(ii) Stock Options
. Subject to
Section 4(i) below, in the event Executive’s employment
under this Agreement is terminated by the Company involuntarily
without Cause at any time during the period commencing two
(2) months before and ending within eighteen (18) months
after the occurrence of a Change of Control during the Term or
Executive terminates his employment with the Company for Good
Reason at any time during the period commencing two (2) months
before and ending within eighteen (18) months after the
occurrence of a Change of Control during the Term, then,
notwithstanding anything to the contrary contained in any stock
option or other equity award plan of the Company (“Equity
Incentive Plan”), any and all stock options (“Stock
Options”), stock appreciation rights (“SARs”),
restricted stock units or restricted stock (collectively
“Equity Rights”) shall immediately accelerate and
become vested and exercisable upon the date of termination of
Executive’s employment. Any vested Stock Option or SAR may be
exercised during the earlier of (a) one (1) year
following the date of termination, and (b) the expiration of
the original term of the Stock Option or SAR, and the Company shall
take all actions necessary or advisable to give effect to this
Section 4(g)(ii).
Anything contained in this
Section 4(g)(ii) to the contrary notwithstanding, Executive
shall not be entitled to any of the benefits set forth in this
Section 4(g)(ii) if Executive resigns and terminates such
employment voluntarily (other than for Good Reason) or is
terminated by the Company (including without limitation any
Acquiring Company) for Cause.
(iii) Definition of
“Change of Control .&r
