Exhibit 10.26
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT
(“Agreement”) is made as of the 7th day of September,
2006 between Moldflow Corporation , a Delaware corporation
(the “Company”), and G. Fred Humbert
(“Executive”).
WHEREAS , the Company desires
to employ Executive and Executive desires to be employed by the
Company on the terms contained herein.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1.
Employment . The term of this Agreement shall extend from
the date hereof (the “Commencement Date”) until the
first anniversary of the Commencement Date and shall automatically
be extended for one additional year on each anniversary thereafter
unless, not less than 30 days prior to each such date, either
party shall have given notice that it does not wish to extend this
Agreement; provided, further, that following a Change in Control or
Transfer of Business 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 or Transfer of Business
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 Senior Vice President and General
Manager of the Manufacturing Solutions business unit (“
MMS Business Unit ”) 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 $218,000. 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 may be available
to employees from time to time and as determined by the Chief
Executive Officer or the Board of Directors. 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
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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) 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 the predecessor
to the Company’s MMS Business Unit, he has and will continue
to be brought into frequent contact with, has had and will continue
to have access to and become informed of confidential and
proprietary information of the Company’s and its
affiliates’, and particularly the MMS Business Unit’s,
business affairs, information, trade secrets, and other matters
which are of a proprietary or confidential nature, including but
not limited to, methods of operations, business opportunities,
business methods and processes, price and cost information,
finance, customer information, product and service development
information, production methodologies and processes, business
plans, various sales techniques, manuals, letters, notebooks,
procedures, reports, products, processes, services, and other
confidential information and knowledge (collectively the
“Confidential Information”). 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.
Covenants . Executive acknowledges and agrees that
in his capacity of General Manager of the MMS Business Unit and his
prior capacity as a lead salesperson of the MMS Business Unit and
its predecessor, he has learned significant Confidential
Information about the products and services of the MMS Business
Unit and that his duties on behalf of the MMS Business Unit have
required him to learn significant Confidential Information about
the business of the
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Company.
Executive further acknowledges and agrees that installing the MMS
Business Unit’s products and services at customer sites
requires close integration of all of the company’s products
and services with customers’ manufacturing processes and
that, as a result, Executive additionally has learned Confidential
Information about the Company’s customers. The Executive
recognizes that attempting to sell products and services that
compete with the company’s products and services inevitably
would require the Executive to use and disclose Confidential
Information. 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 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:
(a) 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; and
(b)
(i) solicit the business or patronage of any customer of the
Company for any other person or entity, (ii) divert, entice,
or otherwise take away from the Company the business or patronage
of any customer of the Company or attempt to do so, or
(iii) solicit or induce any customer of the Company to
terminate or reduce its relationship with the Company.
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 he
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 (“ Notice of Termination ”).
Executive’s employment hereunder may be terminated without
any breach of this Agreement under the following
circumstances:
(a) Death .
Executive’s employment hereunder shall terminate upon his
death.
(b) Disability
. If, as a result of Executive’s incapacity due to
physical or mental illness, Executive shall have been unable to
perform the material duties of his position 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
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misconduct in connection with the performance of his duties;
(B) criminal or civil conviction of Executive, a plea of nolo
contendere by Executive or conduct by Executive that would
reasonably be expected to result in material injury to the
reputation of the Company if he were retained in his position with
the Company; (C) continued, willful and deliberate
non-performance by Executive of his duties hereunder (other than by
reason of Executive’s physical or mental illness, incapacity
or disability) which has continued for more than thirty
(30) days following written notice of such non-performance
from the Board; or (D) a breach by Executive of any of the
provisions contained in 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) or result from a Transfer of Business
(as defined herein), 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 voluntarily terminate his employment hereunder. At
any time after the earlier to occur of a Change of Control (as
defined herein) or a Transfer of Business (as defined herein),
Executive may terminate his employment hereunder for Good Reason
upon thirty (30) days’ written notice to the Company
describing with particularity the Executive’s basis for
asserting Good Reason unless the Company cures the Good Reason
within thirty (30) days of receipt. 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; 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
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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, if any, 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, plus accrued vacation, to the date of his death, plus his
accrued and unpaid incentive compensation, provided that 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 that are granted to the Executive on or after the date of
this Agreement, 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
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