SECOND AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT, originally dated as of June 12, 2003, and
amended and restated effective as of May 27, 2005 and as of
December 19, 2005 (the "Agreement"), is by and between Intergraph
Corporation, a Delaware corporation (the "Company"), and R. Halsey
Wise (the "Executive").
WHEREAS,
the Company desires that the Executive continue to serve as Chief
Executive Officer and President of the Company and the Executive
desires to hold such positions under the terms and conditions of
this Agreement; and
WHEREAS,
the parties desire to enter into this Agreement setting forth the
terms and conditions of the employment relationship of the
Executive with the Company.
NOW,
THEREFORE, intending to be legally bound hereby, the parties agree
as follows:
1.
Employment . The Company hereby employs the Executive
and the Executive hereby accepts employment with the Company, upon
the terms and subject to the conditions set forth herein.
2.
Term
.
(a)
Subject to
termination pursuant to Section 9 hereof, the term of the
employment by the Company of the Executive pursuant to this
Agreement (as the same may be extended, the "Term") shall commence
on May 27, 2005 (the "Effective Date"), and terminate on May 27,
2008 (which, for purposes of this Agreement, shall be considered
the third anniversary of the Effective Date).
(b)
Commencing on the
third anniversary of the Effective Date and on each subsequent
anniversary thereof, the Term shall automatically be extended for a
period of one (1) additional year following the expiration of the
otherwise applicable Term unless, not later than ninety days (90)
prior to any such anniversary date, either party hereto shall have
notified the other party hereto in writing that such extension
shall not take effect.
3.
Position . During the Term, the Executive shall serve
as Chief Executive Officer and President of the Company performing
duties commensurate with the position of Chief Executive Officer
and such additional duties as the Board of Directors of the Company
(the "Board") shall determine, which duties shall not be materially
inconsistent with the duties to be performed by executives holding
similar offices in similarly-sized software corporations. The
Executive shall report directly to the Board. Executive
agrees to serve, without any additional compensation, as a director
on the Board and the board of directors of any subsidiary of the
Company, and/or in one or more chief executive officer positions
with any subsidiary of the Company. If the Executive's
employment is terminated for any reason, whether such termination
is voluntary or involuntary, the Executive shall resign as a
director of the Company (and any of its subsidiaries), such
resignation to be effective no later than the date of termination
of Executive's employment with the Company.
4.
Duties . During the Term, the Executive shall devote
his full time and attention during normal business hours to the
business and affairs of the Company (the "Business");
provided , however , that it shall not be a violation
of this Agreement for the Executive to (i) devote reasonable
periods of time to charitable and community activities and, with
the approval of the Company, industry or professional activities,
and/or (ii) manage personal business interests and investments, so
long as such activities do not interfere with the performance of
the Executive's responsibilities under this Agreement.
5.
Salary
and Bonus .
(a) For
purposes of this Agreement, a "Contract Year" shall mean a one-year
period commencing on the Effective Date or any anniversary
thereof. During the initial Contract Year, the Company shall
pay Executive a base salary of $600,000 per year. Commencing
on or before each anniversary of the Effective Date during the term
of this Agreement, the Board (or a committee of the Board) shall
review Executive's base salary and may increase such amount as it
may deem advisable (such salary, as the same may be increased, the
"Base Salary"). The Base Salary shall be payable to the
Executive in substantially equal installments in accordance with
the Company's normal payroll practices.
(b)
Executive
shall receive a target cash bonus opportunity for 2005 in the
amount of $600,000. The entitlement to such target cash
bonus, if any, shall be determined by the independent members of
the Board of Directors (or any designated Committee of the Board
comprised solely of independent directors) based on the year-end
audited financial statements of the Company and will be paid to the
Executive no later than March 15 of the year following the
year in which the cash bonus was earned and vested. For each
succeeding year during the term of this Agreement, Executive shall
be entitled to receive an annual target cash bonus opportunity in
an amount equal to his then current Base Salary and such bonus, as
shall be determined by the independent members of the Board of
Directors (or any designated Committee of the Board comprised
solely of independent directors), if any, shall be paid in
accordance with the procedures and time frames set out above for
payment of the cash bonus.
6.
Long-Term
Incentive Awards . During the term of this Agreement, the
independent members of the Board of Directors (or any designated
Committee of the Board comprised solely of independent directors)
will consider on an annual basis long-term incentive awards to
Executive pursuant to the Company's equity incentive
plans.
7.
Vacation,
Holidays and Sick Leave . During the Term, Executive
shall be entitled to paid vacation in accordance with the Company's
standard vacation accrual policies for its senior executive
officers as may be in effect from time to time; provided that
Executive shall during each Contract Year be entitled to at least
four (4) weeks of such vacation. During the Term, Executive
shall also be entitled to participate in all applicable Company
employee benefits set forth in the Company's Employee Benefits Plan
Summary as may be in effect from time to time.
8.
Business
Expenses . The Executive shall be reimbursed for all
reasonable and necessary business expenses incurred by him in
connection with his employment (including, without limitation,
expenses for travel and entertainment incurred in conducting or
promoting business for the Company, which shall include
reimbursement for regular travel to and from Huntsville, Alabama
and Jacksonville, Florida, and any incremental income taxes
incurred by the Executive relating to such travel reimbursement)
upon timely submission by the Executive of receipts and other
documentation in accordance with the Company's normal expense
reimbursement policies.
9.
Termination of Agreement . The Executive's employment
by the Company pursuant to this Agreement shall not be terminated
prior to the end of the Term hereof except as set forth in this
Section 9. To the extent required to comply with Section 409A
of the Internal Revenue Code of 1986, as amended (the "Code"), as
determined by the Executive's counsel if requested by the
Executive, one or more payments under this Section 9 shall be
delayed to the six month anniversary of the date of Executive's
separation from service, within the meaning of Code Section
409A. In addition, if and to the extent required to prevent a
violation of Section 409A of the Code, as determined by the
Executive's counsel if requested by the Executive, the Executive
will pay the entire cost of any health insurance benefits provided
under this Section 9 for the first six (6) months after the Date of
Termination and the Company will reimburse the Executive for the
Company's share of such costs on the six-month anniversary of the
Executive's "separation from service" as defined in Section 409A of
the Code.
(a)
By Mutual Consent
. The Executive's employment pursuant to this Agreement may
be terminated at any time by the mutual written agreement of the
Company and the Executive.
(b)
Death . The
Executive's employment pursuant to this Agreement shall be
terminated upon the death of the Executive, in which event the
Executive's spouse or heirs shall receive, when the same would have
been paid to the Executive (whether or not the Term shall have
expired during such period), all Base Salary and benefits to be
paid or provided to the Executive under this Agreement through the
Date of Termination (as defined in Section 9(i) hereof), a pro-rata
portion of the Executive's then-current target bonus payable under
Section 5(b), and any other unpaid benefits (including death
benefits) to which they are entitled under any plan, policy or
program of the Company applicable to the Executive as of the Date
of Termination. In addition, the Executive's surviving spouse
and dependents shall receive fully-paid up health insurance
benefits commensurate with the Company's standard health insurance
benefits for one (1) year following the Date of Termination.
(c)
Disability
. The Executive's employment pursuant to this Agreement may
be terminated by written notice to the Executive by the Company or
to the Company by the Executive (i) in the event that Executive
suffers a physical or mental disability entitling Executive to
long-term disability benefits under the Company's long-term
disability plan, if any, or (ii) in the absence of a Company
long-term disability plan, in the event that Executive is unable,
as determined by the independent members of the Board of Directors
(or any designated Committee of the Board comprised solely of
independent directors), to perform the essential functions of his
regular duties and responsibilities, with or without reasonable
accommodation, due to a medically determinable physical or mental
illness which has lasted (or can reasonably be expected to last)
for a period of six (6) consecutive months. In the event the
Executive's employment is terminated pursuant to this Section 9(c),
the Executive shall be entitled to receive, when the same would
have been paid to the Executive (whether or not the Term shall have
expired during such period), all Base Salary and benefits to be
paid or provided to the Executive under this Agreement through the
Date of Termination, a pro-rata portion of the Executive's
then-current target bonus payable under Section 5(b), and any other
unpaid benefits (including disability benefits) to which he is
otherwise entitled under any plan, policy or program of the Company
applicable to the Executive as of the Date of Termination. In
addition, Executive shall receive fully-paid up health insurance
benefits commensurate with the Company's standard health insurance
benefits for one (1) year following the Date of Termination.
(d)
By the Company for
Cause . The Executive's employment pursuant to this
Agreement may be terminated by written notice to the Executive
("Notice of Termination") upon the occurrence of any of the
following events (each of which shall constitute "Cause" for
termination): (i) the willful and continued failure by
Executive to substantially perform his duties after demand for
substantial performance is delivered by the Company that
specifically identifies the manner in which the Company believes he
has not substantially performed his duties, or (ii) the willful
engaging in misconduct which is materially injurious to the
Company, monetarily or otherwise. The termination of employment of
the Executive shall not be deemed to be for Cause unless the
Executive is given notice and an opportunity, together with
counsel, to be heard before the independent members of the Board of
Directors, and thereafter Executive is determined by the
independent members of the Board of Directors to be guilty of the
conduct described in subparagraph (i) or (ii) above. In the
event the Executive's employment is terminated pursuant to this
Section 9(d), the Executive shall be entitled to receive all Base
Salary and benefits to be paid or provided to the Executive under
this Agreement through the Date of Termination, and any other
unpaid benefits to which he is otherwise entitled under any plan,
policy or program of the Company applicable to the Executive as of
the Date of Termination, and no more.
(e)
By the Company
Without Cause . The Executive's employment pursuant to
this Agreement may be terminated by the Company at any time without
Cause (which shall specifically include a decision by the Company
not to extend this Agreement beyond the third anniversary of the
Effective Date) by delivery of a Notice of Termination to the
Executive. In the event that the Executive's employment is
terminated pursuant to this Section 9(e), the Executive shall be
entitled to receive (i) on or prior to the Date of Termination, all
Base Salary and benefits to be paid or provided to the Executive
under this Agreement through the Date of Termination, (ii) an
amount equal to two hundred percent (200%) of the Executive's
then-current target bonus payable under Section 5(b), (iii) an
amount equal to two hundred percent (200%) of the Executive's Base
Salary at the then-current rate of Base Salary, (iv) fully paid-up
health insurance benefits commensurate with the Company's standard
health insurance benefits for two (2) years following the Date of
Termination, and (v) any other unpaid benefits to which the
Executive is otherwise entitled under any plan, policy or program
of the Company applicable to the Executive as of the Date of
Termination. The amounts referred to in clause (ii) and
clause (iii) above shall collectively be referred to as the
"Severance Amount." The Severance Amount shall be paid to the
Executive in a lump sum no later than ten (10) days following the
Date of Termination. As a condition to receiving the
Severance Amount, Executive agrees to sign, at the time of
termination of his employment, a release in favor of the Company of
all employment-law related claims.
(f)
By the Executive for
Good Reason . The Executive's employment pursuant to this
Agreement may be terminated by the Executive by written notice of
his resignation ("Notice of Resignation") delivered within twelve
(12) months after the occurrence of any of the following events
(each of which shall constitute "Good Reason" for
resignation): (i) a material reduction in Executive's
position, authority, duties or responsibilities, including, without
limitation, the failure of Executive to be renominated to the Board
of Directors of the Company or to be nominated or named to the
board of directors of any entity that acquires control of more than
50% of the Voting Securities of the Company or, if such entity is a
subsidiary of another entity, the ultimate parent of such
subsidiary, (ii) a reduction in Executive's Base Salary or target
bonus payable pursuant to Section 5, (iii) a failure by the Company
to require a successor corporation of the Company to honor the
terms of this Agreement or (iv) a decision by the Company not to
extend this Agreement beyond the third anniversary of the Effective
Date; provided, however, that "Good Reason" shall exclude the death
or Disability of the Executive. Notwithstanding the
provisions of clause (i) above, in the event the Executive is
elected to serve as the president, chief executive officer and/or a
member of the board of directors of any entity which acquires
control of more than 50% of the Voting Securities of the Company
or, if such entity is a subsidiary of another entity, the ultimate
parent of such subsidiary, and is provided with a written
employment agreement by the entity or, if such entity is a
subsidiary of another entity, the ultimate parent of such
subsidiary, on substantially the same terms as those contained in
this Agreement, the appointment to such position shall not
constitute Good Reason for purposes of this Agreement. In the
event that the Executive resigns for Good Reason pursuant to this
Section 9(f), the Executive shall be entitled to receive (i) on or
prior to the Date of Termination, all Base Salary and benefits to
be provided to the Executive under this Agreement through the Date
of Termination, (ii) the Severance Amount referred to in Section
9(e) payable at the times and in the manner set forth in Section
9(e) above, provided that applicable references therein to the date
of delivery of Notice of Termination shall mean reference to the
date of delivery of Notice of Resignation, (iii) fully paid-up
health insurance benefits commensurate with the Company's standard
health insurance benefits for two (2) years following the Date of
Termination and (iv) any other unpaid benefits to which the
Executive is otherwise entitled under any plan, policy or program
of the Company applicable to the Executive as of the Date of
Termination. As a condition to receiving the Severance
Amount, Executive agrees to sign, at the time of termination of his
employment, a release in favor of the Company of all employment-law
related claims.
(g)
By the Executive
Without Good Reason . The Executive's employment pursuant
to this Agreement may be terminated by the Executive at any time by
delivery of a Notice of Resignation to the Company. In the
event that the Executive's employment is terminated pursuant to
this Section 9(g)(whether by Notice of Resignation to the Company
or notice of non-renewal of this Agreement by Executive pursuant to
Section 2(b)), the Executive shall receive all Base Salary and
benefits to be paid or provided to the Executive under this
Agreement through the Date of Termination, any other unpaid
benefits to which the Executive is otherwise entitled under any
plan, policy or program of the Company applicable to the Executive
as of the Date of Termination, and no more.
(h)
Following a Change in
Control . In the event, within twenty-four (24) months
following a Change in Control, Executive (i) resigns for Good
Reason (as defined and qualified in Section 9(f) above) or is (ii)
terminated without Cause, the Executive shall be entitled to
receive (A) on or prior to the Date of Termination, all Base Salary
and benefits to be paid or provided to the Executive under this
Agreement through the Date of Termination, (B) an amount equal to
two hundred fifty percent (250%) of the Executive's then-current
target bonus payable under Section 5(b), (C) an amount equal to two
hundred fifty percent (250%) of the Executive's Base Salary at the
then-current rate of Base Salary, (D) fully paid-up health
insurance benefits commensurate with the Company's standard health
insurance benefits for two (2) years following the Date of
Termination, and (E) any other unpaid benefits to which the
Executive is otherwise entitled under any plan, policy or program
of the Company applicable to the Executive as of the Date of
Termination. The amounts referred to in clause B and clause C
above shall collectively be referred to as the "Change in Control
Severance Amount." The Change in Control Severance Amount
shall be paid to the Executive in a lump sum no later than ten (10)
days following the Date of Termination. As a condition to
receiving the Change in Control Severance Amount, Executive agrees
to sign, at the time of termination of his employment, a release in
favor of the Company and/or its successor of all employment-law
related claims. Payments pursuant to this Section (h) shall
be made in lieu of, and not in addition to, any payment pursuant to
any other paragraph of this Section 9.
(i)
Date of
Termination . The Executive's Date of Termination shall
be (i) if the Executive's employment is terminated pursuant to
Section 9(b), the date of his death, (ii) if the Executive's
employment is terminated pursuant to Section 9(c), the date on
which a Notice of Termination is given, (iii) if the Executive's
employment is terminated pursuant to Section 9(d), the date on
which a Notice of Termination is given, (iv) if the Executive's
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