Exhibit 10.25
TRANSITION AGREEMENT
This TRANSITION AGREEMENT is made as
of June 20, 2007, between Moldflow Corporation
(“Moldflow” or the “Company”) and
Christopher L. Gorgone (“Executive”).
WHEREAS, the Executive is currently
employed by the Company as Executive Vice President and Chief
Financial Officer;
WHEREAS, on July 8, 2005, the
Executive and the Company entered an Amended and Restated Executive
Employment Agreement (the “Employment
Agreement”);
WHEREAS, the Company and the
Executive have agreed that the Executive’s employment will
terminate no later than September 30, 2007 and that this
Agreement shall serve as the written notice required by Section
6(f) of the Employment Agreement; and
WHEREAS, the Company and the
Executive seek to establish mutually acceptable terms for the
Executive’s transition and departure from the Company’s
employment.
NOW, THEREFORE, in connection with
the Executive’s transition from Moldflow and in consideration
of the mutual covenants below, the parties agree as follows:
1. Relationship
with Moldflow . The Executive has agreed to resign
from his position as Executive Vice President, Chief Financial
Officer, Treasurer and Assistant Secretary and from all other
positions and directorships that he holds at Moldflow and its
subsidiaries and/or affiliates on the date of this Agreement.
Beginning on the date hereof and continuing until the earlier of
(a) his decision to leave Moldflow’s employment
voluntarily (b) Moldflow’s decision to terminate his
employment without Cause; or (c) September 30, 2007 (the
earliest of which is referred to herein as the “Termination
Date”), a period hereinafter referred to as the
“Transition Period”, the Executive has agreed to
provide services to Moldflow as Senior Advisor to the Chief
Executive Officer regarding matters related to the disposition of
the MMS Division, implementation of the Company’s ERP system
and such other matters as may be requested from time to time by the
Chief Executive Officer.
2. Compensation
and Benefits during Transition Period .
(a) During
the Transition Period, the Executive shall receive his current base
salary, payable in accordance with Moldflow’s standard
payroll practice. Executive will be eligible to continue
participating in Moldflow’s 401(k) plan, group medical and
dental plans and other similar health and welfare plans, including
the Company’s portable life insurance plan with Unum, during
the Transition Period on the terms and conditions available to the
other members of the Company’s executive team.
(b) Upon
completion of the FY2007 audit and after approval by the Board of
Directors or the appropriate committee thereof, Executive will also
receive, if actually awarded, a bonus (the “FY07
Bonus”) pursuant to the terms of the Moldflow Corporation
Cash Bonus Plan, which FY07 Bonus will be calculated using the same
financial and non-financial targets and final fiscal 2007 actual
financial and non-financial results as are applied to the other
members of the executive team. The FY07 Bonus will be paid to
Executive at the same time as the bonuses for FY07 are paid to the
other members of the Executive Team, it being agreed that if the
Termination Date occurs prior to such payment based on the reason
set forth in Section 1(a) hereof, then the Executive shall forfeit
such FY07 Bonus.
3.
Transition . The Executive agrees to fully cooperate
in transitioning his current responsibilities to such Moldflow
employees as determined by Moldflow. In addition, he agrees to
sign,
execute,
make and do all such deeds, documents, acts and things Moldflow may
reasonably require to effect such transition. The Executive and the
Company agree that the Executive will not be required to report to
work after June 20, 2007 and that his duties shall be
performed from time to time upon the request of the Chief Executive
Officer.
4. Termination
Payments .
(a)
Termination Without Cause, Voluntarily Termination, or
Termination on September 30, 2007 . On the Termination
Date, Moldflow shall pay the Executive for all earned salary and
accrued and unused vacation time as of that date. Moldflow will
provide the Executive with the following benefits, subject to
signing by the Executive of a general release of claims in a form
and manner satisfactory to the Company (the
“Release”):
(i)
Moldflow shall pay the Executive one times the sum of (a) the
result of (x) his base salary in effect on the Termination
Date which the parties agree to be $222,789, less (y) the
actual amount of base salary paid to Executive between the date
that is 30 days from the date of this Agreement and the Date
of Termination; and (b) a bonus amount which the parties agree
to be $46,659. Because at the time of the Executive’s
separation from service within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”), the Executive will be considered a
“specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code, the payment described in
this Section 4(a)(i) shall not be paid prior to the date that
is the earliest of (i) six months and one day after the Date
of Termination, or (ii) the Executive’s death.
(ii)
Beginning on the Termination Date, the Executive will be eligible
to participate in Moldflow’s group medical and dental plans
in accordance with the Consolidated Omnibus Budget Reconciliation
Act of 1985 (“COBRA”). To continue medical and dental
insurance coverage, the Executive must elect COBRA continuation
coverage. If the Executive elects COBRA continuation coverage and
provided that he and his beneficiaries remain eligible for
COBRA continuation coverage, Moldflow shall continue to pay for
medical and dental insurance premiums for coverage of him and his
beneficiaries to the same extent as if he had remained employed
through the period determined by finding the result of (x) the
period that is 12 months from the Termination Date, less
(y) the number of whole months during which the Executive
actually received such benefits during the Transition Period in
excess of 30 days from the date of this Agreement. (For
purposes of clarity in the event that the Date of Termination is
September 30, 2007, then the total number of months shall be
12 months less 2 months or 10 months). The Executive
will be responsible for the remaining portion of such coverage as
if he remained employed. If the Executive elects COBRA continuation
coverage, he may continue coverage for himself and any
beneficiaries at his own expense for the remainder of the COBRA
period; to the extent he and they remain eligible. Executive may at
his option continue his life insurance after the Termination Date
by contacting Unum directly.
(i
