EXHIBIT 10.2
AMENDED AND RESTATED AGREEMENT
This Amended and Restated
Agreement is entered into as of this 1st day of March, 2000 between
Parametric Technology Corporation, a Massachusetts corporation (the
"Company"), and Steven C. Walske (the "Executive"), and
amends and restates the Agreement dated June 20, 1990, as amended, between
the Company and the Executive.
WHEREAS, effective March
1, 2000, the Executive is the Chairman of the Board and Chief Business
Strategist of the Company; and
WHEREAS, to provide
incentive for the Executive to remain with the Company, the Company desires
to make the following arrangements with the Executive concerning his
employment;
NOW, THEREFORE, the
Company and the Executive hereby agree as follows:
1.
Termination Notice. The Company agrees that it may not terminate the
employment of the Executive unless it does so for Cause (as defined below)
by delivering to the Executive a written notice of such termination of
employment (the "Termination Notice").
2.
Salary.
(a) In the event that
a Change in Status (as defined below) of the Executive occurs prior to a
Termination Notice, the Company and the Executive shall enter into a
five-year Employment Agreement in the form attached hereto as Exhibit A, and
the Company shall have no obligation to make any payments to the Executive
under this Agreement; provided, however, that in the event that the
Executive remains employed with the Company for a period of six months
following the effective date of a Change in Status, the Company shall pay to
the Executive on such six-month anniversary date a one-time amount equal to
the most recent fiscal year end bonus paid to the Executive. For purposes of
this Agreement, "fiscal year end bonus" shall include all amounts
paid to the Executive under any bonus plans or programs of the Company with
respect to his services to the Company in the preceding fiscal
year.
(b) In the event of a
termination for Cause, the Executive's salary and benefits shall cease at the time of
such termination.
3.
Stock Options.
(a) Effective upon (i)
a Change in Control (as defined below) of the Company or (ii) the death or
Disability (as defined below) of the Executive, all stock options granted to
the Executive and then outstanding under any Stock Option Plan (as defined
below) of the Company shall become exercisable in full, notwithstanding any
vesting schedule or other provisions to the contrary in the agreements
evidencing such options; and the Company and the Executive hereby
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agree that such option agreements are hereby and will be deemed amended to
give effect to this provision.
(b) Effective upon a
termination by the Company of the Executive's employment for Cause, each
vested stock option under any Stock Option Plan that is held by the
Executive on the date of termination of the Executive's employment, to the
extent not previously exercised at the date of such termination, shall
expire to the extent not exercised within ten (10) days after the date of
such termination. All non-vested stock options shall terminate on the date
of such termination.
(c) Effective upon a
Change in Status, the terms of the Employment Agreement attached hereto as
Exhibit A shall apply.
4.
Definitions.
(a) The Company shall
be deemed to have terminated the Executive's employment for
"Cause" if it does so (i) for willful conduct or gross negligence
by the Executive which is demonstrably and materially injurious to the
Company, or (ii) for the Executive's willful violation of any material
provision of any confidentiality, nondisclosure, assignment of invention,
noncompetition or similar agreement entered into by the Executive in
connection with his employment by the Company. For purposes of this
paragraph, no act or failure to act on the Executive's part shall be deemed
"willful" unless done or omitted to be done by the Executive not
in good faith and without reasonable belief that his action or omission was
in the best interests of the Company.
(b) A "Change in
Control" of the Company shall mean the occurrence of any of the
following events: (i) any "person", as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
or any corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportion as their ownership of stock of
the Company) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing 50% or more of the combined voting power of the
Company's then outstanding securities (other than as a result of
acquisitions of such securities from the Company); (ii) individuals who, as
of the date hereof, constitute the Board of Directors of the Company (the
"Incumbent Board") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company's stockholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in
connection with an actual or threatened election contest relating to the
election of the directors of the Company) shall be, for purposes of this
Agreement, considered to be a member of the Incumbent Board; (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than (A) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) more than
50% of the combined
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voting power of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation or (B) a merger
or consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as defined above)
acquires more than 20% of the combined voting power of the Company's then
outstanding securities; or (iv) the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
(c) "Change in
Status" of the Executive shall mean (i) the Company's written notice to
the Executive of a Change in Status (which may be effected at any time and
for any reason in the Company's sole discretion), after approval by the
Board of Directors of the Company, or (ii) the Executive's written notice to
the Company of a Change in Status, based on the Executive's good faith
belief that any of the following circumstances have occurred: any diminution
or change in a manner adverse to the Executive of (A) his title, office or
position with the Company, (B) his salary or other benefits, or (C) his
duties, responsibilities or employment condition. The Executive may not
effect a Change in Status pursuant to subsection (ii)(C) of this paragraph
prior to one year from the date hereof.
(d)
"Disability" shall mean the inability of the Executive, for a
period of at least 60 consecutive days, to perform his employment duties as
a result of a physical or mental illness or incapacity.
(e) A "Stock
Option Plan" of the Company shall mean any stock option or equity
compensation plan of the Company in effect at any time.
5.
Term. This Agreement shall continue in effect until February 28,
2003, unless extended by the mutual written consent of the Company and the
Executive.
6.
Successors.
(a) This Agreement is
personal to the Executive and without the prior written consent of the
Company shall not be assignable by the Executive otherwise than by will or
the laws of descent and distribution.
(b) This Agreement
shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in
this Agreement, "Company" shall mean the Company as defined above
and any successor to its business and/or assets as aforesaid which assumes
and agrees to perform this Agreement.
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7.
Miscellaneous.
(a) This Agreement
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, without reference to principles of conflict
of laws.
(b) This Agreement may
not be amended or modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal
representatives.
(c) All notices and
other communications hereunder shall be in writing and shall be delivered by
hand delivery, by a reputable overnight courier service, or by registered or
certified mail, return receipt requested, postage prepaid, in each case
addressed as follows:
If to the Company:
Parametric Technology Corporation
128 Technology Drive
Waltham, MA 02453
Attention: General Counsel
If to the Executive:
Steven C. Walske
164 Chestnut Hill Road
Chestnut Hill, MA 02167
or to such other address as either party shall have
furnished to the other in writing in accordance herewith. Any Notice or
communication shall be deemed to be delivered upon the date of hand
delivery, one day following delivery to such overnight courier service, or
three days following mailing by registered or certified mail.
EXECUTED as of the date
first written above.
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PARAMETRIC TECHNOLOGY CORPORATION |
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By: |
/s/ C. Richard Harrison |
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C. Richard Harrison
President and Chief Executive Officer |
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/s/ Steven C. Walske |
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Steven C. Walske |
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EXHIBIT A
EMPLOYMENT AGREEMENT
This Employment Agreement
("Agreement") is entered into as of [..........] (the
"Effective Date") by and between Parametric Technology Corporation
(the "Company"), a Massachusetts corporation with its principal
place of business at 128 Technology Drive, Waltham, Massachusetts 02453 and
Steven C. Walske (the "Executive"), residing at 164 Chestnut Hill
Road, Chestnut Hill, MA 02467.
RECITALS
WHEREAS, the Executive
has resigned his position as Chairman of the Board and Chief Business
Strategist effective as of the close of business on [..........]; and
WHEREAS, the Company
desires to continue to employ the Executive in the new position of
[..........], under the terms and conditions set forth below, effective
immediately.
NOW, THEREFORE, in
consideration of the foregoing recitals, the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
ARTICLE I
EMPLOYMENT
The Company hereby agrees
to continue to employ the Executive and the Executive hereby agrees to serve
the Company in the position of [..........] and to perform such specific
duties as may reasonably be assigned to the Executive from time to time by
the Chief Executive Officer of the Company for the period commencing on the
Effective Date and terminating on [..........], unless earlier terminated as
provided herein (the "Employment Period").
ARTICLE II
COMPENSATION
For services to be
rendered by the Executive to the Company pursuant to this Agreement, during
the Employment Period the Company shall pay to the Executive the
compensation and provide to the Executive the benefits set forth
below:
(i)
Salary: The Company shall pay to the Executive, a bi-weekly salary in
the gross amount of $18,461.50.
(ii)
Executive Benefits: In addition, (A) the Company shall provide to
the
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Executive benefits under the Company's standard benefit plans pursuant to the
same terms and conditions under which the Company makes such benefits
available to Executives generally, including health insurance, dental
insurance, life insurance, and short-term and long-term disability coverage,
and (B) the Executive shall remain eligible to participate in the Company's
401(k) Savings Plan and 2000 Employee Stock Purchase Plan, as well as the
Company's 1987 Incentive Stock Option Plan, 1997 Nonstatutory Stock Option
Plan and 2000 Equity Incentive Plan (the "Option Plans"), all
subject to the terms and conditions of the respective plans.
ARTICLE III
TERMINATION
3.1
For Cause. The Executive may be terminated from his employment by the
Company only for "Cause." "Cause" shall mean, for
purposes of this Agreement, (i) willful conduct or gross negligence by the
Executive which is demonstrably and materially injurious to the Company,
(ii) the Executive's willful violation of Articles VI or VII hereof, and/or
(iii) the Executive's becoming a full-time employee with another company;
provided, however that the Executive shall be permitted to provide
consulting services to entities other than the Company so long as such
services are provided in a manner consistent with this Agreement.
3.2
Without Cause. The Executive may terminate his employment by the
Company without cause by providing to the Company fourteen days' prior
written notice of such termination.
3.3
Death. In the event of the death of the Executive during the term
hereof, the Executive's employment shall automatically terminate as of the
date of his death.
ARTICLE IV
EFFECT OF TERMINATION
4.1
For Cause. Upon termination of the Executive's employment for Cause,
the Executive's salary and benefits specified in Article II shall cease at
the time of such termination, provided that the Company shall pay to the
Executive, within twenty (20) days after the date of such termination, all
amounts accrued under clause (i) of Article II as of the date of such
termination. Each vested stock option under the Option Plans that is held by
the Executive on the date of termination of the Executive's employment, to
the extent not previously exercised at the date of such termination, shall
expire to the extent not exercised within ten (10) days after the date of
such termination. All non-vested stock options shall terminate on the date
of such termination.
4.2
Without Cause. In the event that the Executive terminates his
employment with the Company without Cause, the Executive's salary and
benefits specified in Article II shall cease on the date of termination of
Executive's employment, provided that the Company shall pay to the
Executive, within twenty (20) days after the date of such termination, all
amounts
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accrued under clause (i) of Article II as of the date of such termination.
Each vested stock option under the Option Plans that is held by the
Executive on the date of termination of the Executive's employment, to the
extent not previously exercised at the date of such termination, shall
expire to the extent not exercised within ten (10) days after the date of
such termination. All non-vested stock options shall terminate on the date
of such termination.
4.3
Death. Upon termination of the Executive's employment due to the
Executive's death, the Executive's salary and benefits specified in Article
II shall cease at the time of such termination, provided that the Company
shall pay to the Executive's estate, within twenty (20) days after the date
of such termination, all amounts then accrued under Article II, clause (i)
hereof. Effective upon the termination of Executive's employment, all
outstanding stock options under the Option Plans that are held by the
Executive shall become exercisable in full, notwithstanding any vesting
schedule or other provisions to the contrary in the agreements evidencing
such options; and the Company and the Executive hereby agree that such
option agreements are hereby amended to give effect to this
provision.
4.4
Expiration of Employment Period. Upon expiration of the Employment
Period, the Executive's salary and benefits specified in Article II shall
cease, provided that the Company shall pay to the Executive, within twenty
(20) days after the date of such expiration, all amounts accrued under
clause (i) of Article II as of the date of such expiration. Each vested
stock option under the Option Plans that is held by the Executive on the
date of expiration of the Employment Period, to the extent not previously
exercised as of the date of expiration of the Employment Period, shall
expire to the extent not exercised within ten (10) days after the date of
expiration of the Employment Period. All non-vested stock options shall
terminate on the date of expiration of the Employment Period.
ARTICLE V
CHANGE IN CONTROL
5.1
Change in Control Defined. A "Change in Control" of the
Company shall mean the occurrence of any of the following events: (i) any
"person", as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, or any corporation owned
directly or indirectly by the stockholders of the Company in substantially
the same proportion as their ownership of stock of the Company) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding securities (other than as a result of acquisitions of such
securities from the Company); (ii) individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the "Incumbent
Board") cease for any reason to constitute at least a majority of the
Board, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
stockholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of
an individual whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of the
directors of the Company) shall be, for
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purposes of this Agreement, considered to be a member of the Incumbent Board;
(iii) the stockholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than (A) a merger or
consolidation which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than 50% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation or (B) a merger or consolidation effected
to implement a recapitalization of the Company (or similar transaction) in
which no "person" (as defined above) acquires more than 20% of the
combined voting power of the Company's then outstanding securities; or (iv)
the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets.
5.2
Effect of a Change in Control. Effective upon a Change in Control of
the Company, all stock options granted to the Executive and then outstanding
under any Option Plan shall become exercisable in full, notwithstanding any
vesting schedule or other provisions to the contrary in the agreements
evidencing such options; and the Company and the Executive hereby agree that
such option agreements are hereby and will be deemed amended to give effect
to this provision.
ARTICLE VI
NON-DISPARAGEMENT
During the Employment
Period and thereafter, the Executive agrees to refrain from making any
disparaging remarks about the Company, its officers, employees, customers,
business partners or products. The provisions of this Article shall survive
the termination or expiration of this Agreement.
ARTICLE VII
COMPLIANCE WITH EXISTING AGREEMENT
The Executive agrees to
be bound by all of the terms and conditions contained in that certain
Non-Competition, Non-Disclosure and Inventions Agreement signed by the
Executive on or about December 1, 1986, by and between the Company and the
Executive (the "1986 Agreement"), a copy of which is attached
hereto and which is incorporated herein by reference.
ARTICLE VIII
SUCCESSORS AND ASSIGNS
8.1
Assignment. This Agreement is personal to the Executive and shall not
be assignable by the Executive.
8.2
Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
8.3
Obligations of Successor. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of
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the business and/or assets of the Company to assume expressly and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken
place. As used in this Agreement, "Company" shall mean the Company
as defined above and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 No
Representations. The Executive represents and acknowledges that in
executing this Agreement the Executive does not rely and has not relied upon
any representation or statement not set forth herein made by the Company or
by the Company's agents, representatives, or attorneys with regard to the
subject matter, basis or effect of the Agreement or otherwise.
9.2
Governing Law. This Agreement and any and all litigation that may
arise as a result of, based upon, or in connection with this Agreement shall
be brought exclusively before a court in Cambridge or Boston, Massachusetts
and be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts, without reference to principles of conflict
of laws.
9.3
Amendment. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
9.4
Counterparts. This Agreement may be executed in one or more
counterparts, any one of which shall be deemed to be the original even if
the others are not produced.
9.5
Notices. All notices hereunder shall be in writing and shall be
delivered by hand delivery, by a reputable overnight courier service, or by
registered or certified mail, return receipt requested, postage prepaid, to
the parties at their respective addresses set forth above or at such other
address as either party shall have furnished to the other in writing in
accordance herewith. Any notice shall be deemed to be delivered upon the
date of hand delivery, one day following delivery to such overnight courier
service, or three days following mailing by registered or certified
mail.
9.6
Captions. Captions herein have been inserted solely for convenience
of reference and in no way define, limit or describe the scope or substance
of any provision of this Agreement.
9.7
Severability. In case any provision hereof shall, for any reason, be
held to be invalid or unenforceable in any respect, such invalidity or
unenforceability shall not effect any other provision hereof, and the
parties agree to substitute for such invalid or unenforceable provision a
valid and enforceable provision which most clearly approximates the interest
and economic effect of such invalid or unenforceable provision.
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9.8
Entire Agreement. This Agreement, the 1986 Agreement and any
outstanding agreements pursuant to the Option Plans, constitutes the
entire understanding and agreement between the parties hereto with regard to
the subject matter hereof, and fully supersedes all prior understandings and
agreements, whether oral or written.
IN WITNESS WHEREOF, this
Agreement has been signed as of the date set forth below.
| PARAMETRIC TECHNOLOGY CORPORATION |
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THE EXECUTIVE |
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| Name: |
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Steven C. Walske |
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