EXHIBIT 10.4
AMENDED AND RESTATED AGREEMENT
This Amended and Restated
Agreement is entered into as of this 10th day of February, 2000 between
Parametric Technology Corporation, a Massachusetts corporation (the
"Company"), and Edwin J. Gillis (the Officer"), and amends
and restates the Agreement dated October 2, 1995, as amended, between the
Company and the Officer.
WHEREAS, the Officer is
the Executive Vice President, Chief Financial Officer and Treasurer of the
Company; and
WHEREAS, to provide
incentive for the Officer to maintain employment with the Company, the
Company desires to make the following arrangements with the Officer
concerning his termination of employment.
NOW, THEREFORE, the
Company and the Officer hereby agree as follows:
1.
Termination Notice. The Company agrees that it may not terminate the
employment of the Officer unless (i) such termination is for Cause (as
defined below) or (ii) the Company has delivered to the Officer a written
notice of such termination (the "Termination Notice") at least six
months in advance of the termination date. The duties of the Officer during
the period from the date of delivery of a Termination Notice until the
termination of his employment shall be as determined by the Board of
Directors.
2.
Salary. During the period from the date of delivery of the
Termination Notice (the "Notice Date") until the earlier of (i)
the date six months after the Notice Date or (ii) the date the Officer
commences employment with another company or organization, the Company shall
pay to the Officer a salary that is equal, on an annualized basis, to the
highest annual salary (excluding any bonuses) in effect with respect to the
Officer during the six-month period immediately preceding the Termination
Notice.
3.
Stock Options. Effective upon a Change in Control (as defined below)
of the Company, all stock options granted to the Officer 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 Officer hereby agree that such option agreements are
hereby and will be deemed amended to give effect to this
provision.
4.
Definitions.
(a) A termination by
the Company of the Officer's employment for "Cause" shall mean
termination (i) for the Officer's willful and continued failure to
substantially perform his duties to the Company (other than any such failure
resulting from the Officer's incapacity due to physical or mental illness or
any such actual or perceived failure after a Change in Status of the
Officer), provided that (a) the Company has delivered a written demand for
substantial performance to the Officer specifically identifying the manner
in which the Company believes that the Officer has not substantially
performed his duties, and (b) the Officer has not cured such
failure within 30 days after such demand, (ii) for willful conduct by the
Officer which is demonstrably and materially injurious to the Company, or
(iii) for the Officer's willful violation of any material provision of any
confidentiality, nondisclosure, assignment of invention, noncompetition or
similar agreement entered into by the Officer in connection with his
employment by the Company. For purposes of this paragraph, no act or failure
to act on the Officer's part shall be deemed "willful" unless done
or omitted to be done by the Officer 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 in
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 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) A "Stock
Option Plan" of the Company shall mean any stock option or equity
compensation plan of the Company in effect at any time, including without
limitation the 1987 Incentive Stock Option Plan and the 1997 Incentive Stock
Option Plan.
5.
Term. This Agreement shall continue in effect until February 28,
2003, unless extended by the mutual written consent of the Company and the
Officer.
6.
Successors.
(a) This Agreement is
personal to the Officer and without the prior written
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consent of the Company shall not be assignable by the Officer 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.
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: Corporate Counsel
If to the Officer:
Edwin J. Gillis
7 Merrill Street
Hingham, MA 02043
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.
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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 Operating Officer |
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/s/ Edwin J. Gillis |
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Edwin J. Gillis |
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