EXHIBIT 10.5
AMENDED AND RESTATED AGREEMENT
This Agreement is entered
into as of this 10th day of February, 2000, between Parametric Technology
Corporation, a Massachusetts corporation (the "Company"), and
Barry F. Cohen (the "Officer"), and amends and restates the
Agreement dated February 1, 1998 between the Company and the
Officer.
WHEREAS, the Officer is
the Executive Vice President, Marketing; 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
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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.
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.
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6.
Successors.
(a) This
Agreement is personal to the Officer and without the prior written 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:
Barry F. Cohen
649 Sudbury Road
Concord, MA 01742
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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 Operating Officer |
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/s/ Barry F. Cohen |
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Barry F. Cohen |
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