Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of March, 1993, by and between FTP
Software, Inc., a Massachusetts corporation with its principal place of business
located at 2 High Street, North Andover, MA 01845 (hereinafter referred to as
"FTP") and David H. Zirkle, an individual residing at 6 Quimby Lane, Atkinson,
NH 03811 (hereinafter referred to as "Zirkle").
WHEREAS, FTP currently employs Zirkle in the capacity of President and
Chief Executive Officer pursuant to an Employment Agreement dated November 6,
1992 (hereinafter referred to as the "Prior Agreement"), a copy of which is
annexed hereto as Exhibit 1; and
WHEREAS, FTP and Zirkle desire to amend the terms and conditions pursuant
to which Zirkle will remain as President and Chief Executive Officer of FTP;
NOW THEREFORE, in consideration of these premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
1. FTP shall continue the employment of Zirkle as its President and Chief
Executive Officer for a period of two (2) years commencing March 1, 1993, and
Zirkle hereby accepts such continuing employment. As President and Chief
Executive Officer, Zirkle shall devote his full time and effort to the affairs
of FTP and shall have the maximum authority permitted under FTP's Articles of
Organization and By-Laws, as well as under the laws of the Commonwealth of
Massachusetts governing corporations.
2. As compensation for the services to be performed by Zirkle as President and
Chief Executive Officer of FTP pursuant to Paragraph 1 hereof, FTP shall:
A. Pay to Zirkle an aggregate base salary in the sum of Four Hundred
Thirty Thousand ($430,000.00) Dollars (hereinafter referred to as the "Base
Salary"), which shall be subject to periodic increases (hereinafter referred to
as the "Adjusted Base Salary") by FTP's Board of Directors. Except as otherwise
provided for herein, the Base Salary and Adjusted Base Salary shall be payable
in equal installments over the term of employment specified in Paragraph 1
hereof, consistent with FTP's current payroll practices for executive employees:
B. Pay to Zirkle full incentive and bonus compensation as is provided to
other executive officers under FTP's Executive Compensation Plan, a copy of
which is annexed hereto as Exhibit 2 and made a part hereof; and
C. Provide such other benefits as is provided to its other executive
officers.
3. In the event FTP breaches any material term or condition of this Agreement
or Zirkle is removed as a director, President and/or Chief Executive Officer of
FTP prior to February 28, 1995, for any reason other than his breach of this
Agreement or his commission of (i) a felony; or (ii) an act of fraud or
dishonesty against FTP, FTP shall immediately pay to Zirkle the greater of:
A. All sums which may have otherwise become due and payable to or for the
benefit of Zirkle under this Agreement (including FTP's obligations, contingent
or otherwise under Paragraphs 3D, 3E and 4 of the Prior Agreement); or
B. An amount equal to Twenty Five (25%) Percent of the greater of the
Base Salary or the Adjusted Base Salary.
4. Zirkle, as a material inducement to FTP to enter into this Agreement, shall
promptly enter into FTP's standard confidentiality and inventions agreements.
5. If, during the term of this Agreement, more than Fifty (50%) Percent of
FTP's issued and outstanding shares of voting equity securities are acquired or
accumulated by any person, firm, entity or "control" group (as that term is
defined under the Securities Exchange Act of 1934, as amended) in a transaction
or series of transactions which did not receive the prior approval or consent of
FTP's then constituted board of directors, the term of this Agreement shall
automatically be extended for a period of two (2) years from the date of such
acquisition or accumulation with a base salary equal to the greater of the Base
Salary or the Adjusted Base Salary. In connection with any such extension, all
unexercised stock options previously issued to Zirkle shall immediately vest and
shall remain exercisable for the remainder of their stated life, regardless of
his continued employment or any term or condition contained in the stock options
which would cause the earlier termination in the event of his termination of
employment
6. All notices required or permitted to be given under this Agreement shall be
in writing and personally or electronically delivered, or sent by certified
mail, return receipt requested, postage prepaid. Notice to either party shall
be delivered to his or its address as first specified above, or to such other
address as such party shall designate by notice to the other. Notices shall be
effective on the earlier of delivery or, if mailed, three (3) days after mailing
in accordance with this Paragraph 6.
7. This Agreement represents the entire understanding between the parties with
respect to the subject matter hereof and, except as herein provided, supersedes
all prior discussions, understandings, dealings and agreements relating thereto,
including the Employment Agreement between the parties dated November 6, 1992.
It is specifically agreed and understood, however, that Paragraphs 3D, 3E and 4
of the Prior Agreement shall survive the execution of this Agreement and shall
remain in full force and effect as though incorporated herein.
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8. No waiver, amendment or modification of or to this Agreement shall be
enforceable unless in writing and signed by the both parties. The waiver of any
breach of this Agreement shall not constitute a waiver of any future breach.
9. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts consistent with contracts executed and
to be performed therein. The parties consent to the exclusive jurisdiction of
the state and federal courts located in the Commonwealth of Massachusetts in
connection with any dispute or controversy arising hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ David H. Zirkle
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David Zirkle
FTP Software, Inc.
By: /s/ Nancy L. Connor
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