EXHIBIT 10.12
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT"), made this ___ day of
__________, 1997, is by and between ORCAD, INC., a Delaware corporation
("ORCAD"), and MICHAEL WIMBROW who resides at 24 Diamondgate, Aliso Viejo,
California 92656 ("EXECUTIVE"), who are referred to herein separately as a
"PARTY" and collectively as the "PARTIES". This Agreement is entered into in
accordance with that certain Agreement and Plan of Merger (the "MERGER
AGREEMENT") by and among OrCAD, OCA MERGER CORPORATION, an Oregon corporation
("MERGER SUB"), and MICROSIM CORPORATION, a California corporation ("MICROSIM"),
pursuant to which Merger Sub merges with and into MicroSim and all of
Executive's shares of MicroSim's common stock are exchanged for shares of
OrCAD's common stock.
The parties agree as follows:
1. EMPLOYMENT.
----------
A. TERM. The term of this Agreement relating to Executive's employment
with OrCAD shall begin as of the Effective Time (as defined in the Merger
Agreement) and shall continue until the first anniversary of the Effective Time
(the "EXPIRATION DATE") unless earlier terminated as provided herein.
B. FULL TIME. Executive will work full time for OrCAD. Executive will
devote his best efforts in support of OrCAD's operations and goals during the
entire term of this Agreement.
2. EXECUTIVE'S DUTIES.
------------------
A. GENERALLY. Executive will take responsibility for his duties as OrCAD's
Chief Executive Officer (the "CEO") assigns them from time to time. Executive
will serve in the capacity of Vice President of Product Development, and all
assigned duties will be commensurate with that position. Executive's working
environment shall in all respects be of at least a like grade and quality as
that of OrCAD's other senior executive officers. Executive will perform his
duties with full application of Executive's professional talents and skills,
using the best judgment Executive can bring to bear.
B. GOALS. Executive will use his best efforts to achieve the goals
contained in the Compensation Plan and Goals attached hereto as Exhibit A.
3. COMPENSATION.
------------
A. PAY. OrCAD will pay Executive initially as described in Exhibit A.
Exhibit A may be amended from time to time, by notice to Executive, but only if
and to the extent the change increases Executive's compensation.
B. STOCK OPTIONS. Upon Executive's commencement of employment pursuant
to this Agreement, OrCAD will grant Executive incentive stock options to
purchase 40,000 shares of
OrCAD common stock at 100% of then-current fair market value, in accordance with
the terms and conditions contained in OrCAD's 1995 Stock Incentive Plan and
subject to OrCAD's standard vesting schedule.
C. BENEFITS. OrCAD will also make available the benefits described in
Exhibit A, which benefits may change from time to time if and to the extent such
changes comparably affect all OrCAD senior executive officers.
4. TERMINATION.
-----------
A. VOLUNTARY. Executive may voluntarily resign from OrCAD upon giving
OrCAD thirty (30) days' advance written notice of Executive's intent to resign.
In the event that Executive resigns at the request of OrCAD's Board of Directors
(the "BOARD") or the CEO, such resignation shall not be treated as a voluntary
resignation by Executive but shall instead be treated as a termination by OrCAD.
B. WITHOUT CAUSE. OrCAD may terminate this Agreement and Executive's
employment without Cause (as defined below) upon giving Executive thirty (30)
days' advance written notice.
C. FOR CAUSE. OrCAD may terminate this Agreement and Executive's
employment immediately upon written notice at any time for Cause. For purposes
of this Agreement, "CAUSE" means any one of the following events:
(1) Executive's repeated and willful failure or refusal to comply
with the reasonable policies, standards or regulations from time to time
established in writing by OrCAD and previously delivered to Executive;
(2) Executive's engaging in criminal conduct or other fundamentally
improper conduct with respect to OrCAD that is dishonest, fraudulent or
materially detrimental to the reputation, character or standing of OrCAD;
(3) Executive's misappropriation of OrCAD monies or assets; or
(4) Executive's repeated and willful failure to perform duties
properly assigned to him by the Board or the CEO, or to abide by the terms
of this Agreement.
D. DEATH. This Agreement shall automatically terminate upon the death of
Executive.
E. DISABILITY. This Agreement and Executive's employment shall terminate
upon the effective date of notice sent to Executive stating the Board's
determination, made in good faith and after consultation with a physician
selected by the Board, that: (i) Executive is incapable of performing the
essential functions of his position under this Agreement, with reasonable
accommodation, because of a physical or mental incapacity; (ii) the incapacity
has prevented Executive from performing such functions for a period of one
hundred twenty (120) days in a rolling twelve (12) month period or ninety (90)
consecutive calendar days; and (iii) such incapacity is likely to continue for a
least another ninety (90) days in a twelve (12) month period.
2
If and when Executive's incapacity substantially impacts his job performance or
attendance, OrCAD may require Executive to undergo a physical examination
reasonably designed to determine his ability to work.
F. COMPENSATION ON TERMINATION. Upon termination of Executive by OrCAD
without Cause prior to the Expiration Date, and in consideration of the
covenants that survive termination of this Agreement, OrCAD will: (i) pay
Executive's base salary as earned through the termination date, subject to
applicability tax withholding; and (ii) continue at OrCAD's expense Executive's
health, life, and disability insurance for one (1) year after the termination
date; and (iii) pay Executive a lump-sum severance at the time of termination in
an amount equal to one (1) year's base salary, subject to applicable tax
withholding. Upon termination for Cause, termination due to disability, or
Executive's death, OrCAD will pay Executive's base salary earned through the
termination date, subject to applicable tax withholding. Upon Executive's
voluntary resignation, death, disability, or termination for Cause by OrCAD,
Executive is not entitled to severance pay.
5. CONFIDENTIALITY.
---------------
A. CONFIDENTIALITY OF ORCAD DATA. During Executive's employment with
OrCAD and for two (2) years after termination, Executive will keep OrCAD Data,
as that term is defined below, confidential. Executive will not disclose OrCAD
Data directly or indirectly to any person, other than to an employee of OrCAD or
a person or entity to which disclosure is reasonably necessary or appropriate to
further OrCAD's business. "ORCAD DATA" includes, without limitation, any trade
secret or proprietary or confidential information of OrCAD or of any OrCAD
affiliate, including all confidential records, files, memoranda, reports, price
lists, software, customer lists, drawings, sketches or documents.
B. CONFIDENTIALITY OF THIRD PARTY DATA. Executive will also keep Third
Party Data, as that term is defined below, confidential during Executive's
employment with OrCAD and for two (2) years after termination or as long as is
required by any agreement OrCAD enters into with the third party and which is
provided to Executive, whichever period is longer. Executive will not disclose
Third Party Data in violation of any such agreement with the third party. "THIRD
PARTY DATA" means data obtained by Executive in the course of his employment
with OrCAD from a third party, including without limitation suppliers and
customers, which data is considered by the third party to be proprietary or
confidential.
C. RETURN ON TERMINATION. All OrCAD Data is the property of OrCAD.
Executive will return to OrCAD all OrCAD Data and Third Party Data upon
termination of this Agreement.
6. OWNERSHIP OF INVENTIONS.
-----------------------
A. DEFINITIONS. "INVENTIONS" means ideas, improvements, designs,
discoveries or authored works (whether software or other form), whether or not
patentable or copyrightable, as well as other newly discovered or newly applied
information or concepts. An Invention is a "COVERED INVENTION" if it relates to
OrCAD's actual or anticipated business; or was developed in any part using OrCAD
resources (time, supplies, facilities or data); or if it results from or is
suggested by a task assigned to, or work performed for OrCAD by, Executive. As
used in this
3
Section 6, "ORCAD" includes OrCAD and its affiliates, including OrCAD's clients
or its respective consultants and contractors.
B. ASSIGNMENT. All Executive's right, title and interest in and to any
Covered Inventions that Executive makes or conceives while employed by OrCAD,
belong to OrCAD. This Agreement operates as a prospective assignment of all
those rights to OrCAD. Executive agrees to execute such documents as may be
necessary to perfect this assignment upon request by OrCAD.
C. OWNERSHIP. All records, files, memoranda, reports, price lists,
software, customer lists, drawings, sketches, documents, equipment and the like,
relating to the business of OrCAD or its affiliates which Executive shall have
use of, prepare, or come into contact with in the course of his work for OrCAD
("ORCAD PROPERTY") shall remain the sole and exclusive property of OrCAD.
Executive will return to OrCAD all OrCAD Property upon termination of his
employment with OrCAD.
7. NON-COMPETITION.
---------------
A. COMMITMENT. During Executive's employment with OrCAD, Executive
will not Compete, as that term is defined below, with OrCAD or its affiliates.
(1) "COMPETE" means directly or indirectly:
(i) to have any financial interest in (except for stock
ownership as permitted in subparagraph (ii) below);
(ii) to join, operate, control or participate in, as an officer,
director, employee, agent, independent contractor, partner,
shareholder (except as holder of not more than five percent (5%) of
the outstanding stock of any class of a corporation, the stock of
which is actively publicly traded") or principal with;
(iii) to provide services in any capacity to those participating
in the ownership, management, operation or control of; or
(iv) to act as a consultant or subcontractor to:
any corporation, proprietorship, association or other entity or person engaged
in the sale or production of products or the rendering of services of a kind
similar to or competitive with any products produced or developed or under
active consideration by, or services provided by or under active consideration
by, OrCAD or its affiliates.
8. NON-SOLICITATION.
----------------
A. COMMITMENT. During Executive's employment with OrCAD, and for one (1)
year after termination of such employment, Executive will not "SOLICIT BUSINESS"
as that term is defined below.
4
B. SOLICIT BUSINESS DEFINED. "SOLICIT BUSINESS" means contacting or
dealing with an OrCAD Customer, as that term is defined below, for purposes of
seeking employment, or providing goods or services of a kind similar to or
competitive with any products produced or developed or under consideration by,
OrCAD or its affiliates, or providing knowledge or assistance to another for any
of those purposes.
C. ORCAD CUSTOMERS DEFINED. "ORCAD CUSTOMERS" include Existing Customers
and Prospective Customers, as those terms are defined below:
(1) "EXISTING CUSTOMERS" means entities or individuals who have
purchased consulting or programming services, software, or products from
OrCAD or its affiliates at any time within three (3) years before the date
Executive's employment with OrCAD terminates.
(2) "PROSPECTIVE CUSTOMERS" means entities or individuals upon whom
more than three (3) calls have been made in any one-month period by OrCAD
or its affiliates or to whom a proposal has been submitted or by whom a
proposal has been requested by OrCAD or its affiliates, and from whom OrCAD
or any of its affiliates reasonably believes it may secure work or product
or service orders.
D. NON-SOLICITATION OF ORCAD EMPLOYEES. During Executive's employment
with OrCAD, and for one (1) year after termination of such employment, unless
OrCAD consents in writing, Executive will not directly or indirectly (i) solicit
for hire the services of any then current employee of OrCAD or its affiliates or
any person who has voluntarily or for Cause left the employ of OrCAD or its
affiliates within three (3) months prior to the termination of Executive's
employment with OrCAD, or (ii) solicit or in any manner attempt to induce any
such person to leave the employ of OrCAD or its affiliates, or (iii) aid others
in performing the actions referred to in either clause (i) or (ii) of this
Section 8(D).
9. OTHER MATTERS.
-------------
A. NOTICE. Notice to Executive shall be sent to Executive's most recent
address shown in OrCAD's personnel records. Notice to OrCAD shall be sent to
OrCAD's headquarters address, marked "Attention: CEO." Either party may change
its address by written notice. Notice shall be effective when the person to whom
it is sent actually receives it, if sent by any method that leaves a paper or
electronic record in the hands of the recipient. If sent certified or registered
mail, postage prepaid, return receipt requested, to the proper address this
Section 9(A) defines, notice shall be considered effective, whether or not
actually received, on the date the return receipt shows the notice was accepted,
refused, or returned undeliverable.
B. SEVERABILITY. Each clause of this Agreement is severable. If
any clause is ruled void or unenforceable, the balance of the Agreement shall
nonetheless remain in effect.
C. NON-WAIVER. A waiver of one or more breaches of any clause of this
Agreement shall not act to waive any other breach, whether of the same or
different clauses.
5
D. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of OrCAD, and shall be binding upon Executive, and Executive's
administrators, executors, legatees and heirs. This Agreement shall not be
assigned by Executive.
E. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of California.
F. JURISDICTION. Employee acknowledges that he has substantial contacts
with California and the Parties agree that litigation, if any, may be brought
only in the state or federal courts located in Orange County or Los Angeles
County in California and in no other place unless the parties expressly agree in
writing to waive this requirement. Each Party consents to jurisdiction in
California.
G. INJUNCTIVE RELIEF. As violation of the obligations of Sections 5, 6,
7 and 8 of this Agreement would result in damage to OrCAD that could not be
cured by an award of money alone, OrCAD shall be entitled to injunctive relief
in cases where a violation of those obligations is shown. This remedy shall be
in addition to any other remedies available at law or in equity.
H. ATTORNEYS' FEES. The prevailing party in any suit, action,
arbitration or appeal filed or held concerning this Agreement shall be entitled
to reasonable attorneys' fees and disbursements and the actual, reasonably
necessary costs of the proceeding.
I. INTEGRATION. This Agreement is the complete agreement between the
Parties regarding the subject matter hereof. The parties expressly agree that it
constitutes the agreement that was and is in force between them as of the date
of this Agreement. It supersedes all prior agreements, written or oral. It may
be modified only in writing signed by the original Parties hereto, or by their
successors or superiors in office.
J. SURVIVAL. The obligations of Sections 5, 6, 7 and 8 of this Agreement
shall survive termination of this Agreement.
6
IN WITNESS WHEREOF, OrCAD has caused this Agreement to be signed by its
duly authorized representative, and Executive has hereunder set his name as of
the date of this Agreement.
MICHAEL WIMBROW ORCAD, INC.
By: By:
---------------------------- ----------------------------
Michael Wimbrow Michael F. Bosworth
President and Chief
Executive Officer
EXHIBIT:
A: Compensation Plan
7
EXHIBIT A
COMPENSATION PLAN AND RESPONSIBILITIES
AS OF COMMENCEMENT OF EMPLOYMENT
EXECUTIVE: MICHAEL WIMBROW
1. INITIAL ASSIGNMENT: Mr. Wimbrow will serve in the capacity of Vice
President of Product Development. Mr. Wimbrow will report directly to the
CEO.
2. RESPONSIBILITIES: Mr. Wimbrow will be responsible for OrCAD's software
development and work closely with the Chief Technical Advisor and Vice
President of Marketing. Mr. Wimbrow's office shall be in Orange County,
California.
3. PAY: OrCAD will pay Mr. Wimbrow initially total annual compensation
of $165,000, payable as follows:
BASE SALARY: OrCAD will pay Mr. Wimbrow an annual base salary of
$150,000, payable at the rate of $12,500 per month, less applicable
tax withholding.
INCENTIVE COMPENSATION: Mr. Wimbrow will be eligible to receive
additional annual compensation of up to $15,000, under the terms and
conditions of OrCAD's Incentive Compensation Plan applicable to other
senior executive officers.
4. BENEFITS: Mr. Wimbrow will be eligible for the same benefits available to
other OrCAD senior executive officers, which include: group medical,
dental, vision, prescription drug, short term and long term disability,
401(k) plan, a smoke free work environment, $50,000 life insurance policy,
flex hours, educational assistance, family leave, nine holiday days per
year, four weeks paid sabbatical leave, three additional sick days per year
and three weeks vacation initially with four weeks after three years
service.
5. STOCK OPTIONS: OrCAD will grant to Mr. Wimbrow an incentive stock option
to purchase 40,000 shares of OrCAD's common stock, under the terms and
conditions of OrCAD's 1995 Stock Incentive Plan and subject to OrCAD's
standard vesting schedule.
MICHAEL WIMBROW ORCAD, INC.
By: By:
----------------------------- -----------------------------
Michael Wimbrow Michael F. Bosworth
President and Chief
Executive Officer
Date: Date:
--------------------------- ---------------------------