Attached files
file | filename |
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EX-21 - SUBSIDIARIES OF THE REGISTRANT - AVID TECHNOLOGY, INC. | exhibit_21.htm |
EX-3.3 - AMENDED AND RESTATED BY-LAWS, AS AMENDED - AVID TECHNOLOGY, INC. | exhibit_3-3.htm |
EX-31.1 - CEO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-1.htm |
EX-10.8 - SECOND AND RESTATED 1996 ESPP, AS AMENDED - AVID TECHNOLOGY, INC. | exhibit_10-8.htm |
EX-23.1 - CONSENT OF ERNST & YOUNG LLP - AVID TECHNOLOGY, INC. | exhibit_23-1.htm |
EX-31.2 - CFO SECTION 302 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_31-2.htm |
EX-32.1 - CEO & CFO SECTION 906 CERTIFICATION - AVID TECHNOLOGY, INC. | exhibit_32-1.htm |
EX-10.37 - FORM OF EXECUTIVE OFFICER EMPLOYMENT AGREEMENT - AVID TECHNOLOGY, INC. | exhibit_10-37.htm |
10-K - FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 2009 - AVID TECHNOLOGY, INC. | f10k_123109.htm |
EXHIBIT 10.36
May 29,
2008
Mr.
Martin Vann
84 Beard
Way
Needham,
MA 02492
Dear
Martin:
We are
excited with the prospect of you joining the Avid leadership
team. Over the past several weeks of meetings, we have become
convinced that your experience and leadership will be very helpful in the
evolution and growth of Avid Technology, Inc. Accordingly, we are pleased to
offer you the position of Vice President of Sales reporting to Kirk Arnold,
Executive Vice President and General Manager, Avid Video.
Salary
Your
salary will be paid biweekly at an annual rate of three hundred thirty thousand
dollars ($330,000). The initial pay period will be calculated based
upon actual days worked.
Company
Bonus Plan
You will
be eligible to participate in Avid’s Company Bonus Plan. Your
budgeted bonus level is 35% of your eligible earnings, with potential payouts
ranging from 0% to greater than 35% based on the achievement of pre-determined
financial goals for the Company and your business unit, and your personal
performance. The Plan results and payments will be determined
following the Plan year after audited financials have been completed and
announced.
Sign-on
Bonus
You will
receive a one-time sign-on bonus in the amount of thirty thousand dollars,
($30,000) to be paid out in the next regularly scheduled payroll cycle following
your date of hire and subject to applicable withholding taxes.
Sales
Commissions
You will
be eligible to participate in Avid’s Sales Compensation Plan . Your
annual target commission for 2008 will be one hundred seventy thousand dollars
($170,000 annualized) for on plan performance, and is based upon revenue and
margin quotas that will be determined between you and me. Your
revenue and margin quotas and sales compensation target will be pro-rated for
2008 based on your hire date. Commissions are paid at the end of the
quarter following the quarter in which commissions were earned.
For the
first two months of a quarter a draw of 75% of the quarterly variable amount at
target will be paid. On the first month of the quarter following the
quarter in which the draw has been paid, the two month draw will be recovered
and the final quarterly payout will be calculated. If for any reason a
draw is not fully recovered in a current quarter the balance due Avid will be
recovered before any additional draw is extended to the employee. Any draw paid
is recoverable against any present or future earned commissions.
Stock
Option Grant
In
addition, you will be issued, subject to approval by Avid’s Board of Directors
in accordance with Avid’s stock option grant process, an option to purchase one
hundred thousand (100,000) shares of Avid’s common stock. The terms
of the vesting of the stock option are described on Attachment
A.
Restricted
Stock Units
You will
also be issued, subject to approval by Avid’s Board of Directors, fifteen
thousand (15,000) restricted stock units (RSUs), with each unit representing the
right to receive one share of Avid’s common stock. The terms of the
vesting of the RSUs are described on Attachment
A.
During
your employment, in addition to the initial stock option and RSU grant, you
shall be entitled to participate in Avid’s stock incentive plans to the extent
and in the manner as determined by Avid in its absolute discretion.
Termination
The terms
of termination are described on Attachment
B.
Benefits
Avid
offers four weeks of paid vacation to Vice Presidents and ten paid holidays per
year. The Company contributes 75% of the costs for medical, dental
and vision coverage, and 100% of the costs for life insurance (in the amount of
two times your annual salary), long-term and short-term disability
insurance. Additionally, you will be eligible to participate in
Avid’s 401(k) Plan the first of the month following three months of
service. A benefits summary is enclosed. You will receive
further documentation on Avid’s benefits programs upon formal acceptance of this
employment offer.
Offer
Acceptance
We look
forward to welcoming you into your new position with Avid. Please
return one signed offer letter, indicating your acceptance and anticipated start
date. A postage paid envelope is enclosed for your
convenience.
New
Hire Benefits Orientation
The
enclosed Benefits Orientation Kit will be reviewed and processed with you upon
your arrival by Karen Katz, our Human Resources Generalist. It will
be quite helpful if you are able to review the package and complete the
appropriate enrollment and employment forms prior to your meeting with
Karen. She can be reached in advance at (978) 640-5009 with any
questions.
Onboarding/Induction
Upon
acceptance we’ll work with you to ensure a smooth and productive entry to Avid
though our On boarding/Induction program. We will initiate an
information exchange prior to your first day in the office.
This
offer is subject to our satisfactory review of all of your prior employment
agreements for "non-compete" clauses under which you may be restricted in
working for Avid and upon your furnishing proof that you are authorized for
employment in the U.S.A.
All Avid
employees are required to sign an Avid Invention and Non-Disclosure
Agreement (a copy of which is included herein) and Avid’s Code of Business
Conduct and Ethics upon acceptance and/or commencement of
employment. Certain classifications of employees are also required to
recertify the Code of Business Conduct and Ethics on an annual
basis. You will also be required to complete an Immigration
Department I-9 form for which you will need to bring certain documentation with
you to Avid. These forms will be included in your personalized
Orientation Kit.
Acceptance
of this offer does not constitute an employment agreement and this letter is not
to be construed as a guarantee of employment by the Company for any specific
period or length of time.
All of us
at Avid look forward to welcoming you, Martin, and are confident of your
potential as a valued and respected member of our organization. If
you have any questions regarding the position, please do not hesitate to contact
me.
Sincerely,
/s/ Maria
Haddad
Maria
Haddad
Director,
Human Resources, Avid Video
/ebw
Enclosures
ACCEPTED:
/s/ Martin
Vann DATE: June
28, 2008
ORIENTATION
START
DATE: * July 13,
2008 DATE:
______________________
* Please
return your completed "Employee Record Form" and one signed offer letter in the
self-addressed envelope no later than June 25, 2008
Cc: Human
Resources
Attachment A: Equity
Grants
Option
Grant. Subject to approval by the Board of Directors, on your start
date you will be awarded, pursuant to a stock option agreement, an option to
purchase One Hundred Thousand (100,000) shares of Avid Technology, Inc. common
stock. The exercise price will be the closing price on the date of
the grant.
a) Fifty
Thousand (50,000) shares of the option will vest on a time-based schedule in
equal 6.25% increments every three months ending on the fourth anniversary of
the grant date.
b) Fifty
Thousand (50,000) shares of the option will vest on a performance-based
schedule, as follows:
(1) Twenty
Five Thousand (25,000) shares of the option will vest at the end of the first 20
consecutive trading day period following your start date during which Avid’s
common stock, as quoted on NASDAQ, trades (without regard to the closing price)
at a price per share of at least $50.84, as adjusted for stock splits and stock
dividends; and
(2) An
additional Twenty Five Thousand (25,000) shares of the option will vest at the
end of the first 20 consecutive trading day period following the Effective Date
during which Avid’s common stock, as quoted on NASDAQ, trades (without regard to
the closing price) at a price per share of at least $76.26, as adjusted for
stock splits and stock dividends.
RSU
Grant. On your start date, subject to approval by the Board of
Directors and pursuant to a restricted stock unit agreement, you will be granted
Fifteen Thousand (15,000) restricted stock units, with each unit representing
the right to receive one share of Avid’s common stock, said restricted stock
units to vest as follows:
Vesting
Date
|
Cumulative
% Vested
|
July
14, 2009
|
33.33%
|
July
14, 2010
|
66.67%
|
July
14, 2011
|
75.00%
|
October
14, 2011
|
81.25%
|
January
14, 2012
|
87.50%
|
April
14, 2012
|
93.75%
|
July
14, 2012
|
100.00%
|
Attachment B:
Termination
In this
Attachment, you are referred to as the “Employee,” Avid is referred to as the
“Company,” and the date on which your employment begins is referred to as the
“Effective Date.”
1.1. Termination. Employee’s
employment shall terminate upon the occurrence of any of the following
events:
1.1.1. immediately
upon the Employee’s death;
1.1.2. termination
of the Employee’s employment by the Company for Disability (as defined below),
effective immediately upon delivery of notice thereof;
1.1.3. termination
of Employee’s employment by the Company for Cause (as defined below), effective
immediately upon delivery of notice thereof;
1.1.4. termination
of Employee’s employment by the Company, without Cause and not as a result of
Employee’s death or Disability, effective 30 days after the Company delivers
written notice thereof to the Employee;
1.1.5. termination
of Employee’s employment by Employee without Good Reason (as defined below)
effective 30 days after Employee delivers written notice thereof from
Employee to the Company; or
1.1.6. termination
of Employee’s employment by Employee with Good Reason (as defined below), to be
effective as set forth below.
1.2. For
purposes of this Attachment, the following definitions shall apply:
1.2.1. “Cause”
shall mean (i) Employee’s material failure to perform (other than by reason
of death or illness or other physical or mental incapacity) his duties which is
not remedied after 30 days’ written notice from the Company (if such failure is
susceptible to cure), (ii) a material breach of any of the provisions of
any written agreement (including the Company’s employee nondisclosure and
invention assignment agreement) between Employee and the Company, which is not
cured after 10 days’ written notice from the Company (if such breach is
susceptible to cure), (iii) Employee’s material violation of a material
Company policy (for purposes of this clause, the Company’s Code of Business
Conduct and Ethics shall be deemed a material policy), which is not cured after
10 days’ written notice from the Company (if such violation is susceptible
to cure), (iv) fraud, embezzlement or other material dishonesty with
respect to the Company, (v) conviction of a crime constituting a felony
(which shall not include any crime or offense related to traffic infractions or
as a result of vicarious liability) or conviction of any other crime involving
fraud, dishonesty or moral turpitude or (vi) failing to cooperate, as reasonably
requested by the Company, in any internal or external investigation of any
matter in which the Company has a material interest in the outcome of the
investigation.
1.2.2. “Change-in-Control
of the Company” shall be deemed to have occurred only if any of the following
events occur:
a) The
acquisition by an individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the then outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to vote generally
in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this section, the following acquisitions
shall not constitute a Change of Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company, or
(D) any acquisition pursuant to a transaction which satisfies the criteria
set forth in clauses (A) and (B) of Section 1.2.2(c); or
b) Individuals
who, as of the Effective Date, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a director subsequent to the
Effective Date whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the directors
then composing the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
c) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the operating assets of the Company (a “Business
Combination”), in each case, unless, following such Business Combination,
(A) all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 40% of,
respectively, the then-outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation), and the combined
voting power of the then-outstanding voting securities of the corporation or
other entity resulting from such Business Combination (which as used in this
section shall include, without limitation, a corporation or other entity which
as a result of such transaction owns all or substantially all of the Company’s
assets
either directly or through one or more subsidiaries) in substantially the same
proportions as their ownership immediately prior to such Business Combination of
the Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, and (B) no Person (excluding any corporation or other
entity resulting from such Business Combination or any employee benefit plan (or
related trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 30% or more of,
respectively, the then outstanding shares of common stock (or other equity
interests, in the case of an entity other than a corporation) of the corporation
or other entity resulting from such Business Combination, or the combined voting
power of the then-outstanding voting securities of such corporation or other
entity;
provided,
however, that as used in Section 1.6, a “Change-in-Control of the Company” shall
be deemed to occur only if any of the foregoing events occur and such event that
occurs is a “change in the ownership or effective control of a corporation, or a
change in the ownership of a substantial portion of the assets of a corporation”
as defined in Treasury Reg. § 1.409A-3(i)(5).
1.2.3. “Date of
Termination” shall mean the date of Employee’s “separation from service” with
the Company, as determined under Treasury Reg. § 1.409A-1(h).
1.2.4. “Disability”
shall mean Employee’s absence from the full-time performance of his duties with
the Company for more than 180 days during a 365-day period as a result of
incapacity due to mental or physical illness, as a result of which Employee is
deemed “disabled” by the institution appointed by the Company to administer its
long-term disability plan (or any successor plan).
1.2.5. “Good
Reason” shall mean the occurrence of any one or more of the following without
Employee’s prior express written consent: (i) a material diminution
in Employee’s authority, duties or responsibility from those in effect as of the
Effective Date; (ii) a diminution in Employee’s base salary as in effect on the
Effective Date or as may be increased from time to time, other than a reduction
which is part of an across-the board proportionate reduction in the salaries of
all senior executives of the Company imposed because the Company is experiencing
financial hardship (provided such reduction is not more than 20% and does not
continue for more than 12 months); (iii) a material change in Employee’s
office location (it being agreed that as of the Effective Date such office
location shall be deemed to be Tewksbury, Massachusetts); and (iv) any material
breach of this letter by the Company; provided, however, that a termination for
Good Reason by Employee can occur only if (a) Employee has given the Company a
notice of the existence of a condition giving rise to Good Reason within 90 days
after the initial occurrence of the condition giving rise to Good Reason and (b)
the Company has not cured the condition giving rise to Good Reason within
30 days after receipt of such notice. A termination for Good
Reason shall occur 30 days after the end of such 30-day cure
period.
1.2.6. A
“Potential Change-in-Control Period” shall be deemed to exist (A) commencing
upon the date on which the Company shall have announced that it has entered into
a merger, acquisition or similar agreement, the consummation of which would
result in the occurrence of a Change-in-Control of the Company and ending on the
earlier of (x) the date on which the transaction governed by such agreement has
been consummated or (y) the Company shall have announced that it has terminated
such agreement, or (B) commencing on the date on which any Person shall publicly
announce an intention to take actions which if consummated would constitute a
Change-in-Control of the Company and ending on the earlier of (x) the date on
which such actions have caused the consummation of a Change-in-Control of the
Company or (y) such Person shall publicly announce the termination of its
intentions to take such actions.
1.2.7. “Pro
Ration Percentage” shall mean the amount, expressed as a percentage, equal to
the number of days in the then current fiscal year through the Date of
Termination, divided by 365.
1.2.8. “Termination
Bonus Amount” shall mean the greater of (i) the Employee’s highest annual
incentive bonus earned in the two most recent full fiscal years preceding the
Date of Termination plus the Employee’s highest commissions (calendar year
total) earned in the two most recent full fiscal years preceding the date of
termination, or (ii) One Hundred percent (100%) of Employee’s base salary
in effect as of the Date of Termination.
1.3. Adjustments Upon
Termination.
1.3.1. Death or
Disability. If during the Term, Employee’s employment with the
Company terminates pursuant to Section 1.1.1 or Section 1.1.2, subject to
Section 1.5, the Company shall pay to Employee or Employee’s heirs, successors
or legal representatives, as the case may be, Employee’s base salary in effect
as of the Date of Termination (less, in the case of a termination of
employment as a result of Disability, the amount of any payments made to the
Employee under any long-term disability plan of the Company). Such
payments shall be made over the 12-month period that commences on the Date of
Termination; provided that if termination of employment due to death or
Disability occurs after a Change-in-Control of the Company, the total of such
payments shall be made in a lump sum within 30 days following the Date of
Termination. Notwithstanding any provision to the contrary in any
Avid stock plan, or under the terms of any grant, award agreement or form for
exercising any right under any such plan (including, without limitation, the
agreements evidencing the stock option and the restricted stock unit grant), any
stock options, restricted stock awards, stock appreciation rights or other
equity participation rights held by Employee as of the date of death or
Disability shall become exercisable or vested, as the case may be, with respect
to all time-based awards as to an additional number of shares equal to the
number that would have been exercisable or vested as of the end of the 12-month
period immediately following the date of death or Disability, but all
performance-based vesting awards that have not vested as of such date of death
or Disability shall be forfeited as of such date.
1.3.2. With Cause or Without Good
Reason. If Employee’s employment with the Company terminates
pursuant to Section 1.1.3 or Section 1.1.5, (a) all payments and
benefits provided to Employee under this letter shall cease as of the Date of
Termination, except that Employee shall be entitled to any amounts earned,
accrued or owing but not yet paid under this letter and any benefits due in
accordance with the terms of any applicable benefits plans and programs of the
Company and (b) all vesting of all stock options, restricted stock awards,
stock appreciation rights or other equity participation rights then held by the
Employee shall immediately cease as of the Date of
Termination.
1.3.3. Without Cause or with Good
Reason Other than during a Potential Change-in-Control Period or After a
Change-in-Control of the Company. If Employee’s employment
with the Company terminates pursuant to Section 1.1.4 or Section 1.1.6,
other than during a Potential Change-in-Control period or within 12 months after
a Change-in-Control of the Company, subject to Section 1.5:
a) within 30
days following the Date of Termination, the Company shall pay Employee in a lump
sum in cash the sum of (i) any accrued but unpaid base salary through the Date
of Termination plus (ii) the annual incentive bonus for the fiscal year
preceding the fiscal year in which the Date of Termination occurs, if earned and
unpaid, plus (iii) any accrued but unused vacation pay;
b) the
Company shall pay Employee, as severance pay, his base salary in effect as of
the Date of Termination, for 12 months after the Date of Termination (the
“Severance Pay Period”);
c) the
annual incentive bonus for the year in which the Date of Termination occurred,
in the amount of Employee’s target award multiplied by the applicable actual
plan payout factor and pro rated by the number of months Employee was employed
by the Company during the year of the Date of Termination; provided, however
that such annual incentive bonus will be paid only if the Company pays bonuses,
on account of the year in which the Date of Termination occurred, to executives
who remain employed with the Company and will be paid in a lump sum on or about
the date on which the Company pays bonuses to executives who remain employed
with the Company;
d) the
Company shall continue to provide Employee health, dental and vision benefits as
were available to the Employee prior to the Date of Termination until the
earlier of (x) the end of the Severance Pay Period or (y) the date on which
Employee becomes eligible to receive group medical and dental insurance benefits
from another employer that are substantially equivalent to those provided by the
Company as of the Date of Termination (Employee agrees to notify the Company in
writing promptly upon becoming eligible to receive such group medical and dental
insurance from another employer);
e) the
Company shall provide Employee, at the Company’s sole cost, with full executive
outplacement assistance with an agency selected by Employee (and reasonably
satisfactory to the Company), provided that no outplacement benefits shall be
provided after the end of the second calendar year following the calendar year
in which the Date of Termination occurs;
f) notwithstanding
any provision to the contrary in any Company stock plan, or under the terms of
any grant, award agreement or form for exercising any right under any such plan
(including, without limitation, the agreements evidencing the stock option and
the restricted stock unit grant), any stock options, restricted stock awards,
stock appreciation rights or other equity participation rights held by Employee
as of the Date of Termination become exercisable or vested, as the case may be,
with respect to all time-based vesting awards as to an additional number of
shares equal to the number that would have been exercisable or vested as of the
end of the 12-month period immediately following the Date of Termination, but
all performance-based vesting awards that have not vested as of the Date of
Termination shall be forfeited as of such date; and
g) Employee
shall be entitled to exercise any such options or other awards or equity
participation rights until 12 months after the Date of Termination, but all
performance-based vesting awards that have not, as of such date, vested shall be
forfeited as of such date. No other payments or benefits shall be due
under this letter to Employee, but Employee shall be entitled to any benefits
accrued or earned in accordance with the terms of any applicable benefit plans
and programs of the Company.
1.3.4. Without Cause or with Good
Reason After a Change-in-Control of the Company. If, within 12
months after a Change-in-Control of the Company, Employee shall terminate
Employee’s employment pursuant to Section 1.1.6 or the Company shall terminate
Employee’s employment pursuant to Section 1.1.4, then in any such event, subject
to Section 1.5:
a) The
Company shall pay Employee as severance pay (without regard to the provisions of
any benefit plan) in a lump sum in cash no more than 30 days following the
Date of Termination, the following amounts:
|
(i)
|
the
sum of (A) Employee’s accrued but unpaid base salary through the Date
of Termination, plus (B) the annual incentive bonus for the fiscal
year preceding the fiscal year in which the Date of Termination occurs, if
earned and unpaid, (C) the product of (x) Employee’s Termination
Bonus Amount, and (y) the Pro Ration Percentage, plus (D) any
accrued but unused vacation pay;
and
|
|
(ii)
|
the
amount equal to one and a half (1.5) times the sum of (i) Employee’s
base salary in effect as of the Date of Termination, plus
(ii) Employee’s Termination Bonus
Amount.
|
b) if
Employee is eligible to receive and elects to continue receiving any group
medical and dental insurance coverage under COBRA, the Company shall reimburse
the monthly COBRA premium (on a fully grossed up basis, if such reimbursement is
taxable to Employee) in an amount equal to the portion of such premium that the
Company pays on behalf of active and similarly situated employees receiving the
same type of coverage until the earlier of (x) the date that is 18 months after
the Date of Termination or (y) the date on which Employee becomes eligible to
receive group medical and dental insurance benefits from another employer that
are substantially equivalent (including, without limitation, equivalent as to
benefits, premiums and co-pay amounts) to those provided by the Company as of
the Date of Termination (Employee agrees to notify the Company in writing
promptly upon becoming eligible to receive such group medical and dental
insurance from another employer);
c) Notwithstanding
anything to the contrary in the applicable stock option or restricted stock unit
agreement (including, without limitation, the agreements evidencing Employee’s
stock option and restricted stock unit grant), the exercisability of all
outstanding stock options, restricted stock awards, stock appreciation rights
and other equity participation rights (including the right to receive restricted
stock pursuant to the restricted stock unit grant or other instrument) then held
by Employee with respect to the common stock of the Company (or securities
exchanged for such common stock in connection with the Change-in-Control of the
Company) shall accelerate in full and Employee shall be entitled to exercise any
such options or other awards or equity appreciation rights until 18 months
after the Date of Termination; and
d) The
Company shall provide Employee, at the Company’s sole cost, with full executive
outplacement assistance with an agency selected by Employee (and reasonably
satisfactory to the Company), provided that no outplacement benefits shall be
provided after the end of the second calendar year following the calendar year
in which Date of Termination occurs.
1.3.5. Without Cause or with Good
Reason During a Potential Change-in-Control Period. If, during
the existence of a Potential Change-in-Control Period, Employee shall terminate
Employee’s employment pursuant to Section 1.1.6 or the Company shall terminate
Employee’s employment pursuant to Section 1.1.4, then in any such event, subject
to Section 1.5, Employee shall receive the payments, benefits and rights set
forth in Section 1.3.4, except that any amounts payable pursuant to Section
1.3.4(a)(ii) shall be paid over the 18-month period that commences on the Date
of Termination, if such date occurs more than 30 days prior to the
Change-in-Control of the Company that is the subject of the Potential
Change-in-Control Period;
1.3.6. otherwise,
such amount shall be paid in a lump sum on the date that such Change-in-Control
of the Company occurs. Notwithstanding the foregoing, if the
Change-in-Control of the Company (that is the subject of the Potential
Change-in-Control Period) occurs more than 30 days after the Date of
Termination, and payments of the amount payable pursuant to Section 1.3.4(a)(ii)
have begun over an 18-month period, pursuant to the preceding sentence, the
balance of the amount payable pursuant to Section 1.3.4(a)(ii) shall be paid to
Employee in a lump sum on the date such Change-in-Control of the Company
occurs.
1.4. Section
409A.
1.4.1. Payments
to Employee under this Attachment shall be bifurcated into two portions,
consisting of a portion that does not constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Internal Revenue Code
of1986, as amended (the “Code”), and a portion that does constitute nonqualified
deferred compensation. Payments hereunder shall first be made from
the portion, if any, that does not consist of nonqualified deferred compensation
until it is exhausted and then shall be made from the portion that does
constitute nonqualified deferred compensation. However, if Employee
is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code, to
the extent required by Section 409A of the Code, the commencement of the
delivery of any such payments that constitute nonqualified deferred compensation
will be delayed to the date that is six months and one day after Employee’s Date
of Termination (the “Earliest Payment Date”). Any payments that are
delayed pursuant to the preceding sentence shall be paid on the Earliest Payment
Date. The determination of whether, and the extent to which, any of
the payments to be made to Employee hereunder are nonqualified deferred
compensation shall be made after the application of all applicable exclusions
under Treasury Reg. § 1.409A-1(b)(9). Any payments that are intended
to qualify for the exclusion for separation pay due to involuntary separation
from service set forth in Treasury Reg. § 1.409A-1(b)(9)(iii) must be paid no
later than the last day of the second taxable year of Employee following the
taxable year of Employee in which the Date of Termination occurs.
1.4.2. The
parties acknowledge and agree that the interpretation of Section 409A of the
Code and its application to the terms of this letter is uncertain and may be
subject to change as additional guidance and interpretations become
available. Anything to the contrary herein notwithstanding, all
benefits or payments provided by the Company to Employee that would be deemed to
constitute “nonqualified deferred compensation” within the meaning of
Section 409A of the Code are intended to comply with Section 409A of the
Code. If, however, any such benefit or payment is deemed to not
comply with Section 409A of the Code, the Company and Employee agree to
renegotiate in good faith any such benefit or payment (including, without
limitation, as to the timing of any severance payments payable hereof) so that
either (i) Section 409A of the Code will not apply or (ii) compliance with
Section 409A of the Code will be achieved; provided, however, that any deferral
of payments or other benefits shall be only for such time period as may be
required to comply with Section 409A; and provided, further, that
payments or other benefits that occur as a result of the application of this
section shall themselves comply with Section 409A of the Code.
1.5. General
Release. In order to be eligible to receive any of the salary
or benefits under this Attachment, Employee (or his personal representative, if
applicable) shall be required to execute and deliver to the Company (without
subsequent revocation) a general release of claims against the Company,
excluding any claims concerning the Company’s obligations under this letter in a
form provided by and reasonably satisfactory to the Company which shall contain
a release of claims by Employee substantially in the form attached hereto as
Attachment C,
and shall be required to sign such other agreements as similarly situated
employees of the Company are generally required to sign if Employee shall not
have already done so, provided, however, that such other agreements do not cause
any changes to the provisions herein or in any restricted stock, restricted
stock unit, stock option or similar compensatory or benefit agreement between
the Employee and the Company. The Company shall have no other
liability or obligation under this letter to Employee’s executors, legal
representatives, administrators, heirs or assigns or any other person claiming
under or through Employee.
1.6. Non-Competition and
Non-Solicitation. Employee acknowledges and recognizes the
highly competitive nature of the businesses of the Company and accordingly
agrees that while Employee is employed by the Company and for a period of the
longer of (a) one year after the date Employee’s employment with the Company
terminates, in the case of a termination other than within 12 months after a
Change-in-Control of the Company and(b) 18 months after the date Employee’s
employment with the Company terminates, in the case of a termination within 12
months after a Change-in-Control of the Company:
1.6.1. Employee
will not perform services for or own an interest in (except for investments of
not more than five percent (5%) of the total outstanding shares or other
equity interests of a company or entity that competes with Avid including but
not limited to Apple Computer, Inc., Adobe Systems, Inc., Thompson Grass Valley,
Harris Corporation, Autodesk, Inc., and Vizrt Ltd.
1.6.2. Employee
will not directly or indirectly assist others in engaging in any of the
activities in which Employee is prohibited to engage by
Section 1.6.1.
1.6.3. Employee
will not directly or indirectly either alone or in association with others (a)
solicit, or permit any organization directly or indirectly controlled by
Employee to solicit, any employee of the Company to leave the employ of the
Company, or (b) solicit for employment, hire or engage as an independent
contractor, or permit any organization directly or indirectly controlled by
Employee to solicit for employment, hire or engage as an independent contractor,
any natural person who was employed by the Company at any time; provided that
this Section 1.6.3 (i) shall not apply to the solicitation, hiring or engagement
of any individual whose employment with the Company has been terminated for a
period of one year or longer or whose engagement to the Company as an
independent contractor has been terminated for a period of six months or longer
and (ii) shall not apply to the solicitation, hiring or engagement of any
individual arising from such individual’s affirmative response to a general
recruitment effort carried out through a public solicitation or a general
solicitation.
1.6.4. Employee
will not directly or indirectly either alone or in association with others
solicit, or permit any organization directly or indirectly controlled by
Employee to solicit, any current or future customer or supplier of the Company
to cease doing business in whole or in part with the Company or otherwise
adversely modify his, her or its business relationship with the
Company.
1.6.5. This
Section 1.6 shall supersede any non-competition or non-solicitation provision
set forth in the Employee Nondisclosure and Invention Assignment Agreement
between the Employee and the Company
1.7. Reasonableness of
Restrictions. It is expressly understood and agreed
that (a) although Employee and the Company consider the restrictions
contained in Section 1.6 to be reasonable, if a final judicial determination is
made by a court of competent jurisdiction that the time or territory or any
other restriction contained in Section 1.6 is unenforceable, such restriction
shall not be rendered void but shall be deemed to be enforceable to such maximum
extent as such court may judicially determine or indicate to be enforceable and
(b) if any restriction contained in Section 1.6 is determined to be
unenforceable and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
1.8. Remedies for
Breach. Employee acknowledges and agrees that the Company’s
remedies at law for a breach or threatened breach of any of the provisions of
Section 1.6 would be inadequate and, in recognition of this fact, Employee
expressly agrees that, in the event of such a breach or threatened breach, in
addition to any remedies at law, the Company shall be entitled to obtain
equitable relief in the form of specific performance, temporary restraining
orders, temporary or permanent injunctions or any other equitable remedy which
may then be available.
Attachment
C
GENERAL RELEASE OF
CLAIMS
This General Release of Claims (the
“General Release”) is being executed by _______________ (“Employee”), for and in
consideration of certain amounts payable under the ________________ (the
“Agreement”) entered into between him and Avid Technology, Inc. (the “Company”),
dated as of ____________. Employee agrees as follows:
Employee, on behalf of himself and his
agents, heirs, executors, administrators, successors and assigns, hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges the
Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities) (hereinafter, the “Released Parties”) from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, sums of money, costs, accounts, reckonings, covenants, contracts,
agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys’ fees and costs), of every kind
and nature that he ever had or now has against the Released Parties, including,
but not limited to, any and all claims arising out of or relating to his
employment with and/or separation from the Company, including, but not limited
to, all claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et
seq.,
the Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq., the Worker
Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et seq., Section 806 of
the Corporate and Criminal Fraud Accountability Act of 2002, 18 U.S.C. 1514(A),
the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., the Fair Credit
Reporting Act, 15 U.S.C. § 1681 et seq., the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq., Employee Order
11246, and Employee Order 11141, all as amended; all claims arising out of the
Massachusetts Fair Employment Practices Act, M.G.L. c. 151B, § 1 et seq., the Massachusetts
Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the Massachusetts Equal Rights
Act, M.G.L. c. 93, § 102 and M.G.L. c. 214, § 1C, the Massachusetts Labor and
Industries Act, M.G.L. c. 149, § 1 et seq., the Massachusetts
Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts Maternity Leave Act,
M.G.L. c. 149, § 105D, all as amended; all common law claims including, but not
limited to, actions in defamation, intentional infliction of emotional distress,
misrepresentation, fraud, wrongful discharge, and breach of contract, all claims
to any non-vested ownership interest in the Company, contractual or otherwise,
and any claim or damage arising out of his employment with and/or separation
from the Company (including a claim for retaliation) under any common law theory
or any federal, state or local statute or ordinance not expressly referenced
above; provided, however, that (a) nothing in this General Release prevents
Employee from filing a charge with, cooperating with, or participating in any
proceeding before the Equal Employment Opportunity Commission or a state fair
employment practices agency (except that Employee acknowledges that he may not
be able to recover any monetary benefits in connection with any such claim,
charge or proceeding); and (b) this General Release does not include (i) any
right to vested benefits to which Employee may be entitled under any Company
benefit plan; (ii) any termination rights Employee may have under the terms of
the employee’s offer letter and (iii) any right to indemnification arising out
of Employee’s employment with the Company pursuant to any policy of insurance
maintained by the Company.
Employee acknowledges that he has been
given at least twenty-one (21) days to consider this General Release, and that
the Company advised him to consult with an attorney of his own choosing prior to
signing this General Release. Employee understands that he may revoke this
General Release for a period of seven (7) days after he signs this General
Release by notifying the Company’s General Counsel, in writing, and the General
Release shall not be effective or enforceable until the expiration of this seven
(7) day revocation period. Employee understands and agrees that by
entering into this General Release, he is waiving any and all rights or claims
he might have under the Age Discrimination in Employment Act, as amended by the
Older Workers Benefits Protection Act, and that he has received consideration
beyond that to which he was previously entitled.
To the extent permitted by law,
Employee understands and agrees that he shall not make disparaging, derogatory
or false statements to any person, forum or entity regarding the Company or any
of its directors, officers, employees, agents or representatives or about the
Company's business affairs and financial condition.
IN WITNESS WHEREOF, the parties hereto
have executed this General Release as of the day and year set forth
below.
AVID
TECHNOLOGY, INC.
By:
________________________
Title:
_______________________
Date:
_______________________
____________________________
Date: _______________________