Employment Agreement

 

Change of Control Agreement

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EX-10.52 10 d644242dex1052.htm EX-10.52

Exhibit 10.52

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

This Employment Agreement originally made as of September 19, 2006 by and between Lionbridge Technologies, Inc., a Delaware corporation (the “Company”), and Rory J. Cowan (the “Executive”), was amended and restated in its entirety as of October 31, 2008 and is hereby amended and restated in its entirety as of November 7, 2013.

WHEREAS, pursuant to the Employment Agreement dated as of December 23, 1996 and the amended and restated Employment Agreement dated as of September 19, 2006 (the “2006 Agreement”), the Executive has served as Chairman of the Board and Chief Executive Officer of the Company for more than eleven years; and

WHEREAS, the Company and the Executive wish to amend and restate the 2006 Agreement to comply with and meet the requirements of the provisions of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”);

NOW, THEREFORE, the parties agree that the 2006 Agreement is hereby amended and restated in its entirety as follows:

1. EMPLOYMENT. Subject to the terms and conditions set forth in this Agreement, the Company shall continue to employ the Executive as Chief Executive Officer and the Executive agrees to continue to be so employed.

2. TERM. The term of the Executive’s employment hereunder (the “Term”) shall commence on the date hereof and continue until the first to occur of the expiration of the Term (as defined below) or the termination of the Executive’s employment in accordance with Section 5 of this Agreement. “Term” shall mean the period commencing as of the date hereof and continuing in effect through September 30, 2010; provided that on October 1, 2009 and each October 1 thereafter, the Term shall be automatically extended for one additional year unless, not later than one year prior to the scheduled expiration of the Term (or any extension thereof), either party shall have given the other party written notice that the Term will not be extended. A termination of this Agreement that results because the Executive gives notice that he declines to extend the Term shall be treated for all purposes hereunder as a termination of employment described in Section 5.5. A termination of this Agreement that results because the Company gives notice that it declines to extend the Term shall be treated for all purposes hereunder as a termination by the Company other than for Cause described in Section 5.4.

3. CAPACITY AND PERFORMANCE.

3.1 OFFICES. During the Term, the Executive shall serve the Company as President and Chief Executive Officer of the Company. In such capacity, the Executive will be responsible for day-to-day operations of the Company as well as the Company’s strategic direction. In addition, subject to election by the stockholders of the Company, the Executive shall serve as a member of the Company’s Board of Directors (the “Board”) and as a director of


one or more of the Company’s subsidiaries. The Executive shall be subject to the direction of, and shall have such other powers, duties and responsibilities consistent with the Executive’s position as President and Chief Executive Officer as may from time to time be prescribed by, the Board.

3.2 PERFORMANCE. During the Term, the Executive shall be employed by the Company and shall perform and discharge (faithfully, diligently and to the best of his ability) such duties and responsibilities on behalf of the Company and its subsidiaries as may be designated from time to time by the Board which are consistent with the Executive’s position as President and Chief Executive Officer. The Executive shall devote substantially all of his time, attention and energies to the business of the Company and shall not engage in any other business activity or activities, whether or not such business activity is pursued for gain, profit or other pecuniary advantage, that, in the reasonable judgment of the Board may conflict with the proper performance of the Executive’s duties under this Agreement. Notwithstanding the foregoing, except as may be set forth in Article 9 of this Agreement, nothing herein shall be construed as preventing the Executive from engaging in the following activities, provided such activities do not conflict with the proper performance of the Executive’s duties for the Company or have an adverse effect on the Company: (a) investing the personal assets of the Executive and his family; (b) serving on the board of directors or similar governing body of any other company, but only, in the case of a for-profit company, if such service is approved by the Board, such approval not to be unreasonably withheld (it being agreed that the current service by the Executive on any other board of directors is deemed approved); or (c) engaging in religious, charitable, trade association, or other community or non-profit activities.

4. COMPENSATION AND BENEFITS. As compensation for all services performed by the Executive under this Agreement, during the Term, the Executive shall be entitled to the following compensation and benefits:

4.1 BASE SALARY. The Company shall pay the Executive a base salary at the initial rate of $550,000 per year, payable in accordance with the payroll practices of the Company for its executives and subject to annual increases (based on an annual review) by the Board in its sole discretion. Such base salary, as from time to time increased, is hereafter referred to as the “Base Salary.” The Base Salary shall not be decreased without the Executive’s prior written consent, except for a reduction of Base Salary in connection with a cost cutting program under which the Base Salaries of all senior officers are reduced.

4.2 BONUS COMPENSATION. Each year the Company shall provide the Executive with a target annual bonus opportunity of 100% of Base Salary based on performance goals mutually agreeable to the Executive and the Nominating and Compensation Committee of the Board.

4.3 STOCK/OPTIONS. The Company will recommend to the Board that the Executive receive annual grants of stock, stock options, and stock rights pursuant to such restricted stock, stock option, stock right and similar agreements and plans as the Company may have in effect from time to time in amounts and on terms reasonably commensurate to those previously awarded to the Executive and no less favorable (including with regard to vesting) than those afforded to any other executive employee of the Company in connection with the Company’s annual equity grant program as it may then exist.

 

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4.4 VACATIONS. The Executive shall be entitled to five (5) weeks of vacation per annum, to be taken at such times and intervals as shall be determined by the Executive in his reasonable discretion. The Executive may not accumulate or carry over from one calendar year to another any unused, accrued vacation time. The Executive shall not be entitled to compensation for vacation time not taken, except as required by law upon termination of employment.

4.5 LIFE INSURANCE. The Company will provide the Executive with life insurance for which the Executive may designate the beneficiary or beneficiaries in a face amount of no less than the greater of (a) two times his Base Salary or (b) the highest amount provided to any other executive employee of the Company.

4.6 OTHER BENEFITS. Subject to any contribution therefor generally required of executives of the Company, the Executive shall be entitled to participate in all employee benefits plans (other than any profit sharing or bonus compensation programs) from time to time adopted by the Board and in effect for executives of the Company generally, except to the extent such plans are in a category of benefit otherwise provided to the Executive. Such participation shall be subject (a) the terms of the applicable plan documents, (b) generally applicable Company policies and (c) the discretion of the Board or any administrative or other committee provided for in or contemplated by such plan. The Company may alter, modify, add to or delete its employee benefits plans at any time as the Board, in its sole judgment, determines to be appropriate.

4.7 BUSINESS EXPENSES. The Company shall pay or reimburse the Executive for all reasonable business expenses incurred or paid by the Executive in the performance of his duties and responsibilities hereunder, subject to (a) any expense policy of the Company set by the Board from time to time, and (b) such reasonable substantiation and documentation requirements as may be specified by the Board from time to time.

5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS. The Executive’s employment hereunder shall terminate under the circumstances set forth in this Section 5. The fiscal year in which termination of the Executive’s employment is effective is sometimes referred to herein as the “Termination Year.”

5.1 DEATH. In the event of the Executive’s death during the Term, the Executive’s employment hereunder shall immediately and automatically terminate and the Company shall pay to the Executive’s designated beneficiary or, if no beneficiary has been designated by the Executive, to his estate (a) any Base Salary earned but unpaid through the date of death, payable no later than the next regularly scheduled pay date following the date of death, (b) any unpaid portion of the Bonus for the fiscal year preceding the Termination Year that was earned but has not yet been paid, payable at the times the Company pays its other executives such bonuses in accordance with its general payroll policies, and (c) a Bonus with respect to the Termination Year, payable within thirty (30) days after the date of death, in an amount determined by multiplying the Bonus that was payable to the Executive with respect to the fiscal

 

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year immediately preceding the Termination Year by a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the Termination Year in which the Executive was employed by the Company. After the end of the fiscal year of the Company in which the Executive’s employment is terminated by reason of his death, the Board shall determine the amount of the bonus that would have been paid to the Executive if the Executive had been employed for the entire fiscal year and shall multiply that amount by the fraction set forth in clause (c) of the preceding sentence. If the result of such calculation exceeds the amount paid to the Executive under said clause (c), the Company shall pay the amount of the excess to the Executive’s designated beneficiary or, if no beneficiary has been designated by the Executive, to his estate, as soon as administratively feasible after such amount is determined.

5.2 DISABILITY.

5.2.1 The Company may terminate the Executive’s employment hereunder, upon notice to the Executive, in the event that the Executive is unable to perform the essential functions of his job either with or without reasonable accommodation on account of a Disability. For purposes of this Agreement, a “Disability” means that the Executive: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; or (ii) by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under the Company’s accident and health plan. The Board may designate another employee to act in the Executive’s place during any period of the Executive’s Disability.

5.2.2 Through the effective date of any termination pursuant to Section 5.2.1, the Executive shall continue to receive his compensation and benefits pursuant to Section 4 as though he were not Disabled, including his Bonus; provided, however, that the amount of such Bonus shall be no less than the Bonus paid to the Executive with respect to the fiscal year immediately preceding the fiscal year in which the Executive first became Disabled; and provided, further, that in the Termination Year, the Executive’s bonus shall be pro rated by multiplying the amount of the Bonus that he would otherwise receive hereunder by a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the Termination Year in which the Executive was employed by the Company.

5.2.3 Within thirty (30) days after the effective date of any termination pursuant to Section 5.2.1, the Company shall pay the Executive a single lump sum cash payment in an amount equal to the sum of (a) the Executive’s annual Base Salary at the rate in effect at the time of termination plus (b) an amount equal to the amount of the Bonus paid to the Executive with respect to the fiscal year immediately preceding the fiscal year in which the Executive first became Disabled. If the Company’s disability insurance carrier approves the Executive for disability benefits, then the Company’s obligation shall be to pay the Executive a single lump sum supplemental payment that equals the excess of the amount set forth in the preceding sentence over the amount of disability insurance payable over the 12 months following termination of employment.

 

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5.3 BY THE COMPANY FOR CAUSE.

5.3.1 The Company may terminate the Executive’s employment hereunder for Cause at any time upon notice to the Executive setting forth in reasonable detail the nature of such Cause. Only the following events or conditions shall constitute “Cause” for termination: (a) fraud, embezzlement or other act of dishonesty by the Executive that causes material injury to the Company or any of its affiliates, (b) conviction of, or plea of nolo contendere to, any felony involving dishonesty or moral turpitude, or (c) a failure by the Executive, other than by reason of death or disability, to take or refrain from taking any corporate action consistent with his duties as the President and Chief Executive Officer as specified in written directions of the Board following receipt by the Executive of such written directions which such failure is not cured within 30 days after written notice that failure to take or refrain from taking such action shall constitute “Cause” for purposes hereof.

5.3.2 Upon the giving of notice of termination of the Executive’s employment hereunder for Cause, the Company shall pay the Executive (a) any Base Salary earned but unpaid through the date of termination, payable no later than the effective date of termination, and (b) any Bonus for the fiscal year preceding the Termination Year that was earned but has not yet been paid, payable at the times the Company pays its other executives such bonuses in accordance with its general payroll policies. After payment of such amounts, the Company shall have no further obligation or liability to the Executive relating to the Executive’s employment hereunder, or the termination thereof including any Bonus amounts for the Termination Year.

5.4 BY THE COMPANY OTHER THAN FOR CAUSE.

5.4.1 The Company may terminate the Executive’s employment hereunder other than for Cause at any time upon notice to the Executive.

5.4.2 In the event of any termination pursuant to Section 5.4.1, the Company shall pay the Executive (a) any Base Salary earned but unpaid through the date of termination, payable on the effective date of termination, (b) any unpaid portion of any Bonus for the fiscal year preceding the Termination Year that was earned but has not been paid, payable at the times the Company pays its other executives such bonuses in accordance with its general payroll policies, and (c) a Bonus with respect to the Termination Year, payable within thirty (30) days after the effective date of termination, in an amount determined by multiplying the Bonus that was payable to the Executive with respect to the fiscal year immediately preceding the Termination Year by a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the Termination Year in which the Executive was employed by the Company.

5.4.3 Within thirty (30) days after the effective date of any termination pursuant to Section 5.4.1, the Company shall pay the Executive a single lump sum in cash in an amount equal to 100% times the sum of (a) the Executive’s Base Salary at the rate in effect at the effective date of termination, plus (b) the amount of the Bonus payable to the Executive with respect to the fiscal year immediately preceding the Termination Year.

 

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5.4.4 After the end of the fiscal year of the Company in which the Executive’s employment is terminated, the Board shall determine the amount of the bonus that would have been paid to the Executive if the Executive had been employed for the entire fiscal year and shall multiply that amount by the fraction set forth in clause (c) of Section 5.4.2. If the result of such calculation exceeds the amount paid to the executive under said clause (c), the Company shall pay the amount of the excess to the Executive as soon as administratively feasible after such amount is determined.

5.5 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. The Executive may terminate the Executive’s employment hereunder at any time upon thirty (30) days prior written notice to the Company. Upon such termination, the Executive shall be entitled to receive (a) any Base Salary earned but unpaid through the date of termination, payable no later than the next regularly scheduled payroll following termination, (b) any unpaid portion of any Bonus for the fiscal year preceding the Termination Year that was earned but has not yet been paid, at the times the Company pays it executives bonuses in accordance with its general payroll policies, and (c) a Bonus with respect to the Termination Year, payable within thirty (30) days after the effective date of termination, in an amount determined by multiplying the Bonus that was payable to the Executive with respect to the fiscal year immediately preceding the Termination Year by a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the Termination Year in which the Executive was employed by the Company.

5.6 TERMINATION BY EXECUTIVE WITH GOOD REASON.

5.6.1 The Executive may terminate his employment hereunder at any time with Good Reason upon notice to the Company setting forth in reasonable detail the nature of such Good Reason. Any of the following events shall constitute Good Reason, unless the Executive has expressly consented to such event in writing; provided, however, that no such event shall be deemed to constitute Good Reason if, within 30 days after the receipt by the Company of such notice, such event has been fully corrected and the Executive has been reasonably compensated for any losses or damages resulting therefrom:

 

 

(a)

The failure of the shareholders of the Company to elect the Executive as a Director of the Company or to continue the Executive in such office;

 

 

(b)

a material adverse change made by the Company in the Executive’s title, functions, duties, reporting requirements or responsibilities (for the avoidance of doubt, including, without limitation, following a Change of Control as defined herein if (during the time period specified in Section 5.7.5) the Executive is (a) no longer serving as Chief Executive Officer of a corporation listed on the NASDAQ-National Market, the New York Stock Exchange or any other similar public exchange or market, (b) Chief Executive Officer of a subsidiary of the acquiring corporation or entity or (c) no longer an Executive Officer (as defined by Section 16 of the Securities Exchange Act of 1934, as amended);

 

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);

 

 

(c)

a reduction by the Company in the Executive’s Base Salary as the same may be increased from time to time, except for a reduction that occurs in connection with a cost cutting program under which the Base Salaries of all senior officers are reduced;

 

 

(d)

a reduction in the Executive’s target annual bonus opportunity below 100% of Base Salary;

 

 

(e)

a material reduction in the package of fringe benefits provided to the Executive as of the date hereof, taken as a whole, or the elimination of any material fringe benefit provided to the Executive as of the date hereof;

 

 

(f)

the failure by the Company to provide the Executive with facilities, equipment and administrative support sufficient to enable him to properly perform his duties and responsibilities;

 

 

(g)

the change in the principal location at which the Executive performs his duties to a location that is more than fifty (50) miles from the Executive’s current location; or

 

 

(h)

any material breach of this Agreement by the Company.

5.6.2 In the event of any termination pursuant to Section 5.6.1, the Company shall pay the Executive (a) Base Salary earned but unpaid through the date of termination, payable no later than the next regularly scheduled pay day following the effective date of termination; (b) any unpaid portion of any Bonus for the fiscal year preceding the Termination Year that was earned but has not been paid, payable at the times the Company pays its other executives such bonuses in accordance with its general payroll policies, and (c) a Bonus with respect to the Termination Year, payable within thirty (30) days after the effective date of termination, in an amount determined by multiplying the Bonus that was payable to the Executive with respect to the fiscal year immediately preceding the Termination Year by a fraction, the denominator of which shall be 365 and the numerator of which shall be the number of days during the Termination Year in which the Executive was employed by the Company.

5.6.3 Within thirty (30) days after the effective date of any termination pursuant to Section 5.6.1, the Company shall pay the Executive a single lump sum in cash in an amount equal to 100% times the sum of (a) the Executive’s Base Salary in effect at the effective date of termination, plus (b) the amount of the Bonus payable to the Executive with respect to the fiscal year immediately preceding the Termination Year.

 

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5.6.4 After the end of the fiscal year of the Company in which the Executive’s employment is terminated, the Board shall determine the amount of the bonus that would have been paid to the Executive if the Executive had been employed for the entire fiscal year and shall multiply that amount by the fraction set forth in clause (c) of Section 5.6.2. If the result of such calculation exceeds the amount paid to the executive under said clause (c), the Company shall pay the amount of the excess to the Executive as soon as administratively feasible after such amount is determined.

5.7 ADDITIONAL COMPENSATION. In the event of the termination of the Executive’s employment for any reason, other than a termination by the Company with Cause or a termination by the Executive without Good Reason:

5.7.1 the Company shall pay the Company’s cost of coverage, at the level paid by the Company on the date of termination, for the Executive and any dependents under all group health plans maintained by the Company during the entire period that such coverage is continued under COBRA;

5.7.2 except in the case of a termination due to the Employee’s death, the Company shall continue all life, disability and other insurance benefits provided by the Company to the Executive at the time of termination for a period of two years following the effective date of termination, to the extent permitted under the terms of such insurance plans. If any insurance plan does not permit the continuation of benefits following termination, the Company shall promptly reimburse the Executive for the cost of obtaining substitute insurance upon comparable terms on a monthly basis;

5.7.3 if the Executive holds restricted stock, stock options, restricted stock units or similar rights (“Stock Rights”) that vest solely upon the passage of time and which are, as of such date, not yet fully vested, then, notwithstanding the terms of the plan or agreement governing such Stock Rights, all such Stock Rights shall immediately, and without any further action of the Company or the Executive whatsoever, become fully vested and exercisable;

5.7.4 if the Executive holds Stock Rights that vest solely upon the achievement of goals other than the passage of time, each such Stock Right shall become vested in accordance with its terms; and

5.7.5 if such termination of employment occurs within 6 months before or 24 months after the occurrence of a Change of Control (as defined in Exhibit A), then the severance benefit payable to the Executive under Section 5.4 or 5.6 shall be increased to a lump sum in cash in an amount equal to 200% times the sum of (a) the Executive’s Base Salary at the rate in effect at the effective date of termination, plus (b) the amount of the bonus payable to the Executive with respect to the fiscal year immediately preceding the Termination Year.

5.8 PAYMENT IN FULL. Payment by the Company of any amounts that may be due the Executive under the applicable termination provision of Section 5 shall constitute the entire obligation of the Company to the Executive, except that nothing in this Section 5.8 is intended or shall be construed to affect the rights and obligations of the Company and its affiliates, on the one hand, and the Executive, on the other, with respect to any loans, stock

 

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pledge arrangements, option plans or other agreements to the extent said rights or obligations survive termination of employment under the provision of documents relating thereto. Acceptance by the Executive of performance by the Company shall constitute full settlement of any claim that the Executive might otherwise assert against the Company, its affiliates or any of their respective shareholders, partners, directors, officers, employees or agents relating to such termination.

5.9 SURVIVAL OF CERTAIN PROVISIONS. Provisions of this Agreement shall survive any termination if so provided herein or if necessary or desirable fully to accomplish the purposes of such provision, including, without limitation, the obligations of the Executive under Article 9 hereof and the Employee Non-Disclosure and Developments Agreement (the “Non-Disclosure Agreement”), dated as of December 23, 1996, by and between the Executive and the Company. The obligation of the Company to make severance payments to or on behalf of the Executive under this Section 5 hereof is expressly conditioned upon the Executive’s continued full performance of obligations under the terms of Article 9 hereof and the Non-Disclosure Agreement. The Executive recognizes that, except as expressly provided in this Section 5, no compensation is earned after termination of employment.

5.10 FURTHER ASSURANCES. In no event shall the amounts payable to the Executive under this Section 5 be less generous than the amounts that would be payable to any other senior executive of the Company under comparable circumstances.

6. CONFLICTING AGREEMENTS. The Executive hereby represents and warrants that the execution of this Agreement and the performance of his obligations hereunder will not breach or be in conflict with any other agreement to which or by which the Executive is a party or is bound and that the Executive is not now subject to any covenants against competition or similar covenants that would affect the performance of his obligations hereunder. The Executive will not disclose to or use on behalf of the Company or any of its affiliates any proprietary information of a third party without such party’s consent.

7. WITHHOLDING. All payments made by the Company under this Agreement shall be reduced by any tax or other amounts required to be withheld by the Company under applicable law.

8. GROSS UP.

8.1 GENERAL. In the event that any amount payable to the Executive hereunder or under or any other plan, arrangement, or agreement with the Company or any affiliated company (a “Payment”) is subject to any penalty, excise tax or similar charge imposed by law, including without limitation, pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), and/or any interest or penalties are incurred by the Executive with respect to any such penalty, excise tax or similar charge (such penalty, excise tax or similar charge, together with any such interest and penalties, is hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to or on behalf of the Executive an additional payment or payments (collectively, the “Gross-up Payment’) such that the net amount received and retained by the Executive after deduction from such Payment (a) such Excise Tax and (b) any federal, state or local income or payroll tax (including any Excise Tax) on the Gross-Up Payment, shall

 

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equal the amount of the Payment prior to imposition of such Excise Tax. For purposes of calculating the Gross-Up Payment, the Executive shall be deemed to pay income taxes at the highest applicable marginal rate of federal, state or local income taxation for the calendar year in which the Gross-up Payment is to be made. The Gross-Up Payment, if any, shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax payment is required to be paid.

8.2 EXCEPTION FOR SECTION 4999 GROSS-UP. Notwithstanding the provisions of Section 8.1, in the case of any Payment that is subject to an Excise Tax under Section 4999 of the Code, if reducing the amount of the Payment by up to 10% would prevent the Executive from being liable for the Excise Tax under said Section 4999, then the Company may elect to so reduce the amount of such Payment. The Company shall reduce the amount of the Payment by the smallest amount necessary to prevent the Executive from becoming liable for such Excise Tax. In such event, the Payment shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any Payment is to be made over time (e.g., in installments, etc.), then the Payments shall be reduced in reverse chronological order.

8.3 SECTION 409A COMPLIANCE.

8.3.1 Anything in this Agreement to the contrary notwithstanding, if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the Executive during the period between the date of termination and the New Payment Date shall be paid to the Executive in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the day immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement.

8.3.2 The parties acknowledge and agree that the interpretation of Section 409A and its application to the terms of this Agreement 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 the Executive that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereunder) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved; provided, however, that any

 

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resulting renegotiated terms shall provide to the Executive the after-tax economic equivalent of what otherwise has been provided to the Executive pursuant to the terms of this Agreement, and provided further, that any deferral of payments or other benefits shall be only for such time period as may be required to comply with Section 409A.

8.3.3 If, notwithstanding the preceding provisions of this Section 8.3, any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) (the “Payments”) made or provided to the Executive or for his benefit in connection with this Agreement or the Executive’s employment with the Company or the termination thereof, are determined to be subject to the tax imposed by Section 409A(a)(1)(B) or any interest or penalties with respect to such taxes (such taxes, together with any such interest and penalties, are collectively referred to as the “Section 409A Tax”), then the Company will pay to the Executive, on or within ten (10) calendar days after any such amount is required to be paid or withheld, an additional amount (a “Gross-Up Payment”) such that the net amount the Executive retains after paying any applicable Section 409A Tax and any federal, state or local income or FICA taxes on such Gross-Up Payment shall be equal to the amount the Executive would have received if the Section 409A Tax were not applicable to the Payments. For purposes of determining the amount of the Gross-Up Payment, if any, the Executive will be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Payments are made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date the Payments are made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. If the Section 409A Tax is determined by the Internal Revenue Service, on audit or otherwise, to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company must make another Gross-Up Payment with respect to such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within ten (10) calendar days immediately following the date that the amount of such excess is required to be paid or withheld. The Company and the Executive must each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Section 409A Tax with respect to the total Payments.

8.3.4 The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).

8.4 DETERMINATIONS. Determinations under this Section 8 will be made by the firm of certified public accountants then serving as the Company’s auditor unless the Executive has reasonable objections to the use of that firm, in which case the determinations will be made by a comparable firm chosen by the Executive after consultation with the Company. The determinations of such firm will be binding upon the Company and the Executive. The Company shall be responsible for all charges of such accountants.

 

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9. NON-COMPETITION

9.1 The term of this Article 9 shall be for a period commencing on the date hereof and ending 12 months from the date of termination of the Executive’s employment by the Company.

9.2 During the term of this Article 9, the Executive will not, without the Company’s prior written consent, directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, consultant, agent, independent contractor or stockholder of any company or business, engage or otherwise have a financial interest in any business activity which is directly or indirectly in competition in the United States, Belgium, People’s Republic China, France, Ireland, Japan, Korea, The Netherlands, Taiwan, or any other geographic area where the business is being conducted or as proposed to be conducted with any of the products or services being developed, marketed, distributed, planned, sold or otherwise provided by the Company at such time. The ownership by the Executive of not more than one percent of the shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on the Nasdaq Stock Market shall not be deemed, in and of itself, to violate the prohibitions of this paragraph.

9.3 During the term of this Article 9, the Executive will not, directly or indirectly, employ, or knowingly permit any other company or business organization which employs the Executive or is directly or indirectly controlled by the Executive to employ, any person who is employed by the Company at any time during the term hereof, or in any manner seek to induce any such person to leave his or her employment with the Company.

9.4 During the term of this Article 9, the Executive will not solicit or do business with, directly or indirectly, any present or past customer of the Company, or any prospective customer of the Company with whom the Executive has had contact, in connection with any business activity which would violate any other provision of this Agreement.

9.5 The Executive hereby represents that, except as the Executive has disclosed in writing to the Company, the Executive is not a party to, or bound by the terms of, any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of the Executive’s employment with the Company or to refrain from competing, directly or indirectly, with the business of such previous employer or any other party. The Executive further represent that the Executive’s performance of all the terms of this Agreement and as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by the Executive in confidence or in trust prior to the Executive’s employment with the Company, and the Executive will not disclose to the Company or induce the Company to use any confidential or proprietary information or material belonging to any previous employer or others.

9.6 The Executive agree that the breach of the provisions of this Article 9 by the Executive will cause irreparable damage to the Company and that in the event of such breach the Company shall have, in addition to any and all remedies of law, the right to an injunction, specific performance or other equitable relief to prevent the violation of the Executive’s obligations hereunder.

 

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9.7 The Executive hereby agree that each provision of this Article 9 shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this Article 9 shall for any reason be held to be excessively broad as to scope, activity or subject so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.

9.8 For purposes of this Article 9, the term “Company” shall include Lionbridge Technologies, Inc., and any subsidiaries, subdivisions or affiliates.

10. MISCELLANEOUS.

10.1 REPRESENTATION BY THE COMPANY. The Company represents and warrants that (a) the Company has full power and authority to enter into and perform its obligations under this Agreement, (b) this Agreement has been duly authorized by all necessary action of the Company, including by the Compensation Committee and any other committee of the Board of Directors of the Company with authority over any matter set forth in this Agreement, and (c) this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms.

10.2 ASSIGNMENT. Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein (provided, however, that nothing contained herein shall be construed to place any limitation or restriction on the transfer of the Company’s Common Stock in addition to any restrictions set forth in the Company’s Restated Certificate of Incorporation or any stockholder agreement applicable to the holders of such shares), by operation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and obligations under this Agreement without the consent of the Executive in the event that the Company shall hereafter affect a reorganization, consolidate with, or merge into, any other entity or transfer all or substantially all of its properties or assets to any other entity, in which event such entity shall be deemed the “Company” hereunder for all purposes; provided that, as a condition to any such assignment, such successor entity shall assume all of the obligations of the Company pursuant to this Agreement and shall agree to be bound thereby. This agreement shall inure to the benefit of and be binding upon the Company and the Executive, and their respective successors, executors, administrators, heirs and permitted assigns.

10.3 SEVERABILITY. If any portion or provision of this Agreement shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the application of such provision in such circumstances shall be deemed modified to permit its enforcement to the maximum extent permitted by law, and both the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable and the remainder of this Agreement shall not be affected thereby, and each portion and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

 

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10.4 WAIVER; AMENDMENT. No waiver or any provision hereof shall be effective unless made in writing and signed by the waiving party. The failure of either party to require the performance of any term or obligation of this Agreement, or the waiver by either party of any breach of this Agreement, shall not prevent any subsequent enforcement of such term or obligation or be deemed a waiver of any subsequent breach. This Agreement may be amended or modified only by a written instrument signed by the Executive and the Company.

10.5 NOTICES. Any and all notices, requests, demands and other communications provided for by this Agreement shall be in writing and shall be effective when delivered in person or two business days after being deposited in the United States mail, postage prepaid, registered or certified, and addressed (a) in the case of the Executive, to:

Mr. Rory J. Cowan

President

Lionbridge Technologies, Inc.

281 Fairhaven Hill Road

Concord, Massachusetts 01742

or, (b) in the case of the Company, at its principal place of business and to the attention of Board of Directors; or to such other address as either party may specify by notice to the other.

10.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions of the Executive’s employment and, except as otherwise provided herein, supersedes all prior communications, agreements and understandings, written or oral, with the Company or any of its affiliates or predecessors with respect to the terms and conditions of the Executive’s employment, including, without limitation, the 2006 Agreement and that certain Change in Control Agreement dated as of July 14, 2003 by and between the Executive and the Company and the Company’s Change of Control Plan. Notwithstanding the provisions of the preceding sentence, this Agreement does not supersede any agreement between the Executive and the Company regarding non-disclosure and developments, including without limitation, the Non-Disclosure Agreement.

10.7 HEADINGS. The headings and captions in this Agreement are for convenience only and in no way define or describe the scope or content of any provision of this Agreement.

10.8 COUNTERPARTS. This Agreement may be executed in two counterparts, each of which shall be original and both of which together shall constitute one and the same instrument.

10.9 GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the domestic substantive laws of The Commonwealth of Massachusetts without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

10.10 CONSENT TO JURISDICTION. Each of the Company and the Executive, by its or his execution hereof, (i) hereby irrevocably submits to the exclusive jurisdiction of the state courts of The Commonwealth of Massachusetts for the purpose of any

 

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claim or action arising out of or based upon this Agreement or relating to the subject matter hereof, (ii) hereby waives, to the extent not prohibited by applicable law, and agrees not to assert by way of motion, as a defense or otherwise, in any such claim or action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that any such proceeding brought in the above-named courts is improper, or that this Agreement or the subject matter hereof may not be enforced in or by such court, and (iii) hereby agrees not to commence any claim or action arising out of or based upon this Agreement or relating to the subject matter hereof other than before the above-named courts nor to make any motion or take any other action seeking or intending to cause the transfer or removal of any such claim or action to any court other than the above-named courts whether on the grounds of inconvenient forum or otherwise. Each of the Company and the Executive hereby consents to service of process in any such proceeding in any manner permitted by Massachusetts law, and agrees that service of process by registered or certified mail, return receipt requested, at its address specified pursuant to Section 10.5 hereof is reasonably calculated to give actual notice.

 

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IN WITNESS WHEREOF, this Agreement has been executed by the Company, by its duly authorized representative, and by the Executive, as of the date first above written.

 

THE COMPANY

LIONBRIDGE TECHNOLOGIES, INC.

By:

 

 

 

Name:

 

Margaret A. Shukur

 

Title:

 

Senior Vice President, General Counsel and Secretary

THE EXECUTIVE

 

Rory J. Cowan

 

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Exhibit A

“Change of Control” means the occurrence of any of the following events:

(1) any Person becomes the owner of 25% or more of the Company’s Common Stock and a majority of the members of the Board of Directors make a determination that a change of control has occurred; or

(2) individuals who, as of the Effective Date, constitute the Board of Directors of the Company (the “Continuing Directors”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual becoming a director after 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 Continuing Directors will be deemed to be a Continuing Director, but excluding for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities and Exchange Act of 1934 (the “Exchange Act”)) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(3) consummation of a reorganization, merger, consolidation or other transaction that will result in the transfer of ownership of more than 50% of the Company’s Common Stock; or

(4) liquidation or dissolution of the Company or sale of substantially all of the Company’s assets.

In addition, for purposes of this definition the following terms have the meanings set forth below:

“Common Stock” means the then outstanding Common Stock of the Company plus, for purposes of determining the stock ownership of any Person, the number of unissued shares of Common Stock which such Person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) upon the exercise of conversion rights, exchange rights, warrants or options or otherwise. Notwithstanding the foregoing, the term Common Stock does not include shares of preferred stock or convertible debt or options or warrants to acquire shares of Common Stock (including any shares of Common Stock issued or issuable upon the conversion or exercise thereof) to the extent that the Board expressly so determines in any future transaction or transactions.

A Person will be deemed to be the “owner” of any Common Stock of which such Person would be the “beneficial owner,” as such term is defined in Rule 13d-3 promulgated by the Securities and Exchange Commission under the Exchange Act.

 

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“Person” has the meaning used in Section 13(d) of the Exchange Act, except that “Person” does not include (i) the Executive, an Executive Related Party, or any group of which the Executive or Executive Related Party is a member, or (ii) the Company or a wholly owned subsidiary of the Company or an employee benefit plan (or related trust) of the Company or of a wholly owned subsidiary.

An “Executive Related Party” means any affiliate or associate of the Executive other than the Company or a subsidiary of the Company. The terms “affiliate” and “associate” have the meanings given in Rule 12b-2 under the Exchange Act; the term “registrant” in the definition of “associate” means, in this case, the Company.

 

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EX-10.2 3 exhibit2.htm EX-10.2

AMENDED AND RESTATED
LIONBRIDGE TECHNOLOGIES, INC.
AGREEMENT

This AGREEMENT originally entered into between Lionbridge Technologies, Inc. (the “Company”) and      (“Executive”) effective as of the 2nd day of November 2006 and is hereby amended and restated as of the 31st day of October 2008.

WHEREAS, the Board of the Directors of the Company (the “Board”) considers it essential to the best interests of the Company and its stockholders to foster the Company’s ability to retain key management personnel; and

WHEREAS, the Board recognizes that, as it generally the case with publicly-held corporations, the possibility of a Change of Control (as defined herein) exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of management personnel to the detriment of the Company and its stockholders; and

WHEREAS, the Board intends for this Agreement to provide protection for its executive officers in general, for so long as such officers remain in the employment of the Company, against the exigencies of a Change of Control, but not to otherwise provide assurance of or rights to continued employment; and

WHEREAS, should the possibility of a Change of Control arise, in addition to the Executive’s regular duties, the Executive may be called upon to assist in the assessment of such possible Change of Control, to advise management and the Board as to whether such Change of Control would be in the best interests of the Company and to take such other actions as the Board might determine to be appropriate; and

WHEREAS, this Agreement describes the rights conferred on the Executive under the Lionbridge Technologies, Inc. Change of Control Plan, amended and restated as of October 31, 2008 (the “Change of Control Plan”).

WHEREAS, this Agreement is not intended to alter the rights of the Executive in the absence of a Change of Control with respect to his or her employment by the Company or his or her compensation and benefits in connection with such employment and, accordingly, this Agreement, although taking effect as provided below, will be operative only upon a Change of Control.

NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:

1. Term; Employment Protection Period. The term during which this Agreement (the “Agreement”) will be in effect (the “Term of the Agreement”) originally began on
November 2, 2006 (the “Effective Date”) and will remain in effect until terminated by a vote of the majority of the Board of Directors. If a Change of Control (as defined in Exhibit A) occurs during the Term of the Agreement, the Agreement will remain in effect until all obligations hereunder have been discharged. The period starting on the date of such a Change of Control and ending on the 18 month anniversary of the Change of Control will be a “Employment Protection Period” under the terms of this Agreement.

2. Definition of a Change of Control. “Change of Control” has the meaning set forth in Schedule A hereto.

3. Termination of Employment; Severance Benefits.

3.1 Terminability of Employment. If Executive’s employment terminates during the Employment Protection Period set forth in this Agreement following a Change of Control, the parties will be required to discharge the applicable obligations described in this Section 3 and elsewhere in this Agreement. If Executive’s employment terminates at any time other than during the applicable Employment Protection Period following a Change of Control, Executive will have no rights under the Agreement.

3.2 Termination upon Death or Disability. If Executive ceases to be an employee of the Company as a result of death or disability, the Company will have no further obligation or liability to Executive hereunder other than for base salary earned and unpaid at the date of termination and compensation for accrued vacation, and the Term of the Agreement will end when those amounts are paid. However, nothing in this Agreement is intended to interfere with the rights of Executive and his family or
beneficiaries under other applicable plans, policies or arrangements of the Company. For purposes of this Section 3.2, the Company may terminate Executive’s employment for “disability” if, because of physical or mental incapacity, Executive is unable for a period of 90 consecutive days to perform the material duties of his position and it is determined by a qualified physician chosen by the Company (and, if during a Employment Protection Period, approved by the Executive or his conservator) to be probable that such incapacity will continue for an additional 60 consecutive days.

3.3 Termination by the Company for Cause or by Executive Without Good
Reason. If the Company terminates Executive’s employment for Cause (as
defined in this Section 3.3) or if Executive terminates his employment
other than for Good Reason (as defined in this Section 3.3), the Company will
have no further obligation or liability to Executive hereunder other than
for Base Salary earned and unpaid at the date of termination and
compensation for accrued vacation, and the Term of the Agreement will end
when those amounts are paid.

“Cause” means (a) willful malfeasance or gross negligence in the

performance by Executive of his duties, resulting in harm to the Company,
(b) fraud or dishonesty by Executive with respect to the Company, or (c)
Executive’s conviction of a felony.

“Good Reason” means (i) a material reduction in the Executive’s total compensation, including but not limited to (a) a reduction of the Executive’s base salary below the

level in effect immediately prior to the Change of Control without the
Executive’s prior written consent, (b) a reduction in the Executive’s target annual bonus opportunity below the level in effect immediately prior to the Change of Control without the Executive’s prior written consent, (c) discontinuation of participation in any compensation plan that is maintained following the Change in Control in which the Executive participated immediately prior to the Change of Control without the Executive’s prior written consent, or (d) exclusion from participating in compensation programs that are customarily offered to senior executives, (ii) relocation of the Executive’s principal place of work to a location more than 50 miles from its location
immediately prior to the Change of Control or (iii) change in title or responsibilities below the level in effect immediately prior to the Change of Control without the Executive’s prior written consent.

3.4 By the Company Without Cause or By Executive for Good Reason.

(a) Entitlement to Severance Benefits. If, during the Term of the Agreement, the Company terminates Executive’s employment without Cause, or if Executive terminates his employment for Good Reason, the Company will, subject to Section 4 below, provide severance benefits to Executive as set forth below in Section 3.4(b).

(b) Severance Benefits Following a Change of Control. If the termination occurs during the Employment Protection Period, the Company will provide severance benefits to Executive as follows:

(i) The Company will pay to Executive within 30 days of the termination a lump-sum cash amount equal to 150% of sum of the Executive’s annual base salary in effect immediately prior to the termination (or, if his base salary has been reduced within 60 days of the termination or at any time after the Change of Control, his base salary in effect prior to the reduction) plus the Executive’s then current annual target bonus.

(ii) The Company will also pay to Executive within 30 days of the termination a pro-rata portion of his target bonus for the year of termination.

(iii) The Company will continue for a period of 18 months from the date of termination to provide Executive with family medical, disability and life insurance coverage at the level in effect immediately prior to the Change of Control. To the extent the Company is unable to provide such benefits to an Executive under its existing plans and arrangements, it will at the discretion of the Company either arrange to provide the Executive with substantially similar benefits upon comparable terms or pay the Executive cash amounts on a monthly basis equal to the Executive’s monthly cost of obtaining such benefits.

(c) Option Acceleration. Notwithstanding any contrary provision of the plans or

arrangements under which they are granted, upon a Change of Control and irrespective of a termination of employment, (A) 50% of the options to purchase Company stock held by Executive will immediately become exercisable and the remaining 50% of the options to purchase Company stock held by Executive will become exercisable on the earlier of the six month anniversary of the date of the Change of Control or the date such Executive’s employment is terminated without Cause or for Good Reason, and (B) all restricted stock held by Executive under restricted stock plans and arrangements will immediately become fully vested.

4. Limitations on Severance Benefits.

4.1 Section 280G. The payments to the Executive under Section 3 of this Agreement shall be made without regard to whether the deductibility of such payments (or any other “parachute payments,” as that term is defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), to or for the benefit of such Executive) would be limited or precluded by Section 280G and without regard to whether such payment (or any other “parachute payments” as so defined) would subject the Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code; provided that if the total of all “parachute payments” to or for the benefit of the Executive, after reduction for all federal, state and local taxes (including the tax described in Section 4999 of the Code, if applicable) with respect to such payments (the “Total After-Tax Payments”), would be increased by the limitation or elimination of any payment under this Agreement or any “parachute payments” under other agreements or arrangements, then the amount payable under this Agreement (or the “parachute payment” under such other agreement or arrangement shall be reduced to the extent, and only to the extent, necessary to maximize the Total After-Tax Payments. The determination as to whether and to what extent each payment under this Agreement (or the “parachute payment” under such other agreement or arrangement) is required to be reduced in accordance with the preceding sentence shall be made at the Company’s expense by its independent certified public accounting firm. In the event of any such reduction, the payments under this Agreement (or the “parachute payment” under such other agreement or arrangement) shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological order. In the event of any underpayment or overpayment under this Agreement (or such other agreement or arrangement) as determined by the accounting firm, the amount of such underpayment or overpayment shall forthwith be paid promptly to the Executive or refunded to the Company, as the case may be, with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code.

4.2 Section 409A. No payment that may be made pursuant to this Agreement that constitutes “nonqualified deferred compensation” within the meaning of Section 409A of the Code may be accelerated or deferred by the Company or the Executive. Notwithstanding anything herein (or in any other agreement or arrangement between the Executive and the Company) to the contrary, , if at the time of the Executive’s separation from service within the meaning of Section 409A of the Code, the Company determines that the Executive is a “specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that the Executive becomes entitled to under this Agreement on account of the Executive’s separation from service would be considered deferred compensation subject to the 20 percent additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i) of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A) six months and one day after the Executive’s separation from service, or (B) the Executive’s death.

The parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner so that all payments hereunder comply with Section 409A of the Code. The parties agree that this Agreement may be amended, as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.

The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions set forth in Treasury Regulation Section 1.409A-1(h).

The Company makes no representation or warranty and shall have no liability to the Executive or any other person if any payments under the Change of Control Plan or under provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption from, or the conditions of, such Section.

5. Withholding. All payments required to be made by the Company to Executive under this Agreement will be subject to the withholding of such amounts, if any, relating to tax and other payroll deductions as may be required by law.

6. Fees and Expenses. In the event of Executive’s termination of employment during a Employment Protection Period, the Company will pay any and all fees and expenses (including legal fees and other costs of arbitration or litigation) that may be incurred by Executive in enforcing his rights under this Agreement.

7. No Duty to Mitigate. Benefits payable under this Agreement as a result of termination of Executive’s employment will be considered severance pay in consideration of his past service and his continued service from the Effective Date, and his entitlement thereto will neither be governed by any duty to mitigate his damages by seeking further employment nor offset by any compensation that he may receive from other employment.

8. Confidentiality and Exclusivity. Executive agrees to maintain the confidentiality of the Company’s (and its related entities and projects) books, records, financial information, technical information, business plans and/or strategies, and other confidential matters unless required to make disclosure in the performance of his duties for the Company or as a result of a legal proceeding or other legally mandated cause. The parties recognize and agree that should the Company be required to pursue a claim against Executive under this Section 8, the Company will likely be required to seek injunctive relief as well as damages at law. Accordingly, Section 9, Arbitration, will not apply to any action by the Company against Executive for violation of this Section 8. Executive agrees for purposes of any disputes arising under this Section 8 to submit to the exclusive jurisdiction of the federal and state courts in the Commonwealth of
Massachusetts.

9. Arbitration. Except as otherwise provided in Section 8, any dispute or controversy between the parties involving the construction or application of any terms, covenants or conditions of this Agreement, or any claim arising out of or relating to this Agreement, or any claim arising out of or relating to Executive’s employment by the Company that is not resolved within ten days by the parties will be settled by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Company and Executive agree that the
arbitrator(s) will have no authority to award punitive or exemplary damages or so-called consequential or remote damages such as damages for emotional distress. Any decision of the arbitrator(s) will be final and binding upon the parties. Upon request the arbitrator(s) shall submit written findings of fact and conclusions of law. The parties agree and understand that they hereby waive their rights to a jury trial of any dispute or controversy relating to the matters specified above in this Section 9.

10. Rights of Survivors. If Executive dies after becoming entitled to benefits under Section 3 following termination of employment but before all such benefits have been provided, (a) all unpaid cash amounts will be paid to the beneficiary that has been designated by Executive in writing (the “beneficiary”), or if none, to Executive’s estate, (b) all applicable insurance coverage will be provided to Executive’s family as though
Executive had continued to live, and (c) any stock options that become exercisable under Section 3.4 will be exercisable by the beneficiary, or if none, the estate.

11. Successors. This Agreement will inure to and be binding upon the Company’s successors. The Company will require any successor to all or substantially all of the business and/or assets of the Company by sale, merger or consolidation (where the Company is not the surviving corporation), lease or otherwise, by agreement in form and substance satisfactory to Executive, to assume this Agreement expressly. This
Agreement is not otherwise assignable by the Company.

12. Subsidiaries. For purposes of this Agreement, employment by a corporation or other entity that is controlled directly or indirectly by the Company will be deemed to be employment by the Company. Thus, references in the Agreement to “Company” include such corporations or other entities where appropriate in the context.

13. Amendment or Modification; Waiver. This Agreement may not be amended unless agreed to in writing by Executive and the Company. No waiver by either party of any breach of this Agreement will be deemed a waiver of a subsequent breach.

14. Severability. In the event that any provision of this Agreement is determined to be invalid or unenforceable, the remaining provisions shall remain in full force and effect to the fullest extent permitted by law.

15. Controlling Law. This Agreement will be controlled and interpreted pursuant to Massachusetts law.

16. Superseded Agreement. This Agreement (i) supersedes and replaces in their entirety provisions related to severance payments due to a change in control, and option acceleration in the event of a change in control, as set forth in the Change of Control Agreement between Executive and the Company dated July 17, 2003 and (ii) amends and restates the Agreement between the Company and the Executive dated November 2, 2006.

17. Notices. Any notices required or permitted to be sent under this Agreement are to be delivered by hand or mailed by registered or certified mail, return receipt requested, and addressed as follows:

If to the Company:

Lionbridge Technologies, Inc.
1050 Winter Street, Suite 2300
Waltham, MA 02451

If to Executive:

     
     
     

Either party may change its address for receiving notices by giving notice to the other party.

1

In witness whereof, the parties hereto have executed this Agreement as of the date set forth above.

     

[Executive]

LIONBRIDGE TECHNOLOGIES, INC.

By:     
Rory J. Cowan
President and Chief Executive Officer

2

Exhibit A

“Change of Control” means the occurrence of any of the following events:

(1) any Person becomes the owner of 25% or more of the Company’s Common Stock and a majority of the members of the Board of Directors make a determination that a change of control has occurred; or

(2) individuals who, as of the Effective Date, constitute the Board of Directors of the Company (the “Continuing Directors”) cease for any reason to constitute at least a majority of such Board; provided, however, that any individual becoming a director after 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 Continuing Directors will be deemed to be a Continuing Director, but excluding for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the Securities and Exchange Act of 1934 (the “Exchange Act”)) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(3) consummation of a reorganization, merger, consolidation or other transaction that will result in the transfer of ownership of more than 50% of the Company’s Common Stock; or

(4) liquidation or dissolution of the Company or sale of substantially all of the Company’s assets.

In addition, for purposes of this definition the following terms have the meanings set forth below:

“Common Stock” means the then outstanding Common Stock of the Company plus,
for purposes of determining the stock ownership of any Person, the number of unissued shares of Common Stock which such Person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) upon the exercise of conversion rights, exchange rights, warrants or options or otherwise. Notwithstanding the foregoing, the term Common Stock does not include shares of preferred stock or convertible debt or options or warrants to acquire shares of Common Stock (including any shares of Common Stock issued or issuable upon the conversion or exercise thereof) to the extent that the Board expressly so determines in any future transaction or
transactions.

A Person will be deemed to be the “owner” of any Common Stock of which such Person would be the “beneficial owner,” as such term is defined in Rule 13d-3 promulgated by the Securities and Exchange Commission under the Exchange Act.

“Person” has the meaning used in Section 13(d) of the Exchange Act, except that “Person” does not include (i) the Executive, an Executive Related Party, or any group of which the Executive or Executive Related Party is a member, or (ii) the Company or a wholly owned subsidiary of the Company or an employee benefit plan (or related trust) of the Company or of a wholly owned subsidiary.

An “Executive Related Party” means any affiliate or associate of the Executive other than the Company or a subsidiary of the Company. The terms “affiliate” and “associate” have the meanings given in Rule 12b-2 under the Exchange Act; the term “registrant” in the definition of “associate” means, in this case, the Company.

3