Exhibit 10.3
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement"), is made and entered into
as of this 17th day of November, 1995, by and between PARAMETRIC TECHNOLOGY
CORPORATION, a Massachusetts corporation, having a principal place of business
at 128 Technology Drive, Waltham, MA 02154 (hereinafter "PTC"), and MICHAEL E.
PORTER, an individual residing at 147 Chestnut Hill Road, Chestnut Hill, MA
02167 (hereinafter "Consultant").
ARTICLE 1
TERM AND TERMINATION
1.1 Term. This Agreement will become effective on the date first
shown above and will remain in full force and effect unless and until terminated
in accordance with the provisions of Section 1.2 hereof.
1.2 Termination of Agreement.
(a) Consultant may, at his sole option, terminate this Agreement, at
any time, upon thirty (30) days' advance written notice to PTC.
(b) PTC may terminate this Agreement for Cause (as defined below),
effective immediately upon notice to Consultant that, in the good faith judgment
of the Board, (1) an event constituting Cause for termination has occurred, and
(2) either Consultant had a reasonable opportunity to take remedial action but
failed or refused to do so, or an opportunity to take remedial action would not
have been meaningful or appropriate under the circumstances. For purposes of
this Section 1.2, "Cause" shall mean: (i) Consultant willfully commits an act
of dishonesty or breach of trust, or willfully acts in a manner which is
inimical or injurious to the business or interest of PTC, (ii) Consultant
willfully violates or breaches any of the provisions of this Agreement and such
violation or breach results in demonstrable injury to PTC and has not been
remedied within thirty (30) days of receipt of written notice of such violation
or breach, (iii) Consultant's act or omission to act results in or is intended
to result in gain to or personal enrichment of Consultant at PTC's expense, or
(iv) Consultant is convicted of a felony or any crime involving larceny,
embezzlement or moral turpitude.
1.3 Effect of Termination. Upon termination of this Agreement, the
Option, to the extent not yet exerciseable at the date of such termination
(according to the Exerciseability Schedule contained within the Stock Option
Agreement dated November 17, 1995 between PTC and the Contractor (the "Stock
Option Agreement")), shall be canceled as to any such shares effective on the
date of such termination. For purposes of this Article 1, the term "Option"
shall mean that certain option to purchase 4,000 shares of PTC's common stock,
$.01 par value per share, evidenced by the Stock Option Agreement.
1.4 Survival. In the event of any termination of this Agreement,
Articles 5 and 6 hereof shall survive and continue in effect.
ARTICLE 2
INDEPENDENT CONTRACTOR STATUS
It is the intention of the parties that Consultant be an independent
contractor and not an employee, agent, joint venturer, or partner of PTC.
Nothing in this Agreement shall be interpreted or construed as creating or
establishing the relationship of employer and employee between PTC and either
Consultant or any employee or agent of Consultant. Consultant shall retain the
right to perform work for others during the terms of this Agreement, provided
such work does not otherwise violate the provisions of Article 5 of this
Agreement. PTC shall retain the right to cause work of the same or a different
kind to be performed by its own personnel or other contractors during the term
of this Agreement.
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ARTICLE 3
SERVICES TO BE PERFORMED BY CONSULTANT
Consultant is engaged to provide consulting services to PTC in
connection with strategic growth methods and alternatives with respect to PTC's
business and its products and to analyze opportunities within PTC's market and
the industry generally. PTC and Consultant will mutually determine the methods
and means Consultant will use to perform the work to be carried out for PTC. PTC
shall be entitled to exercise a broad general power of supervision and control
over the results of work performed by Consultant.
ARTICLE 4
COMPENSATION AND EXPENSES
4.1 Compensation; Option. Consultant shall receive the Option in lieu
of all other compensation, whether cash or otherwise. Consultant affirmatively
acknowledges that he will not receive cash or any other compensation in
connection with the services. PTC makes no representation, warranty or covenant
with respect to the Option or PTC's common stock. Consultant understands,
acknowledges and agrees that he may never realize any value from the Options,
which constitute the only compensation payable hereunder, and that any value
that he may realize on such Options will be directly tied to performance of
PTC's common stock, which performance is not guaranteed or warranted by PTC.
4.2 Expenses. PTC shall reimburse Consultant for all reasonable, out-
of-pocket expenses incurred by Consultant in connection with the performance of
the services hereunder by providing PTC with a written request for reimbursement
accompanied by such written documentation as may be reasonably requested by PTC
to support the amount and validity of such expense.
ARTICLE 5
CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
5.1 Confidentiality. Consultant shall maintain in strict confidence,
and shall use and disclose only as authorized by PTC, all information of a
competitively sensitive or proprietary nature that he receives in connection
with the work performed for PTC hereunder. Consultant agrees that, by its
nature, the services to be performed hereunder, and any information gathered or
compiled in connection therewith, is of a competitively sensitive nature which
must be maintained in the strictest of confidence. These restrictions shall not
be construed to apply to (1) information generally available to the public; (2)
information released by PTC generally without restriction; (3) information
independently developed or acquired by Consultant without reliance in any way on
other protected information of PTC; or (4) information approved in advance in
writing for the use and disclosure of Consultant without restriction.
Notwithstanding the foregoing restrictions, Consultant may use and disclose any
information (a) to the extent required by an order of any court or other
governmental authority or (b) as necessary for him to protect his interest in
this Agreement, but in each case only after PTC has been so notified in advance
in writing and has had the opportunity, if possible, to obtain reasonable
protection for such information in connection with such disclosure.
5.2 Ownership of Work Product. The reports, writings, documents and
other work product that Consultant produces during the course of performing the
services under this Agreement (collectively, the "Work Product") shall belong to
PTC and shall, to the extent possible, be considered a work made for hire for
PTC within the meaning of Title 17 of the United States Code. PTC shall have a
copyright in all such Work Product and Consultant shall take such actions as may
be reasonably requested by PTC to vest in PTC all rights of ownership in such
copyright(s).
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ARTICLE 6
GENERAL PROVISIONS
6.1 Notices. Any notices to be given hereunder by either party to the
other shall be delivered to the address set forth in the introductory paragraph
of this Agreement and may be effected either by personal delivery in writing or
by mail, registered or certified, postage prepaid with return receipt requested.
Notices delivered personally will be deemed communicated as of actual receipt.
Mailed notices will be deemed communicated as of two days after mailing.
6.2 Entire Agreement of the Parties. This Agreement supersedes any
and all agreements, either oral or written, between the parties hereto with
respect to the rendering of services by Consultant for PTC and contains all the
covenants and agreements between the parties with respect to the rendering of
such services in any manner whatsoever.
6.3 Partial Invalidity. If any provision in this agreement is held by
a court of competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions will nevertheless continue in full force without being
impaired or invalidated in any way.
6.4 Parties in Interest. This Agreement is enforceable only by
Consultant and PTC. The terms of this Agreement are not a contract or assurance
regarding compensation, continued employment, or benefit of any kind to
Consultant, or any beneficiary of Consultant, and neither Consultant, nor any
such beneficiary thereof, shall be a third-party beneficiary under or pursuant
to the terms of this Agreement.
6.5 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts.
6.6 Successors. This Agreement shall inure to the benefit of, and be
binding upon, Consultant and PTC, and their permitted successors and assigns.
This Agreement, and the rights and obligations hereunder, may not be assigned,
nor may the duties be delegated by Consultant. PTC may assign this Agreement,
and the rights and obligations hereunder, and may delegate the duties, to any
entity that controls, is controlled by, or is under common control with PTC, or
to any purchaser or other transferee of all or substantially all of PTC's assets
or business.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
CONSULTANT
/S/ Michael E. Porter
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Michael E. Porter
Society Security Number: ###-##-####
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PTC PARAMETRIC TECHNOLOGY CORPORATION
By: /S/ Steven C. Walske
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Name: Steven C. Walske
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Title: Chairman and Chief Executive Officer
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