Exhibit 10.1
CONSULTING
AGREEMENT
This Consulting Agreement, dated as
of July 30, 2008 (“Agreement”), is by and between
Parametric Technology Corporation, a Massachusetts corporation
having its principal business address at 140 Kendrick Street,
Needham, MA 02494 (“PTC”), and Michael E. Porter,
having a business address at Harvard Business School,
Soldier’s Field Road, Ludcke House, Boston, MA 02163
(“Consultant”).
ARTICLE 1
SERVICES TO BE PERFORMED BY
CONSULTANT
1.1 Services.
Consultant is engaged to provide the
following consulting services (the “Services”) to PTC
in connection with strategic initiatives with respect to
PTC’s business and its products:
(a) Strategic Planning
Services . Strategic planning sessions with PTC executives,
with such sessions to be on a periodic basis as mutually agreed
from time to time.
(b) Executive Management
Seminars . Consultant will assist PTC in the development of and
participate in executive management seminars sponsored by PTC as
mutually agreed from time to time.
1.2 Oversight.
PTC and Consultant will mutually
determine the methods and means Consultant will use to perform the
services to be carried out for PTC.
ARTICLE 2
COMPENSATION AND EXPENSES
2.1 Compensation.
(a) Strategic Planning
Services . For the strategic planning Services described in
Section 1.1(a) above, PTC shall issue to Consultant a one-time
grant of PTC’s common stock, $.01 par value per share, as an
award of restricted stock pursuant to PTC’s 2000 Equity
Incentive Plan in an amount equal to $40,000 on date of grant
(based on the closing price of PTC’s common stock on such
date, the “Shares”), the restrictions on which shall
lapse in their entirety on the one year anniversary of the grant
date or as otherwise set forth in the form of Restricted Stock
Agreement attached hereto as Appendix A .
(b) Executive Management
Seminars . For executive management seminars in which
Consultant assists in the development of and participates in from
time to time after the date of this Agreement, PTC shall pay
Consultant a fee of $15,000 for each such executive management
seminar.
(c) Taxes; No Withholding .
Consultant shall have sole responsibility for payment of all
federal, state and local taxes or contributions imposed or required
under unemployment insurance, social security and income tax laws
and for filing all required tax forms with respect to any amounts
paid by PTC to Consultant hereunder.
(d) No Warranty . PTC makes
no representation, warranty or covenant with respect to the
performance of PTC’s common stock or the Shares. Consultant
understands, acknowledges and agrees that the Shares, which
constitute the only compensation payable hereunder for strategic
planning Services as described in Section 1.1(a), may not
increase in value and may decrease in value and may be worth less
than $40,000 on the date the restrictions on the Shares
lapse.
2.2 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 3
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.
ARTICLE 4
CONFIDENTIALITY AND INTELLECTUAL PROPERTY
RIGHTS
4.1 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.
4.2 Ownership of Work
Product. Consultant
hereby assigns to the Company, for no additional consideration, all
Consultant’s rights, including copyrights, in all
deliverables and other works prepared by Consultant under this
Agreement. Consultant shall, and shall cause his agents to,
promptly sign and deliver any documents and take any actions that
the Company reasonably requests to establish and perfect the rights
assigned to the Company under this Section 4.2.
ARTICLE 5
TERM AND TERMINATION
5.1 Term. This Agreement will remain in full force and
effect until the earlier of (a) August 1, 2009 or
(b) the date the Agreement is terminated in accordance with
the provisions of Section 5.2 hereof.
5.2 Termination of
Agreement.
(a) By Consultant .
Consultant may terminate this Agreement at any time upon thirty
(30) days’ advance written notice to PTC.
(b) By PTC without Cause .
PTC may terminate this Agreement without Cause (as defined in
Section 5.2(c) below) effective immediately at any time upon
written notice to Consultant.
(c) By PTC for Cause . PTC
may terminate this Agreement for Cause (as defined below),
effective immediately upon written notice to Consultant that, in
the good faith judgment of the Board, (1) an
2
event constituting Cause 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. “Cause” means
(i) Consultant shall have willfully committed an act of
dishonesty or breach of trust, or willfully acted in a manner which
is inimical or injurious to the business or interest of PTC,
(ii) Consultant shall have willfully violated or breached any
of the provisions of this Agreement and such violation or breach
resulted in demonstrable injury to PTC and was not remedied within
thirty (30) days of receipt of written notice of such
violation or breach, if remediable, (iii) Consultant’s
act or omission to act has resulted in or was intended to result in
gain to or personal enrichment of Consultant at PTC’s
expense, or (iv) Consultant shall have been convicted of a
felony or any crime involving larceny, embezzlement or moral
turpitude.
5.3 Effect of
Termination.
(a) Services . Upon
termination of this Agreement, Consultant shall be relieved of
performing the Services set forth in Section 1.1, except for
such seminars under Section 1.1(b) as have been scheduled
prior to the termination date.
(b) Shares . If this
Agreement is terminated by Consultant pursuant to
Section 5.2(a) or by PTC pursuant to Section 5.2(c), all
Shares upon which the restrictions have not yet lapsed by the date
of such termination shall be forfeited and returned to PTC in
accordance with the terms of the Restricted Stock Agreement. If
this Agreement is terminated by PTC pursuant to
Section 5.2(b), the restrictions on the Shares shall
automatically lapse in accordance with the terms of the Restricted
Stock Agreement.
5.4 Survival.
In the event of any termination of
this Agreement, Articles 4 and 6 hereof shall survive and continue
in effect.
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 in the
case of notice to the Company, shall be addressed to the General
Counsel) 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
