Exhibit 10.9
CONSULTING
AGREEMENT
This Consulting Agreement, dated as
of November 19, 2009 (“Agreement”), is by and
between Parametric Technology Corporation, a Massachusetts
corporation having its principal business address at
140 Kendrick Street, Needham, Massachusetts 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:
(a) Strategic Consulting
Services . Consultant shall engage in not fewer than four
strategic consulting sessions with PTC executives per year (and at
least one per quarter), which sessions shall include review of such
documents as may be provided to Consultant by the executive(s) and
discussion of the strategic issues desired to be addressed by such
executive(s). Consultant shall provide his perspective and advice
with respect to corporate strategy, market positioning and
marketing for PTC and its products and services and assist PTC in
developing approaches and materials to support the same, including
the preparation of “white papers” and strategy
statements. Such sessions shall be held at such times as may be
mutually agreed between the Consultant and the
executive(s).
(b) Speaking and Management
Seminar Events . Consultant will speak at, participate in, and
assist in the development of 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;
Expenses.
(a) Strategic Consulting
Services . For the strategic consulting 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 under PTC’s 2000 Equity Incentive
Plan in an amount equal to approximately $200,000 on date of grant
(based on the closing price of PTC’s common stock on such
date, the “Shares”), the restrictions on half of which
Shares shall lapse on the one year anniversary of the grant date
and the restrictions on the remaining half of which Shares shall
lapse on the two 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
and Events .
(i) Events other than PTC
Corporate Visitor Center Events . For each event in which the
Consultant participates from time to time after the date of this
Agreement other than those contemplated by Section 2.1(b)(ii)
below, PTC shall pay Consultant a fee of $30,000.
For each event in which the
Consultant participates on behalf of PTC in connection with a trip
or an event previously established by the Consultant (a
“Consultant Planned Event”), PTC shall pay all
reasonable, incremental out-of-pocket expenses
incurred by the Consultant in
connection with such PTC event, such expenses to be only the
expenses associated with the PTC event incremental to those of the
Consultant Planned Event.
For each PTC-initiated event in
which the Consultant participates on behalf of PTC (other than a
Consultant Planned Event), PTC shall pay all reasonable,
out-of-pocket expenses incurred by the Consultant in connection
with such PTC event.
Consultant shall be reimbursed for
expenses incurred by Consultant in connection with this Agreement
only as provided in this Section 2.1(b)(i). All requests for
reimbursement shall be in writing and accompanied by such written
documentation as may be reasonably requested by PTC to support the
amount and validity of such expense.
(ii) PTC Corporate Visitor Center
Events . For each event in which the Consultant participates
from time to time after the date of this Agreement at PTC’s
Boston-area Corporate Visitor Center, PTC shall pay Consultant a
fee of $15,000.
2.2 Compensation Limit
. In no event shall the aggregate
amount of fees to be paid to Consultant under Section 2.1(b)
of this Agreement, exclusive of any expense reimbursements, exceed
$200,000.
2.3 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.
2.4 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 consulting Services as described in
Section 1.1(a), may not increase in value, may decrease in
value and may be worth less than $200,000 on the date the
restrictions on the Shares lapse.
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 4 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
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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) November 19, 2011 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 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
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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
