CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into
as of February 1, 2000 (the "Effective Date"), between ObjectSpace, Inc., a
Delaware corporation (the "Company"), and Graham Glass, an individual residing
in the State of Texas (the "Consultant").
BACKGROUND:
A. The Consultant is the former Chief Technology Officer of the
Company, and has extensive knowledge of the business, operations and affairs
of the Company.
B. The Company desires to obtain the services of the Consultant and
the Consultant is willing to furnish his personal services upon the terms and
conditions set forth in this agreement.
AGREEMENTS:
In consideration of the mutual promises set forth in this Agreement,
the parties agree as follows:
1. CONSULTING SERVICES. The Company agrees to retain the Consultant
as an independent contractor and not as an employee of the Company in an
advisory and consultative capacity during the term of this Agreement (the
"Consulting Period"). During the Consulting Period, the Consultant will
consult with the Company and use his efforts to assist the Company by
performing such tasks as designated by the Company's President, from time to
time. The parties anticipate that these tasks will be similar to those tasks
Consultant performed while employed by the Company. Consultant acknowledges
that he will be provided with updated confidential and proprietary information
and trade secrets of the Company during the course of his performing his
services as a Consultant and after the execution of this Agreement.
The obligation of the Consultant to perform services for the Company
will not preclude the Consultant from engaging in any business, employment or
occupation not expressly prohibited by SECTION 7 below, and the Company will
schedule the Consultant's performance of his obligations under this Agreement
to accommodate such other business, employment or occupation. The Consultant
agrees not to enter into contracts on behalf of the Company, or bind the
Company to future commitments without the written approval of the President of
the Company.
2. CONSULTING PERIOD. The Consulting Period will begin on the
Effective Date and will terminate on January 31, 2001 (the "Expiration Date"),
unless otherwise extended or terminated pursuant to the terms of this
Agreement.
3. COMPENSATION. As compensation for services rendered to the
Company, the Company agrees to pay to the Consultant a retainer of 14,583.33
per month, payable on the fifteenth and last business day of each month during
the term (the "Consulting Payment").
4. PRIMARY LOCATION OF CONSULTANT'S PERFORMANCE; OFFICE. The parties
contemplate that the Consultant's performance hereunder will require the
Consultant's presence primarily in Dallas, Texas.
6. EXPENSES. The Company agrees to pay or reimburse the Consultant
for reasonable expenses incurred or paid by the Consultant, upon presentation
of expense statements or vouchers and such other information as the Company
may reasonably require; PROVIDED that such expenses have been approved, orally
or in writing and in advance, by the Company.
7. INVENTIONS. The Consultant agrees to disclose promptly, completely
and in writing to the Company any invention, discovery, process, design,
diagram, method, apparatus or improvement, whether patentable or not, whether
implemented or not, which the Consultant develops or discovers individually or
with others during the performance of his services for the Company, or using
or influenced by the Company's time, data, facilities or materials
("Inventions"). The Consultant agrees that all Inventions are the Company's
exclusive property, whether or not patent applications are filed on them.
The Consultant agrees to assist the Company at any time, during or
after the Consulting Period, at the Company's expense (including payment for
the Consultant's time at the rate set forth in Section 3 above), in the
preparation, execution and delivery of any disclosures, patent applications or
papers required to obtain patents for Inventions, and in connection with any
other proceedings that may be necessary to enforce the Company's rights in
Inventions against others or to vest title to them in the Company.
The Company and the Consultant acknowledge and agree that any
invention, discovery, process, design, diagram, method, apparatus or
improvement, whether patentable or not, whether implemented or not, that is
developed or discovered by the Consultant independent of the Company, its
agents and employees, and its time, data, facilities or materials, are
expressly excluded from the definition of Inventions, and will be the
exclusive property of the Consultant ("Consultant's Property").
The Company agrees to document in writing each topic discussed with
the Consultant, and Consultant agrees that such document will be conclusive
evidence of the Company's rights in any Inventions relating to or developed
from those discussions or topics.
8. COPYRIGHTS. The Consultant agrees that the Company will be the
copyright proprietor in all copyrightable works created or developed by the
Consultant individually or with other pursuant to the Consulting Services.
The Consultant further agrees, if so requested and at no further
expense to the Company, to execute in writing any acknowledgements or
assignment of copyright ownership of works within this Agreement as may be
necessary for the preservation of the worldwide proprietorship in the Company
of such copyrights.
9. PROTECTION OF THE COMPANY'S INTEREST.
(a) Non-Compete. During the Consulting Period, the Consultant
agrees that he will not own or have any interest in, or act as a
manager, officer, director, executive, consultant, agent or
representative of, or assist in any way or in any capacity, any
person, firm, association, partnership, corporation, limited
liability company, or other entity that (i) manufactures, distribute
or sells products in competition with the Company's Products (as
hereinafter defined), anywhere within North America, or (ii) solicit
business in competition with the Company from (y) any of the
Company's customers who transacted business with the Company during
the one year period prior to the Effective Date with whom the
Consultant or his direct reports had contact while Consultant was
employed by the Company, or (z) any of the Company's potential
customers with whom the Consultant or his direct reports had contact
while Consultant was employed by the Company. As used herein,
"Company's Products" means the same or similar products or services
as the Company currently provides, including, but not limited to a
line of "middleware" products known as "Voyager" and object-oriented
consulting and training services. The Consultant acknowledges and
agrees that the Company sells the Company's Products throughout North
America and , therefore, the geographic scope of the restriction
contained herein is both reasonable and necessary under the
circumstances.
(b) Non-Solicitation. During the Consulting Period and for a
one year period thereafter, the Consultant will not directly or
indirectly, whether for himself or any other person or entity, employ,
hire, solicit or try to entice away any person who (i) was an employee
or independent contractor of the Company during Consultant's prior
employment with the Company, or (ii) was employed by any of the
Company's customers and with whom the Consultant or his direct reports
had contact while Consultant was employed by the Company.
(c) Confidential Information. The Consultant acknowledges
that the Company's trade secretes, proprietary information and
know-how are valuable, special and unique assets of the Company's
business, access to and knowledge of which are essential to the
performance of the Consulting Services hereunder. The Consultant
agrees to keep confidential, except as the President of the Company
may otherwise consent in writing, and not to disclose, or may any use
of except for the benefit of the Company, at any time either during
or after the Consulting Period, any trade secrets, proprietary
information or know-how of the Company, including, but not limited
to, that which relates to the Company or the Company's research,
services, development, processes, designs, formulas, test data,
purchasing, accounting, customer lists, business plans, marketing
plans and strategies, pricing strategies, internal operating
procedures, written materials provided to third parties by agreement,
implementation techniques of the Company's programs, or other subject
matter pertaining to any business of the Company or any of its
clients, customers, consultants, licensees, or affiliates that the
Consultant may produce, obtain or otherwise acquire during the
Consulting Period, except as provided herein. The Consultant further
agrees not to deliver or allow to be delivered trade secrets,
proprietary information or know-
how to third parties without the consent of an authorized
representative of the President of the Company.
10. INJUNCTIVE RELIEF. In the event of a breach or threatened breach
by the Consultant of the provisions of SECTION 9 of this Agreement, the
Consultant acknowledges and agrees that such a breach or threatened breach
will cause irreparable injury to the Company for which an adequate remedy is
not available at law. Therefore, the parties hereto agree that the Company
shall be entitled, without the posting of any bond, to an injunction
restraining the Consultant, in whole or in part, from such breach or
threatened breach. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to the Company for such
breach or threatened breach at law or in equity, including the recovery of
damages from the Consultant. The Consultant acknowledges that the possible
restrictions on his activities which may occur as a result of the performance
of his obligations under SECTION 9 of this Agreement are reasonably required
for the protection of the Company and its investments.
11. EMPLOYMENT AGREEMENT. The Consultant acknowledges and agrees that
the terms and conditions of this Agreement do not modify or amend the
continuing obligations of the Consultant under that certain Employment
Agreement dated as of December 30, 1998, between the Company and the
Consultant.
12. PAYMENT DEFAULT; INTEREST. Any past due consulting compensation
shall accrue interest beginning thirty days after such payment becomes past
due at a rate equal to one and one-half percent of such past due amount per
month. Interest shall be calculated on the basis of 30-day months and a
360-day year. In the event the Company fails to pay the consulting fee within
30 days after such fee is due, Consultant may declare to be due all consulting
fees payable during the remainder of the Consulting Period.
13. MISCELLANEOUS.
(a) NOTICES. All notices, requests or other communications
with respect to this Agreement must be in writing and personally
delivered or mailed, postage prepaid, certified or registered mail, or
delivered by a nationally recognized express courier service, charges
prepaid, to the following addresses (or such other addresses as the
parties may specify from time to time in accordance with this
Section):
Company: ObjectSpace, Inc.
00000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx
Fax No: (000) 000-0000
Consultant: Graham Glass
Any such notice will, when sent in accordance with the preceding
sentence, be deemed to have been given and received (i) on the day
personally delivered, (ii) on the third day following the date mailed,
or (iii) on the first business day following shipment by such courier
service.
(b) ENTIRE AGREEMENT. This Agreement supersedes any and all
other agreements between the Company or any affiliate of the Company
and the Consultant regarding the Consultant's services and contains
all of the covenants and agreements between such parties with respect
to such matters. Any modification of this Agreement will be effective
only if it is in writing signed by each of the parties hereto.
(c) WAIVER. The waiver by the Company of a breach of any
provision of this Agreement by the Consultant shall not operate or be
construed as a waiver of any subsequent breach by the Consultant. The
waiver by the Consultant of a breach of any provisions of this
Agreement by the Company shall not operate or be construed as a waiver
of any subsequent breach by the Company.
(d) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, without
regard to principles of conflicts of laws.
(e) SEVERABILITY. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be
judicially unenforceable or invalid by a court of competent
jurisdiction, in whole or in part, the remaining provisions will
nevertheless be binding, enforceable and in full force and effect.
Furthermore, in lieu of such unenforceable or invalid provision there
will be added automatically as a part of this Agreement a provision as
similar in terms to such provision as may be possible and be legal,
valid and enforceable.
(f) ASSIGNABILITY. The Consultant may not, without the prior
written consent of the Company, assign, transfer, or convey this
Agreement or any interest herein. This Agreement and all rights and
obligations of the Company are binding upon and inure to the benefit
of its successors and assigns.
(g) ATTORNEY'S FEES. In the event that one of the parties
brings suit against the other party based upon or arising out of a
breach of this Agreement, the parties agree that the party who is
successful on the merits, upon final adjudication from which no
further appeal can be taken or is taken within the time allowed by
law, will be entitled to recover his or its reasonable attorney's fees
and expenses from the party that is not successful.
The undersigned parties have executed this Agreement as of the day and
year first above written.
OBJECTSPACE, INC.
By: /s/ XXXXX XXXXXX
---------------------------
Xxxxx Xxxxxx, President
/s/ GRAHAM GLASS
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Graham Glass
