Exhibit 10.20
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into effective as of
, 1999 by and between Mission Critical Software, Inc., a Delaware
corporation ("MCS"), and , a resident of (the "Consultant").
RECITALS:
WHEREAS, prior to the Consultant has been involved with MCS as a member
of the Board of Directors and formerly as an executive officer;
WHEREAS, effective , (i) the Consultant has resigned from his position as a
member of the Board of Directors of MCS and (ii) MCS and the Consultant desire
for the Consultant to continue as a Service Provider in appreciation of the
Consultant's past services and as consideration for the covenants contained
herein;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, MCS and the Consultant hereby agree as follows:
ARTICLE I
Resignation
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1.1 The Consultant's hereby resigns his position as a member of the Board of
Directors of MCS effective as of . In consideration for this
Agreement, MCS shall provide the Consultant with the benefits outlined in
Section 1.2 of this Agreement and the consulting arrangement set forth in
Article II of this Agreement. In consideration of the benefit package
provided herein, the Consultant shall abide by the covenants herein.
1.2 On , the Consultant was granted stock options under the MCS 1997
Stock Option Plan (the "Plan") to purchase shares of the MCS Common
Stock ("MCS Common Stock"), which vest over a four-year period starting on
. This grant was evidenced by that certain Stock Option Agreement
No. (the "Option Agreement"). These stock options are hereafter referred
to as the "Stock Options". During the term of this Consulting Agreement,
such Stock Options shall continue to vest on the terms set forth in the
Option Agreement and the Plan as long as the Consultant continues to
provide services to MCS hereunder.
1.3 MCS shall not be obligated to provide any other benefits other than those
provided for by this Agreement.
ARTICLE II
Consulting Arrangement
----------------------
2.1 The term of this consulting arrangement shall begin and shall
terminate on . During the term of this consulting arrangement,
the Consultant shall advise the management of MCS with respect to the
operation and management of MCS and shall perform such duties and render
such advise as shall be mutually agreeable to MCS and the Consultant.
During the term of this Agreement, the Consultant agrees that he will serve
MCS faithfully, diligently and to the best of his ability under the
direction of the Chief Executive Officer of MCS and will promote and
further the interests of MCS consistent with the terms hereof.
2.2 In consideration of the services to be performed by the Consultant under
this consulting arrangement, the Consultant shall receive the benefits set
forth in Section 1.2 hereof. Any travel or other expenses to be incurred by
the Consultant in performing consulting services requested by MCS from time
to time must be pre-approved in writing by the Chief Executive Officer or
Chief Financial Officer of MCS.
ARTICLE III
Nondisclosure and Noncompetition Covenants
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3.1 a. The Consultant agrees that during the term of his consulting arrangement
set forth in Article II hereof, he shall not, without MCS' prior written
consent, as a principal, employee, consultant, partner, or stockholder of,
or in any other capacity with, any "business enterprise" (as that term is
defined below) (other than in any capacity as a holder of not more than 1%
of the combined voting power of the outstanding stock of a publicly held
company) engage in competition with MCS or develop, market, sell, and/or
distribute products or services competitive with those of MCS. As used
herein, the term "business enterprise" shall mean any corporation,
partnership, association, sole proprietorship or any other entity competing
with MCS or directly involved in the development, marketing, sales, and/or
distribution of products or services which are competitive with the
products and services developed and marketed by MCS. The Consultant further
agrees that he will not in any way, directly or indirectly, represent
himself or anyone in his employment as being representatives of MCS. In
consideration for this covenant, MCS has provided and may provide the
Consultant with confidential information designed to assist the Consultant
in performing any consulting services pursuant to Article II, which
confidential information the Consultant has previously agreed herein not to
disclose or use except to the benefit of MCS and to return to MCS
immediately upon resignation or termination of the Consultant's employment
with MCS or upon termination of the term of the consulting arrangement,
whichever is later.
b. The Consultant agrees that during the term of the consulting arrangement
set forth in Article II hereof he will not recruit, solicit, or assist
others in recruiting or soliciting, the employment of any person who is at
that time an employee of MCS or any of its affiliates, or otherwise
interfere with MCS's lawful employment relationship with any of its
employees.
c. The Consultant hereby agrees that he will not disclose, publish, or
disseminate any Confidential Information to anyone, and the Consultant
agrees to use his best efforts to prevent any unauthorized use, disclosure,
publication, or dissemination of any Confidential Information. The
Consultant also agrees not to use Confidential Information for his own or
any third party's
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benefit without the prior written approval of an authorized representative
of MCS in each instance. Within ten business days of receipt of MCS's
written request, the Consultant will return to MCS all documents, records
and copies thereof, containing Confidential Information fixed in any
tangible medium, and in any form or format. "Confidential Information"
means any MCS proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans, products,
services, customers, customer lists, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, finances or
other business information disclosed by MCS either directly or indirectly
in writing, orally or by drawings or inspection of parts or equipment.
3.2 Subject to the requirements of any applicable securities or other laws, the
Consultant agrees that he shall not at any time make any statement or
representation, written or oral, which the Consultant knows or should know
will, or which he knows or should know is reasonably likely to, impair or
adversely affect in any way the reputation, goodwill, business, client,
customer or supplier relationships, public relations, or public market for
securities of MCS or any of its Affiliates.
ARTICLE IV
Additional Covenants
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4.1 The Consultant and MCS agree to keep confidential and to not disclose any
settlement negotiations between them, including the terms of this
Agreement. If the Consultant violates the terms of this Agreement, the
Consultant shall forfeit immediately to MCS the settlement consideration of
the additional compensation paid to the Consultant in accordance with this
Agreement.
4.2 The Consultant warrants that he is of legal age and sound mind and is
legally competent to execute this Agreement and does execute this Agreement
without duress. Each signatory warrants that he executes this Agreement of
his own free will and accord, without reliance on any statement, act, or
representation of any kind or character not expressly set forth herein. The
Consultant acknowledges that he has had adequate time to review and
consider this Agreement, and, as a result, enters into this Agreement
willingly and voluntarily.
4.3 The Consultant hereby agrees to sign the Lock-up Agreement required of all
major stockholders by Xxxxxxxxx & Xxxxx ("H&Q") in connection with an
initial public offering of MCS capital stock.
ARTICLE V
Miscellaneous
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5.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas, irrespective of the conflict of laws rules. If
MCS and the Consultant disagree with respect to whether the Consultant or
MCS breached any of the terms or conditions of this Agreement, or if either
MCS or the Consultant has a controversy, claim, or dispute against the
other arising out of or related to the terms and conditions of the
Consultant's employment with MCS and/or the breach of any term or condition
of the Consultant's employment with MCS, the disagreement shall be settled
exclusively by binding arbitration in accordance with the Texas General
Arbitration Act and the applicable rules and procedures of the American
Arbitration Association.
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Judicial proceedings may be commenced only to force arbitration or to
enforce the results of arbitration; provided that such prohibition shall
not apply in the event that a court-ordered injunction is an appropriate
remedy for a breach of either party's obligations of confidentiality or for
an infringement by either party of the intellectual property rights of the
other party. No arbitration shall commence later than twenty-five (25) days
before the expiration of the applicable statute of limitations. The
arbitration shall be held in Houston, Texas before a panel of three
arbitrators selected in accordance with the Commercial Rules of the
American Arbitration Association, each of whom shall be licensed to
practice law. Each party shall bear its own expense of arbitration, unless
otherwise determined by the arbitrator. The arbitrator may award pre-award
interest but shall not award punitive damages. The parties will cooperate
in good faith to begin the final arbitration hearing within 60 days after
an arbitration claim is filed, or as soon thereafter as practicable.
5.2 The Consultant has been advised to discuss this Agreement with an attorney
of his choice before signing it, and is freely and voluntarily signing this
document in exchange for the promises and consideration provided by MCS
under this Agreement. The Consultant and MCS further acknowledge that no
provisions hereof shall be construed against either the Consultant or MCS
by virtue of the activities of such party or its attorney in the
preparation and execution of this Agreement.
5.3 This Agreement and the agreements attached hereto as exhibits supersede all
prior written or oral agreements or understandings between the Consultant
and MCS, its officers, directors, employees, subsidiaries, parent, and
affiliated entities, relating to the Consultant's provision of services for
MCS after the date hereof. This Agreement and the agreements attached
hereto as exhibits represent the full understanding between the Consultant
and MCS regarding the subject matter hereof, and no parol evidence shall be
relevant to supplement or explain this Agreement or the agreements attached
hereto as exhibits.
5.4 This Agreement is intended to be performed in accordance with, and only to
the extent permitted by, all applicable legal requirements. If any
provision of this Agreement or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the remainder of the Agreement in which such
provision is contained nor the application of such provision to other
persons or circumstances shall be affected thereby; but, rather, this
Agreement shall be enforced to the greatest extent permitted by law.
IN WITNESS WHEREOF, the undersigned have executed this Consulting Agreement
effective as of _________.
________________________________
MISSION CRITICAL SOFTWARE, INC.
By: ______________________________________
Xxxxxxx X. Xxxxxxx, President and CEO
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ACKNOWLEDGEMENT
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STATE OF TEXAS )
)
COUNTY OF )
BEFORE ME, the undersigned authority, on this day personally appeared
____________________, known to me to be the person who executed the foregoing
instrument.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _____________ day of
____________________, 199____.
______________________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
MY COMMISSION EXPIRES: ____________
STATE OF TEXAS )
)
COUNTY OF XXXXXX )
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxxxx X. Xxxxxxx of Mission Critical Software, Inc., known to me to be the
person who executed the forgoing instrument, and he acknowledged to me that such
corporation executed the same, as the act and deed of said corporation and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this _____________________ day of
__________________________, 199__.
______________________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
MY COMMISSION EXPIRES: ____________
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