EXHIBIT 10.1
SYNOPSYS, INC.
CONSULTING SERVICES AGREEMENT
This Amended and Restated Consulting Services Agreement (the "Agreement")
is entered into and effective as of the 1st day of November, 2001 (the
"Effective Date") by and between Synopsys, Inc., a Delaware corporation
("Synopsys"), and A. Xxxxxxx Xxxxxx ("Consultant").
In consideration of the mutual promises hereinafter contained, the parties
agree as follows:
1. STATEMENT OF WORK
1.1 Synopsys agrees to retain Consultant to perform the work as
specified in Exhibit A, Statement of Work (the "Work"), for the
period specified herein. Consultant shall submit to Synopsys, in
written or other tangible form, any deliverables or results of
Consultant's work under this Agreement (the "Results").
1.2 At least once a month, Consultant will report to Synopsys on the
status of the work. On reasonable notice, Synopsys may inspect
Consultant's work in progress and receive copies of it.
2. ACCEPTANCE OF DELIVERABLES
Synopsys will inform Consultant in writing within a
reasonable period of time of receiving a deliverable whether
it accepts or rejects that deliverable. Synopsys may reject
any deliverable which does not comply with the Statement of
Work and/or with Synopsys' standards. If Synopsys fails to
notify Consultant within the specified time, Synopsys will be
deemed to have accepted the deliverable. If Synopsys rejects
it, Synopsys may either terminate the contract pursuant to
Section 7.4, or it may allow Consultant an opportunity to
revise the deliverable to render it acceptable to Synopsys.
3. COMPENSATION
3.1 Compensation for all Work specified herein shall be as specified
in Exhibit B.
3.2 Synopsys agrees to compensate Consultant for all reasonable,
non-local travel expenses, which may be incurred at the request
and with the prior written approval of Synopsys. Lodging and
subsistence expenses will be reimbursed at actual costs, which
should reflect what the going rates are for the particular
location being visited. Rental car expenses for a compact size
car will be reimbursed at actual cost. Materials and the cost of
subcontracts shall not be chargeable to this Agreement.
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3.3 The Compensation specified in Exhibit B and the foregoing
costs and expenses are Consultant's sole compensation for
performing Work for Synopsys.
3.3 Consultant shall provide Synopsys with periodic invoices
detailing compensation, fees, and expense reimbursements, which
Consultant believes are due under this Agreement. Consultant
shall itemize and provide receipts for all expenses invoiced to
Synopsys.
4. CONFIDENTIAL INFORMATION
4.1 Definition Of Confidential Information. Both parties agree that
information disclosed by one party to the other, including but
not limited to information learned from the disclosing party's
employees, agents or through inspection of the disclosing party's
property, that relates to the disclosing party's products,
designs, business plans, business opportunities, finances,
research, development, know-how, personnel, or third-party
confidential information disclosed to the receiving party from
the disclosing party, and the terms and conditions of this
Agreement, will be considered and referred to collectively in
this Agreement as "Confidential Information." Confidential
Information, however, does not include information that: 1) is
now or subsequently becomes generally available to the public
through no fault or breach on the part of receiving party; 2) the
receiving party can demonstrate to have had rightfully in its
possession prior to disclosure by the disclosing party; 3) is
independently developed by the receiving party without the use of
any Confidential Information; or 4) the receiving party
rightfully obtains from a third party who has the right to
transfer or disclose it.
4.2 Nondisclosure And Nonuse Of Confidential Information. The
receiving party agrees that it will not disclose, publish, or
disseminate Confidential Information to anyone other than those
of its employees with a demonstrated need to know, and the
receiving party agrees to take all reasonable precautions to
prevent any unauthorized use, disclosure, publication, or
dissemination of Confidential Information. Recipient agrees to
use Confidential Information solely for the purposes contemplated
by this Agreement and not otherwise for its own or any third
party's benefit without the prior written approval of an
authorized representative of the disclosing party in each
instance. All Confidential Information remains the property of
the disclosing party
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4.3 Synopsys will not solicit or accept confidential information from
Consultant that belongs to any current or former employers.
5. ASSIGNMENT OF RIGHTS AND INTEREST
5.1 Consultant will promptly disclose in writing to Synopsys all
inventions, improvements, designs, formulas, works of
authorship, trade secrets, technology, algorithms, computer
programs, ideas, processes, techniques, know-how and data,
whether or not patentable, that are made, conceived, or first
reduced to practice by Consultant, either alone or jointly
with others, in the course of performing the Work
("Inventions"). Consultant will not disclose Inventions to any
party outside Synopsys absent Synopsys' prior written consent.
5.2 Consultant agrees that all Inventions (including those related
to any Confidential Information) and all Intellectual Property
Rights embodied therein, shall be the sole property of
Synopsys. Consultant agrees to assign and hereby assigns to
Synopsys all right, title and interest in and to Inventions
and related Intellectual Property Rights in any such
Inventions.
5.3 Consultant agrees to perform, during and after the term of
this Agreement, all acts deemed necessary or desirable by
Synopsys to permit and assist it in obtaining, maintaining,
defending, and enforcing Intellectual Property Rights with
respect to such Inventions in any and all countries. Such acts
may include, but are not limited to, execution of documents
and assistance or cooperation in legal proceedings.
5.4 Any assignment of copyright hereunder includes all rights of
paternity, integrity, disclosure and withdrawal and any other
rights that may be known as or referred to as "moral rights"
(collectively "Moral Rights"). To the extent such Moral Rights
cannot be assigned under applicable law, Consultant hereby
forever waives and agrees never to assert any and all Moral
Rights it may have in the Results, even after termination of
the Services. Consultant will confirm any such waivers from
time to time as requested by Synopsys.
5.5 Consultant will complete Exhibit C, listing all intellectual
property existing as of the Effective Date of this Agreement
and to which Consultant claims ownership. If Exhibit C is not
completed, Consultant is representing that there is no
existing Consultant intellectual property as of the Effective
Date of this Agreement.
5.6 Synopsys acknowledges that from time to time Consultant may
have Intellectual Property Rights which Consultant wishes to
incorporate into the Results or which may be necessary for the
utilization by Synopsys of such Results ("Consultant's Related
Rights"). Unless otherwise agreed in advance, Consultant
hereby grants Synopsys, its subsidiaries and affiliates, a
royalty-free, irrevocable, worldwide, nonexclusive, perpetual
license to make, have made, sell, use, disclose, reproduce,
modify, prepare Derivative Works from, distribute, perform and
display Consultant's Related Rights, with full rights to
authorize others to do the same. Consultant will indemnify,
hold harmless and, at Synopsys' request, defend Synopsys, its
subsidiaries and affiliates, from and against all claims,
liabilities, damages, losses and expenses including, but not
limited to reasonable attorneys' fees and costs of suit,
arising out of or in connection with all claims that the use
or disclosure of Consultant's Related Rights violates any
third party's rights.
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6. INDEPENDENT CONTRACTOR STATUS
The relationship of Synopsys and Consultant established by
this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to give
Synopsys the power to direct or control the day-to-day
activities of Consultant. Consultant has no authority to act
on behalf of or to enter into any contract, incur any
liability or make any representation on behalf of Synopsys.
Consultant is solely responsible for all taxes, withholdings,
and other similar statutory obligations arising out of the
performance of services under this Agreement and Consultant
agrees to defend, indemnify and hold Synopsys harmless from
any and all claims made by any entity on account of an alleged
failure by Consultant to satisfy any such tax or withholding
obligations.
7. TERM AND TERMINATION
7.1 The initial term of this Agreement shall expire on October 31,
2002. Thereafter, this Agreement shall be automatically
renewed for successive one-year terms unless this Agreement
shall be earlier terminated pursuant to Sections 7.2, 7.3 or
7.4.
7.2 If any deliverable is rejected by Synopsys or is not delivered
by its due date, then Synopsys may terminate this contract
immediately by giving written notice to Consultant and will
not owe any amount for deliverables which have not been
accepted.
7.3 Synopsys may terminate this Agreement at any time, for any
reason, with or without cause, by giving Consultant written
notice of termination. Termination will be effective
immediately upon receipt of notice. If Synopsys terminates for
convenience, it will pay Consultant for all accepted
milestones and a prorated amount for partially completed
deliverables. Consultant will submit invoices to Synopsys for
payment of all outstanding amounts and Synopsys will pay all
undisputed amounts within thirty (30) days of receipt of the
invoices.
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7.4 Either party has the right to terminate this Agreement if the
other party breaches or is in default of any obligation
hereunder, which default is incapable of cure or which, being
capable of cure, has not been cured with fifteen (15) business
days after receipt of written notice from the nondefaulting
party, or within such additional cure period as the
nondefaulting party may authorize.
7.5 Consultant agrees that all obligations under Sections 3, 4, 5,
9, 10 and 13 shall survive termination of this Agreement.
8. INSURANCE REQUIREMENTS
8.1 Consultant shall comply with all federal, state, county and
municipal laws, ordinances, and regulations, if any,
applicable to the Work to be done hereunder. Consultant
further certifies that all Work performed hereunder shall be
in compliance with applicable health and safety requirements.
8.2 Consultant agrees to carry such adequate health, auto, workers
compensation, and liability insurance as is required to
protect against related liability which may arise in the
performance of the services hereunder, if the same would be
common practice in Consultant's trade or business.
9. INDEMNITY
9.1 Consultant agrees, at its own expense, to defend or, at its
option, to settle, any claim or action brought against
Synopsys for breach of any warranty in Section 10, and
Consultant will indemnify and hold Synopsys harmless from and
against any damages, costs and fees reasonably incurred
(including reasonable attorneys' fees) that are attributable
to such claim or action. Synopsys agrees to provide Consultant
with: (i) prompt written notification of the claim or action;
(ii) control and authority over the defense or settlement
thereof except that Synopsys may participate at its own
expense; and (iii) all reasonable available information and
assistance, as well as the authority to settle and/or defend
any such claim or actionprovided that Synopsys must approve
any settlement in writing, which approval will not be
unreasonably withheld.
9.2 If the Results become, or are likely to become, the subject of
an infringement claim or action, Consultant will: (i) procure,
at no cost to Synopsys , the right to continue using the
Results; (ii) replace or modify the Results to render them
non-infringing, provided there is no material loss of
functionality; or (iii) if, in Consultant's reasonable
opinion, neither (i) nor (ii) above are commercially feasible,
refund the amounts Synopsys paid for the Work.
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9.3 Consultant agrees to indemnify, hold harmless and, upon
Synopsys' request, defend Synopsys and its directors,
officers, employees and agents from and against all loss,
liability, damages, claims and expenses, including reasonable
attorneys' fees, arising out of claims or suits for damage or
injury to persons or property in connection with, in whole or
in part, (i) any negligent act, omission, or willful
misconduct of Consultant in the performance of this Agreement
and (ii) Consultant's failure to comply with federal, state or
local law.
10. WARRANTY
10.1 Consultant shall perform the Work with due diligence and in
full compliance with the terms and conditions of this
Agreement and the highest professional standards of one
skilled in Consultant's industry.
10.2 With respect to all subject matter, including ideas,
inventions, creations, works, processes, designs and methods,
that Consultant will disclose or use in its performance of the
Work or the granting of any rights under this Agreement,
Consultant warrants that it has the right to make such
disclosure, use and grant without liability to others.
Consultant further warrants that: (i) the Results are or will
be original with Consultant; (ii) the Results do not and will
not infringe any Intellectual Property Rights of others; (iii)
Consultant has not previously granted and will not grant any
rights in the Results to any third party that are inconsistent
with the rights granted to Synopsys herein; (iv) each of
Consultant's employees, consultants, contractors, partners or
agents who has been or will be involved in the performance of
the Work will have signed an agreement with Consultant
conveying all proprietary rights in the Results to Consultant
and agreeing to maintain in confidence all trade secrets
embodied in the Results; and (v) Consultant has full power to
enter into this Agreement, to carry out its obligations under
this Agreement and to grant the rights granted to Synopsys.
10.3 Consultant shall comply with all applicable laws and
Synopsys' safety rules in the course of performing the Work.
If Consultant's work requires a license, Consultant has
obtained that license and the license is in full force and
effect.
11. ACCESS TO SYNOPSYS PROPERTY
Permission to enter Synopsys-controlled premises shall at all
times be subject to Synopsys' discretion and control in
accordance with its rules. Consultant will be subject to
security controls prescribed by Synopsys.
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12. KEY PERSONNEL
Synopsys has determined that the individuals whose names
appear below are necessary for the successful performance of
the Work. Consultant agrees to assign such individuals to
perform the Work and shall not reassign or remove any of them
without the prior written consent of Synopsys. Whenever said
key personnel are unavailable to perform the Work, Consultant
shall, with the approval of Synopsys, replace such key
personnel with individuals of substantially equal abilities
and qualifications. If comparable talent is unavailable,
Synopsys may terminate this Agreement as provided for in
Section 7, Termination. During the term of this Agreement and
for one (1) year thereafter, Consultant will not encourage or
solicit any employee or consultant of Synopsys to leave
Synopsys for any reason.
Key Personnel:
A. Xxxxxxx Xxxxxx
13. GENERAL PROVISIONS
13.1 CHOICE OF LAW. This Agreement will be governed by and
construed in accordance with the laws of the United States and
the State of California as applied to agreements entered into
and to be performed entirely within California between
California residents.
13.2 ASSIGNMENT. This Agreement may not be assigned by Consultant
without the prior written consent of Synopsys.
13.3 NOTICES. Any notices required or permitted to be given
pursuant to this Agreement shall be in writing, sent via
certified mail, return receipt requested, express overnight
courier, or by facsimile to the address of Synopsys or
Consultant as set forth below, or to such other address as may
be specified from time to time in writing. Such notice shall
be deemed to have been received on the earlier of (i) the date
when actually received, or (ii) if by facsimile, when the
sending party shall have received a facsimile confirmation
that the message has been received by the receiving party's
facsimile machine.
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IF TO SYNOPSYS:
Synopsys, Inc.
000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000-0000
Attn.: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
IF TO CONSULTANT:
A. Xxxxxxx Xxxxxx at such address as Consultant shall have
provided Synopsys in writing
13.4 NO WAIVER. Failure by either party to enforce any provision of
this Agreement will not be deemed a waiver of future enforcement
of that or any other provision.
13.5 SEVERABILITY. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be
unenforceable, that provision of the Agreement will be enforced
to the maximum extent permissible so as to effect the intent of
the parties, and the remainder of this Agreement will continue in
full force and effect.
13.6 ATTORNEYS' FEES. The prevailing party in any action to enforce
this Agreement shall be entitled to recover reasonable costs and
expenses including, without limitation, reasonable attorneys'
fees.
13.7 INJUNCTIVE RELIEF. The parties agree that a material breach of
this Agreement adversely affecting Synopsys' Confidential
Information would cause irreparable injury to Synopsys for which
monetary damages would not be an adequate remedy and Synopsys
shall be entitled to equitable relief in addition to any remedies
it may have hereunder or at law.
13.8 FORCE MAJEURE. Nonperformance of either party shall be excused to
the extent that performance is rendered impossible by strike,
fire, flood, governmental action, failure of suppliers,
earthquake, or any other reason where failure to perform is
beyond the reasonable control of the non-performing party up to a
maximum of ninety days.
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13.9 ENTIRE AGREEMENT. This Agreement, including all Exhibits
constitute the entire agreement between the parties with respect
to the subject matter hereof, and supersede all prior agreements
or representations, oral or written, regarding such subject
matter. This Agreement may not be modified or amended except in a
writing signed by a duly authorized representative of both
parties.
13.10 COMMENCEMENT OF SERVICES. Services shall not commence until this
agreement is incorporated into a Purchase Order that provides
funding for the agreement and serves as the authorization to
commence work.
CONSULTANT SYNOPSYS, INC.
By (Signature):/S/ A. XXXXXXX XXXXXX By (Signature):/S/ XXXX X. XX XXXX
-------------------------- --------------------
Printed Name: A. XXXXXXX XXXXXX Printed Name: XXXX X. XX XXXX
--------------------------- --------------------
Title: --------------------------- Title: Chairman and Chief Executive
Officer
IF INTELLECTUAL PROPERTY IS NOT INVOLVED BOTH PARTIES WILL INITIAL IN THE SPACE
PROVIDED BELOW AND SECTION 5, ASSIGNMENT OF RIGHTS AND INTEREST AND EXHIBIT C,
LIST OF INVENTIONS WILL NOT APPLY.
CONSULTANT _____________ SYNOPSYS _____________
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EXHIBIT A
STATEMENT OF WORK
Consultant shall render such services as are necessary to complete in a
professional manner the project described as follows (you may attach
Consultant's proposal and incorporate it by reference, e.g. "see letter dated
mo/day/yr from Consultant"):
Provide on-going consulting services to Synopsys for strategic planning and
technology direction.
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EXHIBIT B
COMPENSATION
During the term of this Agreement, Consultant shall be paid a fee of $15,000 per
month.
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EXHIBIT C
LIST OF INVENTIONS
--------- No inventions or improvements
--------- See below
--------- Additional sheets attached
--------------------------------
Consultant Date
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