Exhibit 10.3
AGREEMENT
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This Agreement ("Agreement"), is made this 17th day of February 2004 by
and between November Group, Ltd. ("the Consultant"), a Maryland corporation with
its principal office at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, and Thinking
Tools, Inc., a Delaware corporation with its principal office at 000 Xxxx
Xxxxxx, Xxx Xxxx, XX ("the Company"). The Company seeks to benefit from the
Consultant's expertise and experience by retaining the Consultant to provide
advice, consultation and assistance to the Company. Accordingly, the Company and
the Consultant agree as follows:
1. Scope of Services. The Consultant, through its principals, officers
and/or employees, shall provide such advice, consultation and assistance as the
parties mutually agree.
2. Term. The initial term of this Agreement shall be for three (3)
years, renewable upon reasonable terms and conditions as may be agreed upon by
the Company and the Consultant.
3. Fees. As consideration for the consulting services provided by the
Consultant, the Company shall pay to Consultant a total fee of $600,000.00, in
equal monthly installments, for the initial three (3) year term of this
Agreement.
4. Termination. If the Company terminates this Agreement for a reason
other than "good cause", as defined below, the Company agrees to pay a
termination fee of one half of the entire remaining fee.
For purposes of the Agreement "good cause" shall be defined as follows:
(i) commission of a felony or any crime involving moral turpitude; (ii)
declaration of unsound mind by a court of competent jurisdiction; or (iii)
inability to perform the essential functions of the subject position, with or
without a reasonable accommodation, for a period of 90 days, as a result of a
medical condition (as permissible under applicable state and federal laws).
5. Notice and Opportunity to Cure. The Parties agree that, prior to
either Party seeking to terminate this Agreement due to an asserted breach of
the Agreement, the non-breaching Party shall give to the breaching Party written
notice and a three-day opportunity to cure the breach. In the event of such
notice, the Parties agree to meet and confer in a good faith attempt to resolve
the matter short of termination.
6. Change of Control. In the event of a change in control, the entire
fee shall become due and owing. For purposes of this provision, "change in
control" is defined as: (i) except as provided below, all or substantially all
of the assets of the Company are sold to an unrelated third party; or (ii) the
acquisition, directly or indirectly (and including through any merger or
consolidation), after the Commencement Date, of beneficial ownership of
securities of the Company possessing more than fifty percent (50%) of the total
combined voting power of all outstanding securities of the Company by any person
or entity (or "group" of affiliated persons or entities within the meaning of
Section
13(d)(3) of the Securities Exchange Act of 1934, as amended). Notwithstanding
the foregoing, Change in Control shall not include any transaction between the
Company, on the one hand, and any subsidiary of the Company, including the
Company, on the other hand, undertaken for the purpose of effecting a corporate
reorganization whereby the share ownership of the surviving entity immediately
following such transaction is held in substantially the same proportions as the
share ownership of the Company immediately prior to such transaction. Further,
Change in Control shall not include a transaction in which the Company uses its
stock as the purchase currency to acquire another entity so long as the
management of Thinking Tools, Inc., is the same as before the acquisition.
7. Expenses. The Company shall reimburse the Consultant for all
out-of-pocket expenses incurred in direct connection with this engagement.
8. Confidentiality and Protection of Proprietary Information.
8.1 Industrial Property Rights. For the purpose of this Agreement,
"Industrial Property Rights" shall mean all of the Company's or the Consultant's
patents, trademarks, trade names, inventions, copyrights, know-how or trade
secrets, now in existence or hereafter developed or acquired by the Company or
the Consultant for its use, relating to any and all products and services which
are developed, formulated and/or manufactured by the Company or the Consultant.
8.2 Trade Secrets. For the purpose of this Agreement, "Trade
Secrets" shall mean any formula, pattern, device, or compilation of information
that is used in the Company's or the Consultant's business and gives the Company
or the Consultant opportunity to obtain an advantage over its competitors who do
not know and/or do not use it. This term includes, but is not limited to,
information relating to the marketing of the Company's or the Consultant's
products and services, including price lists, pricing information, customer
lists, customer names, the particular needs of customers, information relating
to their desirability as customers, financial information, intangible property
and other such information which is not in the public domain.
8.3 Technical Data. For the purpose of this Agreement, "Technical
Data" shall mean all information of the Company or the Consultant in written,
graphic or tangible form relating to any and all products which are developed,
formulated and/or manufactured by the Company or the Consultant, as such
information exists as of the date of this Agreement or is developed by the
Company during the term hereof.
8.4 Proprietary Information. For the purpose of this Agreement,
"Proprietary Information" shall mean all of the Company's and the Consultant's
Industrial Property Rights, Trade Secrets and Technical Data. Proprietary
Information shall not include any of the Company's information that (i) was
lawfully in the possession of Consultant prior to Consultant's engagement with
the Company, (ii) may be obtained by a reasonably diligent businessperson from
readily available and public sources of information, (iii) is lawfully disclosed
to Consultant after termination of Consultant's engagement by a third party
which does not have an obligation to the
Company to keep such information confidential, or (iv) is independently
developed by Consultant after termination of Consultant's engagement without
utilizing any of the Company's Proprietary Information. Correspondingly,
Proprietary Information shall not include any of the Consultant's information
that (i) was lawfully in the possession of the Company prior to the Company's
engagement of the Consultant, (ii) may be obtained by a reasonably diligent
businessperson from readily available and public sources of information, (iii)
is lawfully disclosed to the Company after termination of Consultant's
engagement by a third party which does not have an obligation to the Consultant
to keep such information confidential, or (iv) is independently developed by the
Company after termination of the Consultant's engagement without utilizing any
of the Consultant's Proprietary Information.
8.5 Agreement Not To Copy Or Use. The Parties agree, during the
term of this Agreement and for a period of two years thereafter, not to copy,
use or disclose (except as required by law after first notifying the proprietor
Party and giving it an opportunity to object) any Proprietary Information
without the proprietor's prior written permission. The proprietor may withhold
such permission as a matter within its sole discretion.
9. Nonsolicitation and Noninterference. During the term of this
Agreement and for a period of two years thereafter, each Party agrees that it
shall not, directly or indirectly, (a) induce or attempt to induce any employee
of the of the other Party to leave that Party's employ, or (b) induce or attempt
to induce any customer, supplier, licensee, licensor or other business relation
of the other Party to cease doing business with that Party. The Company
acknowledges that the principals of the Consultant also serve as directors,
officers, managers and/or principals of third party business entities, including
entities that may do business with the Company (the Third Parties). The Company
acknowledges and agrees that this paragraph 9 shall not apply to business
decisions made by the Consultant's principals in the context of their roles as
directors, officers, managers or principals of any Third Party.
10. Injunctive Relief. The Parties each recognize, acknowledge and
agree that breach of the covenants contained in paragraphs 8 and 9 would do
great and irreparable harm, injury and damage to the non-breaching Party, the
non-breaching Party would encounter extreme difficulty in attempting to prove
the actual amount of damages it suffered as a result of such breach, and the
non-breaching Party would not be reasonably or adequately compensated in damages
in any action at law. The Parties therefore covenant and agree that, in addition
to any other remedy they may have at law, in equity, by statute or otherwise, in
the event of any breach of the covenants contained in paragraphs 8 or 9 of this
Agreement, the non-breaching Party shall be entitled to seek and receive
temporary, preliminary and permanent injunctive and other equitable relief from
any court of competent jurisdiction to enforce any of the its rights and to
prevent the violation of any of the terms or provisions hereof, all without the
necessity of proving the amount of any actual damage to the non-breaching Party;
provided, however, that nothing contained in this paragraph 10 shall be deemed
or construed in any manner whatsoever as a waiver by either Party of any of the
rights it may have against the other Party at law, in
equity, by statute or otherwise arising out of, in connection with or resulting
from the breach of any of the covenants, agreements, duties or obligations under
this Agreement.
11. Return of Corporate Property and Trade Secrets. Upon any
termination or expiration of this Agreement, Consultant and the Company shall
each return to the other all property, writings or documents then in their
possession or custody belonging to the other Party or comprising any of the
other Party's Proprietary Information.
12. Indemnification. The Company shall indemnify the Consultant and
shall hold the Consultant harmless from any cost, expense (including attorneys'
fees) or liability arising out of or related to any act on behalf of or in the
course of performance of this Agreement. In the event of litigation, the
Consultant shall be entitled to select its own counsel and, if the Consultant so
requests, the Company shall advance to the Consultant an amount (or amounts)
estimated to cover the Consultant's litigation expenses. Such indemnification
and agreement to advance expenses in litigation shall survive the initial term
of this Agreement.
13. Nonexclusivity. The Company understands and agrees that the
Consultant shall not be prevented or barred from rendering services of any kind
or nature to, for or on behalf of any other person, firm, corporation or entity,
subject to the Consultant's obligation to maintain confidentiality of the
Company's Proprietary Information pursuant to paragraph 8. Nevertheless, the
Consultant agrees to avoid entering into any relationship that hinders it timely
performance of services for the Company.
14. Miscellaneous.
a. No Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder may be assigned by either Party without the
prior written consent of the other Party.
b. Independent Principals. The relationship created by this
Agreement shall be that of independent contractor, and the Consultant shall have
no authority to bind or act as agent for the Company or its employees for any
purpose except as expressly authorized by the Board of Directors of the Company.
c. Entire Agreement. This Agreement constitutes the entire
understanding between the Parties with respect to the subject matter hereof,
supersedes all previous written or verbal agreements between the Parties, and
may not be modified except by a written agreement signed by both Parties.
d. Notices. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and shall be deemed
received if and when either hand delivered and a signed receipt given, or mailed
by registered or certified U.S. mail, return receipt requested, postage prepaid,
to the addresses first listed above.
e. Governing Law. This Agreement and the relationship between the
parties shall be construed under and governed by the laws of the State of New
York without regard to the conflict of laws and rules thereof, and shall take
effect as if executed and performed in the New York, NY.
f. Waiver. Any waiver or alleged waiver of any breach or term of
this Agreement shall not constitute a waiver of any other breach or term hereof.
g. Construction. Any ambiguity in this Agreement shall not be
construed against either Party as a result of such Party's preparation of this
Agreement, but shall be construed in favor or against the parties in light of
all the facts, circumstances and intentions of the parties at the time this
Agreement is effective.
h. Severability. The provisions of this Agreement shall be deemed
several and the invalidity of any provision shall not affect the validity or
enforceability of the other provisions hereof.
i. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one instrument.
In Witness Whereof, the Parties have executed this Agreement effective
the date first stated above.
THINKING TOOLS, INC. NOVEMBER GROUP, LTD.
BY: /s/ N.E. Paciotti BY: /s/ Xxxxx Xxxxx
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XXXXXXXXX X. XXXXXXXX President
CHIEF EXECUTIVE OFFICER
