Consulting Agreement
This Consulting Agreement ("Agreement"), dated as of May 1, 2001, is
between SVPC Partners, LLC, a Delaware Limited Liability Company ("the
"Company"), and Xxxxx X. Xxxxxxxx ("Xxxxxxxx").
WHEREAS Company has agreed to acquire substantially all of the assets of
SVPC Circuit Systems, Inc.; and
WHEREAS, the Company desires to engage Xxxxxxxx as a consultant and upon
the other terms and conditions, herein provided; and
WHEREAS, Xxxxxxxx is willing to be retained by the Company as its
consultant ("Consultant") pursuant to the terms and conditions of this
Agreement; and,
NOW, THEREFORE, in consideration of the promises, the mutual covenants
and obligations herein contained, and for other good and valuable
consideration, the receipt, adequacy, and sufficiency of which are hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
1. CONSULTING
1.1 Position. The Company hereby confirms Consultant's retainer as its
Consultant. Consultant shall report directly to the Company's Chief Executive
Officer and shall perform the services described in Section 1.2 hereof,
subject to such limitations of authority as may be established from time to
time by the Company's Chief Executive Officer and applicable law.
(a) Services. Consultant's services will include all those services
customarily associated with the position of Consultant in an emerging growth
company, subject to the direction of the Company's Chief Executive Officer.
Such services shall include his assistance in the acquisition and closing by
Company of its acquisition defined herein; assistance in the negotiation of
agreements with vendors, suppliers, employees, and overall strategic
management of Company's sales and production departments. Consultant agrees
to devote at approximately half of his entire business time and attention to
the performance of his services hereunder and to serve the Company diligently
and to the best of his abilities.
2. FEES
2.1 Base Monthly Fee. The Company shall pay Consultant a base monthly fee of
$9,000.00 (the "Base Monthly Fee") commencing the date hereof.
2.2 Expense Reimbursement. With respect to Consultant's reasonable
out-of-pocket business expenses, Consultant shall be reimbursed in accordance
with Company's established policies.
3. TERMINATION
Consultant and the Company acknowledge and agree that Consultant's services to
the Company are "at will" during the term of this Agreement. Accordingly,
either party may terminate Consultant's employment by the Company, with or
without cause, in which case Consultant shall have no claim for fees, although
termination of Consultant's services shall be subject to the terms and
conditions of this Agreement regarding other obligations. Consultant and the
Company are not party to any oral agreement relating to the Consultant's
services to the Company. In the event of Consultant's death, this Agreement
shall automatically terminate and shall be of no further force or effect;
provided, however, the Company shall be obligated to make all the payments and
to provide all the benefits due to Consultant hereunder to the time of his
death.
4. TERM
This Agreement shall become effective as of the date hereof and shall
terminate on the date that is one (1) year after the date hereof, unless
earlier terminated pursuant to Article 3 hereof.
5. NON-DISCLOSURE, RESTRICTIVE COVENANTS, AND NON-DISPARAGEMENT
5.1 Non-Disclosure. Except as is reasonably necessary in the performance of
his services hereunder, Consultant shall not disclose to any person or entity,
or use for his own direct or indirect benefit, any Confidential Information
(as defined below) pertaining to the Company obtained by him in connection
with his employment with the Company. For purposes of this Agreement, the
term "Confidential Information" shall include information with respect to the
Company's products, services, processes, suppliers, customers, customers'
account, suppliers and distribution information, price lists, identity and
list of actual and potential customers, trade secrets, technical information,
business plans, and strategies and financial records or condition; provided,
however, that such information shall not be treated as Confidential
Information to the extent that it has been publicly disclosed by the Company
(other than by Consultant through a breach of this Section 5.1)
5.2 Restrictive Covenants. Consultant agrees that, after the termination of
Consultant's employment and for the one year period after the date hereof,
provided the Company is not in default of any obligation to Consultant under
this Agreement or otherwise, he shall not:
(a) directly or indirectly, alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor or stockholder
of any company or business, engage in any business activity in the State of
California ("Restricted Territory"), and which is directly or indirectly in
competition with the business conducted by the Company as of the date of the
termination of Consultant's employment; provided however, that, the beneficial
ownership of less than 5% of the shares of stock of any corporation having a
class of equity securities actively traded on a national securities exchange
or over-the-counter market shall not be deemed, in and of itself, to violate
the prohibitions of this Section.
(b) directly or indirectly:
(i) induce any customer to patronize any business directly or indirectly in
competition with the business conducted by Company;
(ii) canvass, solicit or accept from any entity any such competitive business;
or
(iii) request or advise any customer to withdraw, curtail, or cancel any such
customer's business with Company;
(c) employ any person who was employed by Company at or within twelve (12)
months prior to the termination of Consultant's employment or in any manner
seek to induce any such person to leave his or her employment; or
(d) directly or indirectly, in any way utilize, disclose, copy, reproduce, or
retain in his possession's any of Company's proprietary rights or records,
including, but not limited to, any of its customer lists.
Consultant agrees and acknowledges that the restrictions contained in this
Section 5.2 are reasonable in scope and duration and are necessary to protect
Company after the termination of Consultant's services. If any provision of
this Section as applied to any party or to any circumstance is adjudged by a
court to be invalid or unenforceable, the same will in no way affect any other
circumstance or the validity or enforceability of this Agreement. If any such
provision, or any part, thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the
duration and/or area of such provision, and/or to delete specific words or
phrases, and in its reduced form, such provision shall then be enforceable and
shall be enforced. The parties agree and acknowledge that the breach of this
Section will cause irreparable damage to Company and upon breach of any
provision of this Section, Company shall be entitled to injunctive relief,
specific performance or other equitable relief; provided, however, that this
shall in no way limit any other remedies which Company may have (including,
without limitation, the right to seek monetary damages).
5.3 Defamatory Statement. Consultant agrees from the date hereof he shall not
make any written or oral statements that are slanderous, libelous or
defamatory concerning the company or any of its affiliates, including without
limitation, any or all of the Company's or its affiliates, officers and
directors.
6. MISCELLANEOUS
6.1 No Waiver. The waiver by either party of a breach of any provision of
this Agreement shall not operate as or be construed as a waiver of any
subsequent breach thereof.
6.2 Notices. Any and all notices referred to herein shall be furnished in
writing and shall be delivered by hand or sent by registered or certified
mail, postage prepaid, to the respective parties at the following addresses )
or at such other address as either party may from time to time designate to
the other by like notice):
To the Company:SVPC Partners, LLC
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
To Consultant: Xx. Xxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
6.3Assignment.This Agreement may not be assigned by Consultant and
may not be assigned by the Company otherwise than by operation of law. This
Agreement shall be binding upon the Company's successors and assigns.
6.4Entire Agreement.This Agreement supersedes any and all prior
written or oral agreements between Consultant and the Company and evidences
the entire understanding of the parties hereto with respect to the terms and
conditions of Consultant's services for the Company.
6.5 Governing Law. This Agreement shall be enforced in accordance with the
laws of the State of California and shall be construed in accordance
therewith. The parties hereto agree that all actions or proceedings arising
in connection with this Agreement shall be tried and litigated exclusively in
the State and Federal courts located in the County of Santa Xxxxx, State of
California. The aforementioned choice of venue is intended by the parties to
be mandatory and not permissive in nature thereby precluding in the
possibility of litigation between the parties with respect to or arising out
of this Agreement in any jurisdiction other than that specified in this
paragraph. Each party hereby waives any right it may have to assert the
doctrine of forum non conveniens or similar doctrine or to object to venue
with respect to any proceeding brought in accordance with this paragraph, and
stipulates that the State and Federal courts located in the County of Santa
Xxxxx, State of California shall have in personam jurisdiction and venue over
each of them for the purpose of litigating any dispute, controversy, or
proceeding arising out of or related to this Agreement. Each party hereby
authorizes and accepts service of process sufficient for personal mail, return
receipt requested, postage prepaid, to its address for the giving of notices
as set forth in this Agreement. Any final judgement rendered against a party
in any action of proceeding shall be conclusive as to the subject of such
final judgement and may be enforced in other jurisdictions in any manner
provided by law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
SVPC Partners, LLC
By:/s/ Xxxxx Xxxxx /s/Xxxxx X. Xxxxxxxx
Chief Executive Officer Xxxxx X. Xxxxxxxx
