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EXHIBIT 10.32
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement"), made as of the 1st day of
April, 1998, is entered into by ECC International Corp., a Delaware corporation
with its principal place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx,
Xxxxxxxxxxxx 00000 (the "Company"), and Xxxxxx X. Xxxxxx, residing at 000
Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000 (the "Consultant").
WHEREAS, the Company desires to retain the services of the Consultant
and the Consultant desires to perform certain services for the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the parties
agree as follows:
1. SERVICES. The Consultant agrees to perform such consulting,
advisory and related services to and for the Company as may be reasonably
requested from time to time by the Company.
2. TERM. This Agreement shall commence on the date hereof and
shall continue until the first anniversary of the date hereof (such period being
referred to as the "Consultation Period"), unless sooner terminated in
accordance with the provisions of Section 4.
3. Compensation.
3.1 CONSULTING FEES. The Company shall pay to the
Consultant aggregate consulting fees of $100,000 for his services during the
Consultation Period, payable as follows: $50,000 upon the execution and delivery
of this Agreement; and $50,000 on December 28, 1998.
3.2 REIMBURSEMENT OF EXPENSES. The Company shall
reimburse the Consultant for all reasonable and necessary expenses incurred or
paid by the Consultant in connection with, or related to, the performance of his
services under this Agreement. The Consultant shall submit to the Company
itemized quarterly statements, in a form satisfactory to the Company, of such
expenses incurred in the previous quarter. The Company shall pay to the
Consultant amounts shown on each such statement within 15 days after receipt
thereof.
3.3 BENEFITS. The Consultant shall not be entitled to any
benefits, coverages or privileges made available to employees of the Company,
including, without limitation, social security, unemployment, medical or pension
payments, by reason of this Agreement.
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3.4 DEATH. Notwithstanding any other provision of this
Agreement, if the Consultant dies during the term of this Agreement, the
Consultant's spouse at the time of death shall be entitled to receive the cash
payment payable on December 28, 1998 as set forth in Section 3.1 above, provided
she is alive on such date.
4. TERMINATION. The Company may terminate the Consultation
Period, effective immediately upon receipt of written notice, if the Consultant
breaches any provision of Sections 1 or 6 of this Agreement or the
Non-Competition and Non-Solicitation Agreement of even date herewith by and
between the Company and the Consultant. In the event of such termination, the
Consultant shall be entitled to payment for services performed on a pro rata
basis and expenses paid or incurred prior to the effective date of termination.
Such payments shall constitute full settlement of any and all claims of the
Consultant of every description against the Company.
5. COOPERATION. The Consultant shall use his best efforts in the
performance of his obligations under this Agreement. The Company shall provide
such access to its information and property as may be reasonably required in
order to permit the Consultant to perform his obligations hereunder. The
Consultant shall cooperate with the Company's personnel, shall not interfere
with the conduct of the Company's business and shall observe all rules,
regulations and security requirements of the Company concerning the safety of
persons and property.
6. INVENTIONS AND PROPRIETARY INFORMATION.
6.1 INVENTIONS.
(a) All inventions, discoveries, computer programs,
data, technology, designs, innovations and improvements (whether or not
patentable and whether or not copyrightable) ("Inventions") related to the
business of the Company which are made, conceived, reduced to practice, created,
written, designed or developed by the Consultant, solely or jointly with others
and whether during normal business hours or otherwise, during the Consultation
Period or thereafter if resulting or directly derived from Proprietary
Information (as defined below), shall be the sole property of the Company. The
Consultant hereby assigns to the Company all Inventions and any and all related
patents, copyrights, trademarks, trade names and other industrial and
intellectual property rights and applications therefor, in the United States and
elsewhere and appoints any officer of the Company as his duly authorized
attorney to execute, file, prosecute and protect the same before any government
agency, court or authority. Upon the request of the Company and at the Company's
expense, the Consultant shall execute such further assignments, documents and
other instruments as may be necessary or desirable to fully and completely
assign all Inventions to the Company and to assist the Company in applying for,
obtaining and enforcing patents or copyrights or other rights in the United
States and in any foreign country with respect to any Invention.
(b) The Consultant shall promptly disclose to the
Company all Inventions and will maintain adequate and current written records
(in the form of notes,
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sketches, drawings and as may be specified by the Company) to document the
conception and/or first actual reduction to practice of any Invention. Such
written records shall be available to and remain the sole property of the
Company at all times.
6.2 PROPRIETARY INFORMATION.
(a) The Consultant acknowledges that his relationship
with the Company is one of high trust and confidence and that in the course of
his service to the Company he will have access to and contact with Proprietary
Information. The Consultant agrees that he will not, during the Consultation
Period or at any time thereafter, disclose to others, or use for his benefit or
the benefit of others, any Proprietary Information or Invention.
(b) For purposes of this Agreement, "Proprietary
Information" shall mean, by way of illustration and not limitation, all
information (whether or not patentable and whether or not copyrightable) owned,
possessed or used by the Company, including, without limitation, any Invention,
formula, vendor information, customer information, apparatus, equipment, trade
secret, process, research, report, technical data, know-how, computer program,
software, software documentation, hardware design, technology, marketing or
business plan, forecast, unpublished financial statement, budget, license,
price, cost and employee list that is communicated to, learned of, developed or
otherwise acquired by the Consultant in the course of his service as a
consultant to the Company.
(c) The Consultant's obligations under this Section
6.2 shall not apply to any information that (i) is or becomes known to the
general public under circumstances involving no breach by the Consultant or
others of the terms of this Section 6.2, (ii) is generally disclosed to third
parties by the Company without restriction on such third parties, or (iii) is
approved for release by written authorization of the Board of Directors of the
Company.
(d) Upon termination of this Agreement or at any
other time upon request by the Company, the Consultant shall promptly deliver to
the Company all records, files, memoranda, notes, designs, data, reports, price
lists, customer lists, drawings, plans, computer programs, software, software
documentation, sketches, laboratory and research notebooks and other documents
(and all copies or reproductions of such materials) relating to the business of
the Company.
(e) The Consultant represents that his retention as a
consultant with the Company and his performance under this Agreement does not,
and shall not, breach any agreement that obligates him to keep in confidence any
trade secrets or confidential or proprietary information of his or of any other
party or to refrain from competing, directly or indirectly, with the business of
any other party. The Consultant shall not disclose to the Company any trade
secrets or confidential or proprietary information of any other party.
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(f) The Consultant acknowledges that the Company from
time to time may have agreements with other persons or with the United States
Government, or agencies thereof, that impose obligations or restrictions on the
Company regarding inventions made during the course of work under such
agreements or regarding the confidential nature of such work. The Consultant
agrees to be bound by all such obligations and restrictions that are known to
him and to take all action necessary to discharge the obligations of the Company
under such agreements.
6.3 REMEDIES. The Consultant acknowledges that any breach
of the provisions of this Section 6 shall result in serious and irreparable
injury to the Company for which the Company cannot be adequately compensated by
monetary damages alone. The Consultant agrees, therefore, that, in addition to
any other remedy it may have, the Company shall be entitled to enforce the
specific performance of this Agreement by the Consultant and to seek both
temporary and permanent injunctive relief (to the extent permitted by law)
without the necessity of proving actual damages.
7. INDEPENDENT CONTRACTOR STATUS. The Consultant shall perform
all services under this Agreement as an "independent contractor" and not as an
employee or agent of the Company. The Consultant is not authorized to assume or
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Company or to bind the Company in any manner.
8. NOTICES. All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective upon personal
delivery or upon deposit in the United States Post Office, by registered or
certified mail, postage prepaid, addressed to the other party at the address
shown above, or at such other address or addresses as either party shall
designate to the other in accordance with this Section 8.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties and supersedes all prior agreements and
understandings, whether written or oral, relating to the subject matter of this
Agreement.
10. AMENDMENT. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Consultant.
11. GOVERNING LAW. This Agreement shall be construed, interpreted
and enforced in accordance with the internal laws of the State of Delaware,
without regard to conflict of laws principles.
12. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon,
and inure to the benefit of, both parties and their respective successors and
assigns, including any corporation with which, or into which, the Company may be
merged or which may succeed to its assets or business, provided, however, that
the obligations of the Consultant are personal and shall not be assigned by him.
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13. MISCELLANEOUS.
13.1 No delay or omission by the Company in exercising any
right under this Agreement shall operate as a waiver of that or any other right.
A waiver or consent given by the Company on any one occasion shall be effective
only in that instance and shall not be construed as a bar or waiver of any right
on any other occasion.
13.2 The captions of the sections of this Agreement are
for convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
13.3 In the event that any provision of this Agreement
shall be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
ECC INTERNATIONAL CORP.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. XxXxxx
Title: Chairman of the Board
CONSULTANT
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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