Exhibit 10
CONSULTING AGREEMENT
AGREEMENT made this 1st day of January, 1998 between MERRIMAC INDUSTRIES,
INC., a New Jersey corporation (the "Company"), and XXXXXX X. XXXXXX (the
"Consultant").
W I T N E S S E T H
WHEREAS, the Company desires to employ the Consultant to advise and assist
it in its business and the Consultant has agreed to provide and perform
consulting services on terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and covenants contained
herein, the parties agree as follows:
1. Appointment. The Company hereby retains Consultant, and Consultant
agrees to act, in an advisory and consulting capacity to the Company for a term
commencing on the date hereof and to continue in force thereafter for the Term
(as defined in Section 5).
2. Consulting Services. Consultant agrees during the Term to render
services of an advisory and consultative nature in order that the Company may
have the benefit of Consultant's expertise and knowledge of the affairs of the
Company. Consultant will perform services hereunder for 20 hours per month
(non-cumulative) as directed by the Chief Executive Officer of the Company
relating to high level contact with customers in the Pacific Rim region;
Multi-mix product development, including wave guiding structures, cross talk,
antennas and feeds and Xxxxxx matrices; instruction relating to advanced
microwave theory; new technology review process; advice to the Chief Executive
Officer on technology matters; and attending technical conferences on behalf of
the Company. It is contemplated that Consultant will provide
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the services hereunder in the Massachusetts, New Jersey and New York area
(except for normal business travel) or at the Company's request at such other
location as may be mutually agreed upon by the Company and Consultant.
3. Consulting Fee. The Company shall pay Consultant as a fee for the
services rendered pursuant to this Agreement a sum equal to Three Thousand
($3,000) Dollars per month. For services provided in excess of 20 hours in a
particular month the Company shall pay the Consultant at an hourly rate equal to
$150.00 per hour. Payments for the period January 1, 1998 through March 31, 1998
shall be made in arrears on April 1, 1998 and thereafter shall be paid monthly
in arrears the first day of each month commencing May 1, 1998.
4. Expenses. The Company shall reimburse Consultant for reasonable
out-of-pocket business expenses upon presentation of appropriate evidence
thereof.
5. Term. This Agreement shall be for a term commencing on the date hereof
and shall continue for a period of not less than twelve (12) months (the
"Initial Period"). At the expiration of the Initial Period, the Agreement shall
continue from year to year upon the conditions stated herein unless terminated
pursuant to Section 6. The Initial Period and each period thereafter during
which this Agreement continues in effect prior to its termination is referred to
herein as the "Term".
6. Termination. The Company's obligation under this Agreement may be
terminated by the Company upon written notice to Consultant at least thirty (30)
days prior to the end of the then-current Term, in which case Consultant's
employment will terminate at the end of such Term. Consultant's obligation to
provide consulting services hereunder may be terminated by Consultant at any
time after the Initial Period upon ninety (90) days written notice to the
Company. This Agreement shall also terminate on Consultant's death or, at the
Company's
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option, the Consultant's inability to perform his required services for a
period of sixty (60) days because of illness or disability. Notwithstanding any
of the foregoing provisions of this Agreement, the Company may, at any time
during the Term without prior notice, discharge the Consultant for "Cause" (as
hereinafter defined). In the event that Consultant ceases to provide consulting
services hereunder for any reason other than discharge by the Company without
Cause, the Company shall pay to Consultant all consulting fees accrued but
unpaid through the date of termination, and the Company shall not have any
further obligations under this Agreement, except as may otherwise be required by
law. For the purposes of this Agreement, the Company shall be deemed to have
Cause to terminate the Consultant's employment hereunder for: (a) willful
failure to perform normal and customary duties for an extended period for any
reason other than death or total disability; (b) gross negligence or willful
misconduct, including but not limited to, fraud, embezzlement or intentional
misrepresentation; (c) commission of, or indictment or conviction for, a felony;
(d) willfully engaging in competitive activities against the Company or
purposely aiding a competitor of the Company; (e) misappropriation of a material
opportunity of the Company; (f) oral or written publication of information
relating to the Company not in the public domain; or (g) violation of any
material term of this Agreement and failure to cure within ten days after
receipt of notice of such violation. If the Consultant is dismissed for Cause,
the Company shall pay to Consultant all salary accrued but unpaid through the
date of termination, and the Company shall not have any further obligations
under this Agreement, except as may otherwise be required by law.
7. Non-Competition; Confidential Information and Indemnification. During
the Term and for the three (3) year period thereafter, Consultant shall not,
without the express prior written consent of the Company, directly or
indirectly:
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(i) engage in any activity, business or service, either on his own
account or as an employee, officer, director, partner, trustee, principal,
consultant, joint venturer, investor, or investor with or in any person or
entity, that in whole or in part is competitive with the business activities of
the Company; (ii) solicit, interfere with or endeavor to entice away from the
Company any of its customers or suppliers; or (iii) solicit, entice or initiate
contact for purposes of offering employment with any current employee of the
Company or any person who was an employee of the Company within a period of one
year after that person leaves the employ thereof, and will notify the Company
before employing any such person;
provided, however, that nothing in this Section 7 shall be construed to
prevent Consultant from owning, as an investment, up to 1% of a class of equity
securities issued by any competitor of the Company or its affiliates that is
publicly traded and registered under Section 12 of the Exchange Act.
Without limiting the generality of this Section 7, and although the
restrictions contained in this Section 7 are considered by the parties hereto to
be fair and reasonable in the circumstances, it is recognized that restrictions
may fail for technical reasons, and accordingly it is hereby agreed that if any
such restrictions shall be adjudged by a court to be void or unenforceable for
whatever reason, but would be valid if part of the wording thereof were deleted,
or the period thereof reduced or the area dealt with thereby reduced in scope,
the restrictions contained in this Section 7 shall apply, at the election of the
Board of Directors of the Company, with such reductions in geographic or
temporal scope as may be necessary to make them valid, effective and enforceable
in the particular jurisdiction in which the restrictions are adjudged to be void
or unenforceable.
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(b) Confidential Information. Consultant shall not disclose any
confidential information of the Company or its affiliates which is now known to
him or which hereafter may become known to him as a result of his consulting
services hereunder, and shall not at any time directly or indirectly disclose
any such information to any person, firm, corporation or other entity, or use
the same in any way other than in connection with the business of the Company or
its affiliates, during and at all times after the expiration of the Term;
provided, however, that nothing in this Section 7 shall prohibit Consultant from
communicating, disclosing or using information that has become known generally
by the public or otherwise has come into the public domain (other than by
disclosure by Consultant in breach of this Agreement). Consultant's contractual
obligation under this paragraph, however, shall not extend beyond one year after
the end of the Term.
(c) Company's Remedies for Breach. It is recognized that damages in the
event of breach of this Section 7 by Consultant would be difficult, if not
impossible, to ascertain, and it is therefore agreed that the Company, in
addition to and without limiting any other remedy or right it may have, shall
have the right to an injunction or other equitable relief in any court of
competent jurisdiction enjoining any such breach, and Consultant hereby waives
any and all defenses he may have on the ground of lack of jurisdiction or
competence of the court to grant such an injunction or other equitable relief.
The existence of this right shall not preclude the Company from pursuing any
other rights and remedies at law or in equity which the Company may have.
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(d) Indemnification. To the extent permitted by law, Consultant will be
indemnified under the articles of incorporation and by-laws, as applicable, of
the Company or any subsidiary thereof for which Consultant is performing
services and, to the extent permitted under currently applicable insurance
policies, to be covered by directors and officers liability insurance policies
covering directors and officers of the Company that are the same as or provide
coverage at least equivalent to those carried by the Company on August 1, 1997.
8. Assignment. The duties of the Company and Consultant may not be
assigned, provided that the obligations of the Company shall be binding upon any
successor to all or substantially all of the Company's business by purchase,
merger, consolidation or otherwise.
9. Independent Contractor. Consultant is an independent contractor and has
and shall have no power, nor will Consultant represent that Consultant has any
power, to bind the Company or to assume or create any obligation or
responsibility on behalf of the Company. Consultant shall not be entitled to
participate in any retirement, disability, life insurance, saving or other plans
maintained for employees of the Company or to receive any benefits or
compensation not explicitly provided in this Agreement.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New Jersey without regard to
its principles of conflicts of laws.
11. Entire Agreement. This Agreement constitutes the entire understanding
of the parties relating to the subject matter hereof and supersedes all prior
and contemporaneous agreements and understandings, whether oral or written,
relating to the subject matter hereof. The terms of this Agreement may be
modified only by a written instrument executed by the parties hereto.
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12. Notice. Any notice, request, consent, waiver, demand or other
communication required or permitted under this Agreement shall be effective only
if it is in writing and delivered personally or sent by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Company:
Merrimac Industries, Inc.
00 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: President and Chief Executive Officer
If to the Consultant:
Xx. Xxxxxx X. Xxxxxx
00 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
or to such other person or address as either party may designate by notice
to the other and shall be deemed to have been given as of the date so personally
delivered or mailed.
13. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the day and year first written above.
MERRIMAC INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman and
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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