CONSULTING AGREEMENT POC #28-0145
Exhibit
10.1
POC
#28-0145
This
Consulting Agreement (hereinafter referred to as the “Agreement”) is entered
into on this 15th day of August, 2008 between Precision Optics Corporation,
Inc., a Massachusetts Corporation (hereinafter referred to as "POCI") and Xx.
Xxxx X. Xxxxxxxxxx (hereinafter referred to as "Consultant").
WHEREAS,
POCI desires to engage the services of Consultant to serve as its Senior Vice
President, Finance, Chief Financial Officer and Clerk as an independent
contractor and not as an employee and Consultant has agreed to perform these
services for POCI.
THEREFORE,
it is agreed as follows:
| 1. |
Position
and Services.
Consultant shall serve as POCI’s Senior Vice President, Finance, Chief
Financial Officer and Clerk on a part-time basis, for an average
of two to
three days per week. Consultant will report to POCI’s Chief Executive
Officer. Consultant agrees to faithfully and to the best of his ability
perform the duties required by this position and such additional
duties as
may be reasonably assigned by the Chief Executive Officer or POCI’s board
of directors. Such duties shall include, but not be limited to, managing
the audit of POCI’s year end financials and signing the Xxxxxxxx-Xxxxx
certification for POCI’s annual report as the principal accounting
officer.
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2.
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Period
of Performance.
Consultant's services shall commence on August 18, 2008 and shall
continue
until February 18, 2009 unless otherwise terminated according to
the
provisions of paragraph 4. Following February 18, 2009, this Agreement
shall automatically continue on a month to month basis on the same
terms
unless terminated by either party with 30 days notice. Notwithstanding
the
foregoing, Consultant will begin training and transitioning into
the
positions described in paragraph 1 beginning August 13, 2008.
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3.
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Compensation.
As compensation for the services provided by Consultant, POCI agrees
to
pay Consultant at a rate of $1,384.62 per week commencing August
18, 2008.
Compensation during the transition period of August 13, 2008 until
August
17, 2008 will be $1,384.62. Consultant will not receive any benefits
including, but not limited to, health insurance, life insurance,
vacation
or sick time.
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4.
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Termination.
Either party may terminate this Agreement by providing 30 calendar
days
written notice to the other party. Consultant shall be paid for all
work
performed and accepted by POCI prior to the termination of this
Agreement.
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5.
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Indemnification.
Consultant shall be indemnified by POCI to the full extent provided
in
POCI’s By-laws in his role as Chief Financial Officer.
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6.
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Rights
to Materials.
The written reports and other written materials furnished by Consultant
to
POCI in connection with the performance of consulting services hereunder
shall remain the exclusive property of POCI. Therefore, Consultant
agrees
to promptly return, following the termination of this Agreement or
upon
earlier request by POCI, any written materials in Consultant’s possession
supplied by POCI in conjunction with Consultant’s services under this
Agreement or generated by Consultant in performance of consulting
services
under this Agreement.
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7.
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Confidentiality.
In connection with his performance of consulting services hereunder,
Consultant will have access to confidential information, records,
data,
customer lists, lists of product sources, specifications, trade secrets
and other information which is not generally available to the public
and
which POCI and Consultant hereby agree is proprietary information
of POCI
(“Confidential Information”). During and after the performance of
consulting services hereunder, Consultant shall not, directly or
indirectly, disclose the Confidential Information to any person or
use any
Confidential Information, except as is required in the course of
performing duties under this Agreement or with the prior written
consent
of POCI. All Confidential Information as well as records, files,
memoranda, reports, plans, drawings, documents, models, equipment
and the
like, including copies thereof, relating to POCI’s business, which
Consultant shall prepare or use or come into contact with, shall
be and
remain POCI’s sole property, and upon termination of this Agreement,
Consultant shall return all such materials to POCI as set forth in
paragraph 6.
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8.
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Business
Opportunities.
Consultant shall not take any business opportunity Consultant learns
about
in the course of performing services under this Agreement unless
first
disclosing the business opportunity to POCI.
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9.
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Xxxxxxx
Xxxxxxx.
By executing this Agreement, Consultant acknowledges that he is expressly
prohibited from purchasing or selling securities of POCI based on
any
material non-public information obtained during the course of performing
consulting services for POCI. In addition, Consultant is prohibited
from
informing, or “tipping,” any other person about such material information.
Consultant also agrees not to trade in the Company’s stock from the
15th
day of the third month in any quarter (i.e. March, June, September,
December) until 48 hours after the financial results for the quarter
are
officially released.
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10.
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Governing
Law.
This Agreement shall be governed and construed in accordance with
the laws
of the Commonwealth of Massachusetts. Each of the parties hereto
irrevocably submits to the exclusive jurisdiction of the courts located
in
Massachusetts for the purposes of any suit, action or other proceeding
contemplated hereby or any transaction contemplated
hereby.
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11.
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Arbitration.
Any controversy or claim arising out of or relating to this Agreement,
or
breach thereof, shall be settled by binding arbitration in Boston,
Massachusetts in accordance with the expedited procedures of the
Rules of
the American Arbitration Association, and judgment upon the award
may be
rendered by the arbitrator and may be entered in any court having
jurisdiction thereof.
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12.
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Compliance
with Other Laws and Regulations.
Consultant agrees to comply with all applicable laws and regulations
of
the United States of America while performing services for
POCI.
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13.
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Foreign
Corrupt Practices Act.
Consultant will be familiar with and comply with the provisions of
the
United States Foreign Corrupt Practices Act, including any amendments
which may be effected during the term hereof. In particular, in carrying
out services under this Agreement, Consultant will not make or offer
to
make the unlawful payment of money or anything else of value
to:
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| (a) |
any
government official of any country,
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| (b) |
any
political party of any country,
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| (c) |
any
candidate of any political party of any country,
or
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| (d) |
any
other person, while knowing or having reason to know, that such person
will make an unlawful payment to a government official, a political
party,
or a candidate of a political party of any
country.
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Any
breach of this paragraph will result in the termination of this Agreement and
will entitle POCI to the return of any amounts paid hereunder to
Consultant.
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14.
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Complete
Integration.
This Agreement replaces all previous agreements between POCI and
Consultant, if any, and the discussions relating to the subject matters
hereof and constitutes the entire agreement between POCI and Consultant
with respect to the subject matter of this Agreement. This Agreement
may
not be modified in any way by any verbal statement, representation
or
agreement made by any employee, officer or representative of POCI,
or by
any by any written agreement unless it is signed by an officer of
POCI and
by Consultant.
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15.
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Severability.
In the event that any provision of any paragraph of this Agreement
shall
be deemed to be invalid or unenforceable for any reason whatsoever,
it is
agreed such invalidity or unenforceability shall not affect any other
provision of such paragraph or of this Agreement, and the remaining
terms,
covenants, restrictions or provisions in such paragraph and in this
Agreement shall remain in full force and effect and any court of
competent
jurisdiction may so modify the objectionable provision as to make
it
valid, reasonable and enforceable.
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16.
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Counterparts.
This Agreement may be executed in counterparts, and each counterpart
shall
have the same force and effect as an original and shall constitute
an
effective, binding agreement on the part of each of the
undersigned.
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17.
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Notices.
Any notice or payments given by one party to the other shall be in
writing
and deemed to have been properly given or paid if deposited with
the
United States Postal Service, registered or certified mail, addressed
as
below.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the respective
dates set forth below.
| PRECISION OPTICAL CORPORATION: | CONSULTANT: Xxxx X. Xxxxxxxxxx |
| 00 Xxxx Xxxxxxxx | 000 Xxxxxxxxx Xxx. |
| Xxxxxxx, XX 00000 | Xxxxx Xxxxxx, XX 00000 |
| By: /s/Xxxxxxx X. Xxxxxx | By: /s/Xxxx X. Xxxxxxxxxx |
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Xxxxxxx
X. Xxxxxx
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Xxxx
X. Xxxxxxxxxx
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Its:
Chief Executive Officer
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| Date: August 15, 2008 | Date: August 15, 2008 |
