Exhibit 10.5
[LOGO] AEROSONIC CORPORATION
CONSULTING AGREEMENT
This Consulting Agreement ("this Agreement") is made this 20th day of
May 2003 by and between Aerosonic Corporation, a Delaware corporation (the
"Company"), and J. Xxxxxx Xxxxxx (the "Consultant") residing at 000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000.
WHEREAS, the Company wishes to engage the services of the Consultant
as an independent contractor, and Consultant wishes to be engaged by the Company
as such, all on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for these and other valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Consultant
hereby agree as follows:
1. Duration of Agreement. This Agreement between the Company and the
Consultant shall commence on the date first above written and shall be
for a period of one year from such date, unless earlier terminated
pursuant to the provisions of Section 6 hereof. Upon mutual consent,
this Agreement may be extended at the end of the original term for a
period of one year.
2. Duties of Consultant. The Consultant shall serve the Company well and
faithfully and shall, at all times, use his best efforts to promote
the interest of the Company and it subsidiaries. The Consultant shall
comply with all lawful requests and directions given to him by the
President of the Company (the "President") and shall supply the
President with such information and reports as the President may from
time to time reasonably request. All duties of and undertakings by the
Consultant shall be as specifically assigned by the President.
3. Confidential Information. The Consultant shall not disclose the
confidential information made available to him pursuant to this
Agreement or in his prior relationship with the Company or any
subsidiary or affiliate of the Company, to any person other than such
persons as the Company's Board of Directors or the President may
direct or for the Company's purposes. The Consultant shall not use for
his own purpose or for any purposes other than those of the Company,
its subsidiaries or affiliates any information of a confidential
nature in relation to the business of the Company or any subsidiary or
affiliate that the Company may have or may acquire.
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4. Compensation of Consultant. During the term of the Agreement provided
for herein, the Consultant shall be paid a fee of $120,000 per year
plus a car allowance of $18,000 per year, both of which will be paid
on a bi-weekly basis.
5. Benefits. During the term of this Agreement, the Consultant shall be
entitled to participate in and shall receive such health insurance and
retirement benefits from the Company as are afforded to employees of
Company (notwithstanding that Consultant is an independent
contractor), subject to benefit plan restrictions and Company policy
as it may be in effect from time to time.
6. Termination of Agreement. This Agreement shall terminate upon the
death of the Consultant and may be terminated by the Company at its
option, by notice in writing to the Consultant prior to said
termination, upon the occurrence of any of the following events:
(a) The material breach by the Consultant of any provision of
this Agreement, which breach (if capable of being cured) has
not been cured within fifteen (15) days of notice of such
breach;
(b) A determination by the Board of Directors that the
Consultant has committed willful or reckless misconduct,
failed to follow Company policy or a direction from
Management, or committed a material breach of a generally
accepted industry standard since the inception of this
agreement; or
(c) A determination by the Board of Directors that the
Consultant should be discharged for any other reason, with
or without cause.
Upon termination of the Consultants engagement under this Agreement,
neither the Company nor the Consultant shall have any further duties
or obligations hereunder, except that the Consultant shall continue to
be bound in all respects by his obligations concerning confidential
information pursuant to Section 3 hereof and his obligations under
Section 7 hereof, and except as specified in the last sentence of this
Section. The obligations of the Consultant under Section 7 hereof
shall continue for a period of three (3) years from the date of any
form of termination of this Agreement. In the event of a termination
of this Agreement pursuant to Section 6(c) hereof, the Company shall
during the remainder of the one year term specified in Section 1
hereof, continue to pay the Consultant's fee pursuant to Section 4
hereof and provide the Consultant with the benefits provided for
pursuant to Section 5 hereof so long as the Consultant shall not be
materially in breach of any provision of this Agreement.
7. Non-Competition.
(a) The Consultant agrees that from and after the date hereof
and ending on the third anniversary of the termination date
of the Consultant Agreement
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hereunder he will not, directly or indirectly, engage in or
be concerned with or interested in, advise, lend money to,
guarantee the debts or obligations of, or permit his name or
any part there of to be used or employed by, any business
(whether as a proprietor, partner, joint venturer, employer,
agent, employee, consultant, officer, beneficial or record
owner [other than as a passive investor owning less than a
2% interest in a publicly held Company]) which is
competitive in any respect with any of the businesses of the
Company and its subsidiaries as conducted as of the date
this Agreement, during the performance of this Agreement, or
at the date this Agreement is terminated. In the event that
this Agreement is assigned to any entity other than a
subsidiary of the Company, this non-competition clause shall
refer to the businesses of the Company and its subsidiaries
and not those of the assignee as of the date of any such
assignment.
(b) If any of the foregoing provisions relating to the duration,
business or geographic scope of this covenant shall be held
to be more restrictive than permitted by the law of the
jurisdiction in which the Company seeks enforcement thereof
by the final determination of a court of competent
jurisdiction, and all appeals therefore shall have failed or
the time for such appeals shall have expired, such
provision, shall be limited to the extent permitted by law.
(c) It is agreed that it would be impossible to fully compensate
the Company for damages for breach of the obligations of the
Consultant hereunder. Accordingly, the Consultant and the
Company specifically agree that the Company and any of its
affiliates or successors shall be entitled to temporary and
permanent injunctive relief to enforce such obligations and
that such relief may be granted without the necessity of
proving actual damages.
8. Inventions. The Consultant hereby warrants and represents that during
the course of his prior employment and other relationship with the
Company and its subsidiaries, he has promptly disclosed in writing to
the Company and its subsidiaries any and all conceptions and ideas for
inventions and improvements, relating to the Company and its
subsidiaries, and the Consultant hereby confirms that he shall
continue to do so in the performance of this Agreement. Further, the
Consultant hereby assigns and agrees to assign all of his interests in
any such inventions and proprietary rights, royalty-free, to the
Company or its nominee. Whenever requested to do so by the Company,
the Consultant shall execute and deliver to the Company any and all
applications, assignments or other instruments to confirm the
Company's interest in such inventions and proprietary rights. Whenever
requested to do so by the Company, the Consultant shall execute and
deliver to the Company any and all applications, assignments and other
instruments and do such other acts that the Company shall request to
apply for
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and obtain any patents and copyrights that may relate to the Consultant's
prior relationship with the Company and his services under this Agreement.
9. Release of Employment Claims. In consideration of this Agreement, other
compensation paid by the Company to the Consultant through the date hereof,
and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Consultant hereby agrees as follows. The
Consultant knowingly and voluntarily releases and forever discharges the
Company and its subsidiaries, officers, directors, agents and other
representatives (collectively the "Releasees") of and from any and all
claims that the Consultant has or may have against the Releasees, arising
out of any employment contract or any employment relationship the
Consultant has or may have with the Company or any of its subsidiaries. The
Consultant further warrants, represents and certifies that all employment
agreements that he has or may have with the Company or any of its
subsidiaries is hereby terminated and shall have no further force or
effect.
10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, without
regard to the principles of conflicts of law thereof.
11. Entire Agreement. Waiver. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and there are no
terms or conditions relating to the subject matter hereof other than those
contained in this Agreement. No variation hereof shall be deemed valid
unless in writing and signed by the parties hereto and no discharge of the
terms hereof shall be deemed valid unless by full performance by the
parties hereto or by a writing signed by the parties hereto. No waiver by
either party of any provision or condition of this Agreement to be
performed by the Consultant or the Company shall be deemed a waiver of
similar or dissimilar provisions or conditions at the time or at any prior
or subsequent time. It is agreed that this Agreement supersedes and
nullifies all previous employment agreements and employment arrangements
between the parties.
12. Severability. Each provision of this Agreement is intended to be severable
from the others so that if any provision or term hereof is determined to be
illegal or invalid form any reason whatsoever, such illegality or
invalidity shall not be affect the validity of the remaining provisions and
terms hereof.
13. Assignment. This Agreement may not be assigned without prior written
consent of the parties hereto, except that the Company many assign this
Agreement: (i) to any of the Company's divisions, subsidiaries or
affiliates without the Consultant's consent, or (ii) upon the Consultant's
prior consent, which consent shall not be unreasonably withheld, to any
assignees, licensees or purchaser of the assets of the Company.
14. Notices. Any notice or other communication given or rendered hereunder by
either party hereto shall be in writing and delivered personally or sent by
registered or
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citified mail, postage prepaid, if to the Company, addressed to the Company
at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxx X.
Xxxxxxx or his designee, and if to the Consultant, addressed to the
Consultant at his residence address as set forth above.
15. Captions. The paragraph captions are inserted only as a matter of
convenience and reference and in no way define, limit or describe the scope
of this Agreement or the intent of any provision hereof.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first above written.
"the Consultant":
/s/ J.Xxxxxx Xxxxxx
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J. Xxxxxx Xxxxxx
the "Company":
Aerosonic Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
[SEAL] Xxxxxx Xxxxxxx
Notary Public - State of Florida
My Commission Expires OCT 18, 2005
Commission DD050648
Bonded By National Notary Assn.
/s/ Xxxxxx Xxxxxxx
