EXHIBIT 10.12
MANAGEMENT SERVICES AGREEMENT
Management Services Agreement
This Management Services Agreement ("Agreement") is made this
3rd day of December, 1998, by, between and among Sumx Inc., a
Mississippi Corporation ("Sumx"), Xxxxxxx & Xxxxxx Capital
Corporation, a Mississippi Corporation ("B&K") and Xxxxxx X.
Xxxxxxx, Xx., an individual ("Xxxxxxx").
Background
WHEREAS, Sumx and B&K entered into a Series A Preferred Stock
Purchase Agreement ("SPA") effective December 3, 1998; and
WHEREAS, Sumx desires to obtain the management services of
Xxxxxxx and B&K desires to retain the services of Xxxxxxx as an
employee director and executive officer of B&K;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as
follows:
1. For a term of up to two years Sumx will pay B&K $90,000 per
year for the management services of Xxxxxxx on a consulting
basis while Xxxxxxx provides management services to Sumx and
remains an employee, director and executive officer of B&K. B&K
will be responsible for Lanneau's compensation, health,
retirement and other benefits and will continue established
compensation plans during the term of this Agreement.
2. Xxxxxxx will not disclose to Sumx, or use on behalf of Sumx,
any confidential or proprietary information of B&K and will not
disclose to B&K, or use on behalf of B&K any confidential or
proprietary information of Sumx, unless authorized to do so.
3. Without additional consideration Xxxxxxx shall promptly and
fully disclose and assign to Sumx and Xxxxxxx hereby assigns all
worldwide inventions, discoveries and improvements and invention
notebooks (a) arising out of, or in any way connected with, suggested
by, or pertaining to Lanneau's relationship with or the business of
Sumx; and (b) made or conceived by Xxxxxxx, solely or jointly
with others, during engagement with Sumx or within a period of
one year after the termination of such engagement. All
inventions, discoveries and improvements covered by this
Agreement shall be and remain Sumx's property, whether or not
disclosed, assigned or patented.
4. Both during and after his engagement with Sumx, Xxxxxxx shall
assist Sumx in every proper way, without additional compensation
other than reimbursement of reasonably incurred expenses, to
obtain patents in any and all countries selected by Sumx on any
inventions, discoveries or improvements covered by this
Agreement.
5. a) Xxxxxxx recognizes that over time and at great expense,
Sumx has developed a large body of confidential or proprietary
information and will continue to develop such information in the
future. Xxxxxxx agrees that all of the information Xxxxxxx
obtains during and as a result of his engagement with Sumx
concerning (but not limited to) research and development
efforts, features or methods of manufacture, processes, sales
data, operating, profit, marketing and research plans, formulas,
costs, training materials, treatment techniques, designs,
computer software or hardware, customer proposals, customer and
competitive information and financial and other projections
relating to any business or field of endeavor or investigation
by Sumx and which Sumx has not otherwise made public, whether or
not developed by Xxxxxxx, is the property of Sumx and is
considered by Sumx to be confidential or proprietary to it
whether or not same are marked "Confidential."
b) Xxxxxxx acknowledges that all of the information of the
type referred to in paragraph 5(a) shall be received or
developed and maintained by Xxxxxxx in confidence and shall be
used by Xxxxxxx only so long as Xxxxxxx provides services to
Sumx and solely on behalf of Sumx.
c) Xxxxxxx shall not copy or cause to be made any copies,
facsimiles, recordings, reproductions, samples, abstracts or
summaries of the types of information referred to in paragraph
5(a) or remove same from the premises of Sumx except as may be
necessary for the proper performance of Lanneau's services.
Upon termination of this management services agreement for any
reason whatsoever, Xxxxxxx shall immediately and without further
request deliver all originals and copies, summaries, facsimiles,
abstracts, recordings and reproductions of such information
obtained during and as a result of his engagement whether or not
confidential or proprietary to Sumx and Xxxxxxx shall not use
such information for Lanneau's own benefit or for the benefit of
any other person or entity or disclose any such information to
any person or entity without the prior written consent of Sumx.
6. a) As a result of his engagement with Sumx, Xxxxxxx will
obtain knowledge of the types of information referred to in
paragraph 5(a) and of Sumx's customers, including without
limitation, customer buying contacts, methods of operations, and
product needs, and will develop goodwill and rapport with
customers and prospective customers of Sumx. In many instances
the individuals at Sumx's customers and prospective customers
responsible for the purchase of the products, services and
equipment sold by Sumx are also responsible for the purchase of
products, service and equipment sold by Sumx's affiliated and
subsidiary companies. Such information, goodwill and rapport,
whether developed by Xxxxxxx or by others in the Sumx
organization are valuable assets of Sumx.
b) In order for Sumx to protect such information and
relationships, if Xxxxxxx is engaged by Sumx in a sales or sales
management capacity, then for the eighteen (18) consecutive
calendar months immediately following termination of engagement
(irrespective of the reason for such termination), Xxxxxxx shall
not directly or indirectly, for Lanneau's benefit or the benefit
of any other person or entity, call upon, communicate or attempt
to communicate with any customer or prospective customer or any
representative of any customer or prospective customer of Sumx
with whom Xxxxxxx had any contact, communication or for which
Xxxxxxx had supervisory responsibility during the eighteen (18)
consecutive calendar months preceding termination of Sumx
employment if such contact or communication is with a view to or
for the purpose of selling, offering for sale, influencing the
purchase of, or otherwise providing any product, service or
equipment competitive with any product, service, or equipment
sold, offered for sale, provided, or under development by Sumx
or any of its subsidiary or affiliated companies. As it relates
to a Sumx subsidiary or affiliated company, the foregoing
proscription shall only apply where a customer or prospective
customer representative responsible for the purchase of the
products, services, or equipment of Sumx is also responsible for
the purchase of the products, services, or equipment of a Sumx
subsidiary or affiliated company. The eighteen month period
referred to herein, shall be extended by one month for each
month or portion of each month during which Xxxxxxx is in
violation of this paragraph 6(b). For purposes of this
paragraph 6, the phrase "prospective customer of Sumx" shall
include only those prospective customers to whom Sumx has made a
written proposal during the twelve (12) consecutive calendar
months preceding Lanneau's disengagement with Sumx, or has made
at least two sales visits.
7. If engaged by Sumx in other than a sales or sales management
capacity, then for the twelve (12) consecutive calendar months
immediately following termination from Sumx, Xxxxxxx shall not
accept or continue employment with or, as a self-employed
person, act as a competitor of Sumx, if any part of the duties
of such employment are such that Xxxxxxx could reasonably be
expected to reveal, base judgments upon or otherwise use any of
Sumx's proprietary and confidential information or trade secrets.
8. For the eighteen (18) consecutive calendar months immediately
following termination of Lanneau's Sumx engagement, Xxxxxxx
shall not induce or encourage, or solicit, either directly or
indirectly, any employee of Sumx or any affiliated or subsidiary
company to terminate their employment with Sumx or such company.
9. This Agreement, and the rights of the parties hereto, shall
be governed by and construed in accordance with the laws of the
State of Mississippi as such laws apply to agreements among
Mississippi residents made and to be performed entirely within
the State of Mississippi.
10. Each party has the right to terminate this agreement on 30
days written notice to the other parties. However, no
termination shall invalidate the provisions of this Agreement
which by their terms are to be performed or continue after
termination, including without limitation, Sections 2 through 9
and Sections 11 through 14.
11. If any provision of this Agreement is held to be invalid or
unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
12. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors,
assigns, administrators, executors and other legal
representatives.
13. This Agreement may be executed in one or more counterparts,
each of which will be deemed an original but all of which
together shall constitute one and the same agreement.
14. This Agreement constitutes the full and entire understanding
and agreement between the parties with regard to the subjects
hereof and thereof and no party shall be liable or bound to any
other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein
and therein.
IN WITNESS WHEREOF, the parties hereto have executed this
agreement as of the date first above written.
Xxxxxxx & Xxxxxx Capital Corporation
By: /s/ W. Page Xxxxx
___________________
President & CEO
Sumx Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
______________________
Vice President
Xxxxxx X. Xxxxxxx, Xx.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
__________________________
Individually
