Exhibit 10
CONSULTANT AGREEMENT
This AGREEMENT made this twenty-third day of July 1998, between AXIOM INC.
(the Company) and C. Xxxxxx Xxxxxxxx III, (the Consultant).
WHEREAS, the Consultant is desirous of obtaining the protections and benefits
contained in this Agreement, in return for which he agrees to the restrictive
covenants contained herein.
NOW THEREFORE in consideration of the facts, mutual promises, and covenants
contained herein, and intending to be legally bound hereby, the Company and
the Consultant agree as follows:
1. RETENTION AND DUTIES
The Company hereby retains the Consultant and the Consultant hereby
agrees to serve as a consultant to the Company. The Consultant shall
initially serve as a director of the Company and as such, Chairman of the
Company's Board of Directors. In such capacity, the Consultant shall have
such powers and shall perform duties and services consistent with such
capacity as may be assigned or delegated to him from time-to-time by the
Board of the Company. The Board of Directors of the Company shall be
entitled to remove Consultant from his position as Chairman of the
Company's Board of Directors at any time with or without cause (such
removal shall not alter the provisions of Section 4 hereof with respect
to the timing and terms by which the Company shall be entitled to
terminate this Agreement.) and the Company shall not be obligated to
nominate or cause the election of Consultant as a director of the
Company. The Consultant shall devote such business time and attention as
is agreed from time to time to the business and affairs of the Company,
such time not to be less than five days per calendar month and will use
his best efforts to promote the interests of the Company,
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2. COMPENSATION AND BENEFITS
(a) The Company shall pay the Consultant a fee of $75,000 per annum prorated
for partial years, payable monthly in equal installments as invoiced by
the Consultant, which amount includes compensation to the Consultant in
his capacity as a director of the Company.
(b) The Consultant shall be eligible for participation in the Share Option
Plan run by the Company as approved from time to time by the Board.
4. TERMINATION OF AGREEMENT BY THE COMPANY.
Notwithstanding any other provision of this Agreement and any and all
of the Company's obligations or liabilities under this Agreement shall
be terminated immediately, in any of the following circumstances:
(a) DEATH:
If the Consultant dies, the further accrual of all payments and benefits
thereunder shall cease at the end of the month in which Consultant's
death shall occur. All payments and benefits thereunder which have
accrued prior to the end of such month shall be promptly paid to the
executor or administrator of Consultant's estate or pursuant to such
other specific directions as Consultant has previously provided to the
Company in writing.
(b) DISCHARGE FOR CAUSE:
The Company may discharge the Consultant at any time, for "cause", which
shall include but not be limited to criminal conduct (whether or not
related to the Consultant's employment) other that minor traffic
offenses; any material breach by the Consultant of this Agreement; gross
negligence or malfeasance by the Consultant in the performance of his
duties for the Company; self-dealing; and/or any violation of any
expressed direction or any reasonable rule or regulation established by
the Company from time-to-time regarding the conduct of its business.
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(c) DISCHARGE FOR OTHER REASONS
The Company may discharge the Consultant at any time, for any or no
reason, by providing three (3) months' prior written notice. At the
Company's option, the Company may elect to sever the Agreement with the
Consultant at any time during this three (3) month period, in which
event the Consultant shall be compensated for the remainder or said
three (3) month period.
5. TERMINATION OF EMPLOYMENT BY THE CONSULTANT:
This Agreement may be terminated by the Consultant upon not less than
one (1) month's written notice to the Company. Upon the effective date
of such voluntary termination, any and all of the Company's obligations
under this Agreement shall terminate.
6. PROPRIETARY RIGHTS, CONFIDENTIALITY, NON-COMPETITION, INVENTIONS, ETC.
The Company designs and manufactures various electronic equipment and
systems (hereinafter referred to as "Products"), and the Company is
unique in that it possesses expertise and "Know-How" in the design,
manufacture, and sale of Products. During the course of this Agreement
with the Company, the Consultant will have access to trade secrets, and
proprietary and confidential information pertaining to the Company and
its Products, such as, but not limited to, its short and long range
business plans, its processes and procedures, sales and distribution
methods, suppliers and customer lists, customer prospects, personnel
records, research and development projects, manufacturing processes, and
"Know-How" (all the foregoing hereinafter referred to as "Proprietary
Information"). This Proprietary Information was designed and developed
by the Company, at great expense and over lengthy periods of time, is
unique, secret, and confidential, and constitutes the exclusive property
and trade secrets of the Company, and any use of such property and trade
secrets by the Consultant, other than for the sole benefit of the
Company, would be wrongful and would cause irreparable injury to the
Company.
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However, Proprietary Information shall not include information which has
become publicly known through no wrongful act of Consultant,
information which has been rightfully received from a third party
authorized to make such information available without restriction,
information which has been approved for release by written authorization
of the Company, and information which must be disclosed pursuant to
applicable law or in connection with the enforcement of the Agreement.
(a) The Consultant shall not, at any time, without the expressed written
consent of the Company, publish, disclose or divulge to any person,
firm, corporation, or use directly, indirectly or for his own benefit or
the benefit of any person, firm, or corporation other than the Company,
Proprietary Information, property, trade secrets, or confidential
information of the Company, its subsidiaries, and its affiliates learned
or obtained by the Consultant from the Company, including, but not limited
to, the information and things set forth above. This obligation shall be
continuing and shall not end with the termination of this Agreement.
Consultant further agrees that, immediately upon the termination of this
Agreement, for any reason, he shall return to the Company all property
of the Company including, but not limited to, Proprietary Information.
(b) The Consultant shall not, during the term of this Agreement and for
twelve (12) months after:
(i) Directly or indirectly induce or attempt to influence employee the
Company to terminate his employment with the Company, if such
employee was employed by the Company at the time of the termination
of this Agreement or if such employee terminated his employment
for any reason during the six (6) months preceding the termination
of this Agreement.
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(ii) Engage in (as a principal, partner, director, officer, agent,
consultant, employee, independent contractor, or otherwise) or be
financially interested in, any business which is involved in business
activities which are the same as, similar to, or in competition with
the Products. However, nothing contained in this sub-paragraph shall
prevent the Consultant from being the holder or beneficial owner for
investment purposes only of any class or equity securities of a
company whose securities are traded on a national securities exchange
or NASDAQ if the Consultant (together with his spouse, children,
siblings, and parents) neither holds, nor is beneficially interested
in, more that five percent (5%) of any single class of the securities
in the company.
(c) The Consultant shall not, for six (6) months after the termination of
this Agreement for any reason, without the prior written approval of the
Company, either solely or jointly with, or as manager or agent for, any
person, corporation, trust, joint venture, partnership, or other
business entity, directly or indirectly, solicit any customers or
accounts that were customers or accounts (or legal successors to
customers or accounts) of the Company during the term of this Agreement.)
(d) The Consultant shall fully and promptly disclose and assign to the
Company for its sole benefit, to be utilized in any manner it sees fit,
and without additional compensation, all ideas, discoveries, inventions
and improvements, patentable or not, and all writings (including the
Copyright) which are made, conceived or reduced to practice by the
Consultant, alone or with others, during or after working hours, either
on or off the job during the term of his employment, or within six (6)
months thereafter, which are related to the Products, or which results
from tasks assigned to the Consultant by the Company. The Company may,
but is shall not be required to, obtain at its own expense and for its
sole benefit, patents or statutory copyright for any patentable idea or
copyrightable writing referred to above, and he shall co-operate with
the Company in executing any documents required in connection therewith.
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(e) The Consultant acknowledges that the restrictions contained in this
Paragraph 6, in view of the nature of the business in which the Company
is engaged, are reasonable and necessary to protect the legitimate
interests of the Company, and that any violation of those restrictions
would result in irreparable injury to the Company. The Consultant
therefore agrees that in the event of his violation of any of those
restrictions, the Company shall be entitled to obtain from any court of
competent jurisdiction preliminary and permanent injunctive relief
against the Consultant, in addition to damages from the Consultant
and an equitable accounting of all commissions, earnings, profits, and
other benefits arising from such violation, which rights shall be
cumulative and in addition to any other rights or remedies to which the
Company may be entitled.
(f) The Consultant agrees that if any or any portion of the foregoing
covenants or the application thereof, is construed to be invalid or
unenforceable, the remainder of such covenant or covenants or the
application thereof shall not be affected and the remaining covenant
or covenants will then be given full force and effect without regard
to the invalid or unenforceable portions. If any covenant is held to be
unenforceable because of the area covered, the duration thereof, or the
scope thereof, the Consultant agrees that the Court making such
determination shall have the power to reduce the area and/or the
duration, and/or limit the scope thereof, and the covenant shall then be
enforceable in its reduced form.
7. COMPLETE UNDERSTANDING.
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This Agreement constitutes the complete understanding between the
parties in respect to the subject matter hereof and supersedes all prior
and contemporary agreements and understandings, inducements or
conditions, expressed or implied, written or oral, between the Company
and the Consultant, and cannot or modified except by written agreement
signed by the parties.
8. BINDING EFFECT.
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This Agreement shall be binding upon and shall inure to the benefit of
of the Company and its successors, and shall be binding upon the
Consultant, his heirs and legal representatives.
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9. NO ASSIGNMENT BY THE CONSULTANT.
This Agreement is personal to the Consultant, and the Consultant may not
assign or delegate any of his rights or obligations hereunder without
first obtaining the express written consent of the Company.
10. WAIVER OF RIGHTS. If in one or more instances either party fails to
insist that the other party perform any of the terms of this Agreement,
such failure shall not be construed as a waiver by such party of any
past, present, or future right granted under this Agreement; the
obligations of both parties under this Agreement shall continue in full
force and effect.
11. PRESUMPTIONS.
This Agreement shall be interpreted without regard to any presumption or
rule requiring construction against the party who caused this Agreement
to be drafted.
12. GOVERNING LAW.
This Agreement and all questions relating to its validity,
interpretation, performance, and enforcement shall be governed by and
construed in accordance with the law of New Jersey.
IN WITNESS WHEREOF, the parties hereto intending to be legally bound, have
executed this Agreement as of the date first above written.
Axiom Inc.
/s/ C. Xxxxxx Xxxxxxxx III /s/ Xxxxxx X. Xxxxxxx
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C. Xxxxxx Xxxxxxxx III Xxxxxx X. Xxxxxxx
President & CEO
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