Exhibit 10.29
CONSULTING AND SEVERANCE AGREEMENT
AGREEMENT, dated as of July 1, 2004, between MXL Industries, Inc., a
Delaware corporation with principal executive offices at 0000 Xxxxxxxxxxx Xxxx,
Xxxxxxxxx, XX 00000 (the "Company") and Xxxxx Xxxxx, residing at 0000 Xxxxxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000 ("Consultant").
W I T N E S S E T H
WHEREAS, Consultant desires to terminate his employment with the
Company; and
WHEREAS, the Company desires to offer severance payments to Consultant
in appreciation for Consultant's past loyal service; and
WHEREAS, the parties wish to settle fully and finally any claims,
disputes and obligations relating to Consultant's employment with the Company
and the termination thereof; and
WHEREAS, the Company desires to engage Consultant to perform consulting
services for the Company, and Consultant desires to perform such services, on
the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the mutual promises,
covenants, and conditions herein contained and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto intending to be legally bound hereby agree as follows:
Section 1. Consultant's Services.
The Company hereby retains Consultant, and Consultant hereby agrees to
perform for the Company, consulting and advisory services, upon the terms and
conditions set forth in this Agreement. Consultant shall devote such time and
effort to the performance of Consultant's duties under this Agreement as shall
be reasonably necessary for the performance thereof. The manner in which the
consulting services are to be performed shall be determined by Consultant in
consultation with the Company.
Section 2. Term.
The term of this Agreement (the "Term") shall commence on the Effective
Date (as hereinafter defined) and end on the second anniversary of the Effective
Date, unless earlier terminated as provided in Section 5(g). Consultant
acknowledges and agrees that his relationship with the Company, whether as a
consultant or otherwise, shall terminate at the end of the Term.
Section 3. Compensation.
During the Term, subject to all the terms and conditions of this
Agreement, the Company shall pay to or provide Consultant with the following:
(a) Fees. The Company shall pay Consultant, as compensation for all
services to be rendered by Consultant under this Agreement, a consulting fee of
$4,357.97, less applicable federal, state, local and other legally required
withholdings, payable bi-weekly (the "Fees").
(c) Benefit Plans. Consultant shall be entitled to participate in the
Company's benefit plans as follows:
(i) Consultant will be permitted to participate in the Company's
medical plan, to the extent eligible; provided that if Consultant
becomes eligible to participate in a health insurance plan of another
employer or Medicare, the Company shall have the option to terminate
his health insurance coverage then in effect. The Company may at any
time, terminate any of the plans or benefits with respect to its
employees, to the extent permitted by law, without any obligation to
Consultant.
(ii) the Company shall maintain the group life insurance policy
covering Consultant on the date hereof.
The Company shall bear the cost of such benefits to the same extent (which shall
be subject to change from time to time) as the Company bears the cost of such
benefits for management personnel of the Company, and Consultant shall bear any
balance of such cost.
(d) 401(k) Plan. During the Term, Consultant shall have the option to
maintain any investments held by Consultant through the Company's 401(k) Plan.
Section 4. Expenses.
The Company shall reimburse Consultant promptly for any out-of-pocket
expense incurred by him in connection with rendering services hereunder upon
submission of a xxxx therefor, provided that the Company gave its prior written
approval for such expense.
Section 5. Nondisclosure and Noncompetition.
(a) Confidentiality.
(i) Consultant will, during the Term and thereafter, treat all
Confidential Information (as defined below) of the Company and its
respective Customers (as defined below) and affiliates confidentially.
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Consultant will not discuss or disclose such Confidential Information,
directly or indirectly, with or to any person who is not an authorized
officer or authorized employee of the Company. Consultant will not use
any Confidential Information of the Company or its Customers or
affiliates, or any other property of the Company, other than as is
necessary in connection with his performance of consulting services
hereunder or as specifically directed by the Company, or in any way
which is detrimental to the Company. Consultant will not use any
Confidential Information of GP Strategies ("GP") or its Customers or
affiliates, or any other property of GP, in any manner not specifically
directed by GP, or in any way which is detrimental to GP.
(ii) Consultant agrees that all Confidential Information, together
with all notes, drawings, and records relating thereto, all computer
disks containing any Confidential Information, and all copies or
facsimiles of any of the foregoing (in any media), in Consultant's
possession are the exclusive property of the Company or GP, as the case
may be. Consultant will not remove from the Company's premises any
notes or records relating to Confidential Information of the Company or
copies or facsimiles thereof (on any media) or any other property of
the Company or any Customer or affiliate of the Company, except in the
furtherance of the business of the Company. Consultant will promptly,
upon termination of this Agreement for any reason and the request of
the Company, deliver to the Company without retaining a copy thereof
and will not keep in Consultant's possession, or recreate or deliver to
anyone else, any or all of such Confidential Information or other
property. Consultant will not remove from GP's premises any notes or
records relating to Confidential Information of GP or copies or
facsimiles thereof (on any media) or any other property of GP or any
Customer or affiliate of GP. Consultant will promptly deliver to GP
without retaining a copy thereof and will not keep in Consultant's
possession, or recreate or deliver to anyone else, any or all of such
Confidential Information or other property.
(iii) Notwithstanding the foregoing, Consultant may use
Confidential Information as is necessary to enforce Consultant's rights
under this Agreement, provided that, in the event of litigation
concerning any such matter, Consultant will stipulate to entry of a
protective order limiting Consultant's use of Confidential Information
to the litigation or as otherwise permitted hereunder, prohibiting its
dissemination to the public or otherwise for reasons not permitted
hereunder and requiring its return at the conclusion of such
proceedings.
(iv) The term "Confidential Information" means all confidential
information in any way concerning the activities, business, or affairs
of the Company or GP, as the case may be, or their respective Customers
or affiliates. Confidential Information includes, without limitation,
information, observations and data concerning trade secrets,
inventions, or know-how of proprietary processes, together with all
marketing, sales, financial, and research information; information
concerning projects in research and development, or marketing plans for
any products or projects; information concerning the technology,
designs, or computer systems and programs of the Company or GP, as the
case may be; and other information not generally known to the public
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concerning the business practices, activities, and business affairs of
the Company or GP, as the case may be, or their respective Customers or
affiliates. The term "Customer" means all past, present and prospective
customers of the Company or GP, as the case may be.
(b) Trademarks, Etc. During and after the Term, Consultant
will have no right, title, or interest in any trademark, trade name, or
character names belonging to or used by the Company or GP or any material or
matter of any sort prepared for or used in connection with advertising,
broadcasting, or promotion of the services provided by the Company or GP,
whether produced, prepared, published, or broadcast in whole or in part by
Consultant, nor will Consultant make any claims with respect thereto. Consultant
recognizes that the Company or GP, as the case may be, has and will continue to
have and retain the sole and exclusive rights in any and all of the
aforementioned trademarks, trade names, character names, material, or matter.
(c) Non-competition and No Disparagement. Consultant will not,
during the Term and thereafter, directly or indirectly disparage the Company or
GP, any of the Company's or GP's products or services, or any of the Company's
or GP's then current or former directors, officers, or employees. During the
period ending twenty-four (24) months after the Effective Date, Consultant will
not:
(i) solicit the employment of any employee of the Company or GP
for one year after termination of such person's employment with the
Company or GP;
(ii) encourage or induce any employee of the Company or GP to
terminate his or her employment with the Company or GP;
(iii) contact or solicit, or direct or assist others to contact or
solicit, any Customers, suppliers, or other business associates of the
Company or GP;
(iv) engage in a diversion of good-will regarding the business
conducted by the Company or GP;
(v) otherwise interfere in any way with the relationships between
the Company or GP and their respective Customers, suppliers, lenders,
or business associates; or
(vi) compete with the Company in the business of optical molding,
including by: (A) serving as a consultant to any person if Consultant
knows or should have known that such consulting services would help
such person compete against the Company or GP, (B) having any interest
(as owner, principal, general or limited partner, agent, employee,
officer, director, or stockholder) in any person which competes with
the Company or GP, other than a passive interest of less than 5% of the
voting stock of a publicly traded company, (C) establishing an entity
that engages in the business of the Company or GP, (D) acquiring an
existing entity that engages in such business, (E) otherwise engaging
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in such business; (F) participating in the management of any entity
that engages in such business, or (G) serving (or having a nominee
serve) with a competing entity as an officer, director, manager, or
employee having duties dealing with such competing business.
(d) Inventions. Consultant hereby assigns to the Company
Consultant's entire right to all Company Inventions (as hereinafter defined),
which will be the sole and exclusive property of the Company whether or not
subject to patent, copyright, trademark, or trade secret protection. Consultant
also acknowledges that all original works of authorship that are made by
Consultant (solely or jointly with others), within the scope of Consultant's
services hereunder, and that are protectable by copyright, are "works made for
hire," as that term is defined in the United States Copyright Act (17 U.S.C.
xx.xx. 101, et seq.). To the extent that any such works, by operation of law,
cannot be "works made for hire," Consultant hereby assigns to the Company all
right, title and interest in and to such works and to any related copyrights.
"Company Inventions" means all ideas, processes, trademarks and service marks,
inventions, discoveries, and improvements to any of the foregoing, that
Consultant learned or learned of, conceived or conceives of, developed or
develops, or created or creates, alone or with others during Consultant's
employment with the Company or any predecessor, affiliate, or successor thereof
(whether or not conceived, developed, or created during regular working hours)
that directly or indirectly arise from or relate to (i) the business, products,
or services of the Company or any predecessor, affiliate, or successor thereof,
(ii) work performed for the Company by Consultant or any other employee, agent,
or contractor of the Company or any predecessor, affiliate, or successor
thereof, (iii) the use of the time of the Company or any predecessor, affiliate,
or successor thereof, or (iv) access to the Confidential Information of the
Company or any predecessor, affiliate, or successor thereof. Consultant will
promptly execute, acknowledge and deliver to the Company all additional
instruments or documents deemed at any time by the Company in its reasonable
discretion to be necessary to carry out the intentions of this Section 6(d).
(e) Acknowledgments. Consultant acknowledges and agrees that
(i) the Confidential Information of the Company and Company Inventions have
substantial value to the Company, (ii) the Confidential Information of the
Company and Company Inventions would be susceptible to immediate competitive
application by those outside of the Company, (iii) the Confidential Information
of GP has substantial value to GP, and (iv) the Confidential Information of GP
would be susceptible to immediate competitive application by those outside of
GP, and that, under these circumstances, the provisions of this Section 6 are
fair and reasonable.
(f) Survival. Consultant's obligations under this Section 5
will survive the termination of this Agreement and will thereafter be
enforceable.
(g) Remedies. Consultant acknowledges that, if Consultant
breaches any obligation under this Section 5, the Company and GP will suffer
immediate and irreparable harm and damage for which money alone cannot fully
compensate the Company and GP. Consultant therefore agrees that, upon such
breach or threatened breach of any obligation under this Section 5, the Company
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and GP will be entitled to a temporary restraining order, preliminary
injunction, permanent injunction or other injunctive relief, without posting any
bond or other security, compelling Consultant to comply with any or all such
provisions. In addition, if Consultant breaches any obligation under this
Section 5, the Company or GP may terminate this Agreement and the Term, and upon
such termination, the Company and GP will have no further obligation or
liability hereunder except that the Company will pay to Consultant the portion,
if any, of the Fees and any other amounts due and unpaid hereunder for the
period through the date of such termination. This Section 5 will not be
construed as an election of any remedy, or as a waiver of any right available to
the Company or GP under this Agreement or law, including the right to seek
damages from Consultant for a breach of any provision of this Agreement, nor
will this Section 5 be construed to limit the rights or remedies available under
applicable law for any violation of any provision of this Agreement.
(h) The Company. As used in this Section 5, the term "Company"
shall include the Company and any subsidiary or affiliate of the Company, and
the term "GP" shall include GP and any subsidiary or affiliate of GP.
Section 7. Death.
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If Consultant shall die during the Term, his services
hereunder shall terminate, and in such case:
(a) the Company will have no further obligation or liability
hereunder except that the Company shall pay to Consultant's spouse (or if he
leaves no spouse, to his estate or designated beneficiary), the Fees, and shall
maintain the benefits set forth in Section 3, for the benefit of Consultant's
spouse, each through the second anniversary of the Effective Date.
Section 8. Disability.
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If, as a result of Consultant's incapacity due to physical or mental
illness, Consultant shall not have performed the services hereunder for 90
consecutive days or for an aggregate of more than 180 days in any 12 month
period, and within 90 days after the Company has notified Consultant of such
non-performance, he shall not have resumed performance of the services hereunder
which shall continue for a minimum of eight consecutive weeks thereafter, the
Company may terminate Consultant's services hereunder. In the case of such
termination, the Company will have no further obligation or liability hereunder
except that the Company shall pay to Consultant the Fees, and shall maintain the
benefits set forth in Section 3(d) for the benefit of Consultant and his spouse,
each through the second anniversary of the Effective Date.
Section 9. Benefits Not Otherwise Entitled To.
Consultant acknowledges that the payment and benefits specified above
are in addition to and otherwise exceed any payment, benefit or other thing of
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value to which he might otherwise be entitled.
Section 10. General Releases.
(a) Consultant, in consideration of this Agreement, releases
and forever discharges the Company, GP, and their respective parents, affiliates
and subsidiaries, and each of their respective current, former, and future,
officers, directors, trustees, employees, agents, attorneys, successors, and
assigns (hereinafter collectively "Releasees"), from all actions, causes of
action, suits, debts, sums of money, covenants, agreements, promises, claims,
and demands whatsoever, whether known or unknown, in law or equity, whether
statutory or common law, whether federal, state, local, or otherwise
(collectively "Claims"), including, but not limited to, any claims relating to,
or arising out of any aspect of Consultant's employment with the Company, or the
termination of such employment, including, but not limited to:
(i) any and all claims of wrongful discharge, breach of the
contract or equitable estoppel;
(ii) any and all claims for wages or employee benefits, including,
but not limited to, any and all claims under the Employee Retirement
Income Security Act, the Fair Labor Standards Act, or any federal,
state or local labor or benefits law;
(iii) any and all claims of employment discrimination on any
basis, including, but not limited to, all claims under the following
statutes and the amendments thereto, Title VII of the Civil Rights Act
of 1964, the Age Discrimination in Employment Act of 1967 ("ADEA"), the
Civil Rights Act of 1866, 42 U.S.C. ss. 1981, the Civil Rights Act of
1991, the Americans with Disabilities Act of 1990, the Immigration
Reform and Control Act of 1986, the New York State Executive Law, the
New York City Human Rights Law, any and all claims under any other
federal, state, or local civil or human rights law; and
(iv) any and all claims for monetary recovery, including, but not
limited to, severance pay, back pay, front pay, liquidated,
compensatory and punitive damages, and attorneys' fees, disbursements
and costs;
which against the Releasees, Consultant or Consultant's heirs, executors or
administrators, ever had, now have, or hereinafter can, shall, or may have, for,
upon, or by reason of any matter, cause, or thing whatsoever from the beginning
of time to the Effective Date, other than Claims ("Unreleased Claims") relating
to the enforcement of the provisions of this Agreement or of Consultant's rights
to indemnification under the Company's certificate of incorporation and by-laws.
(b) The Company and GP, in consideration of this Agreement,
releases and forever discharges Consultant from all Claims, including, but not
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limited to, any claims relating to, or arising out of any aspect of Consultant's
employment with the Company, or the termination of such employment, which
against Consultant the Company or GP ever had, now has, or hereinafter can,
shall, or may have, for, upon, or by reason of any matter, cause, or thing
whatsoever from the beginning of time to the Effective Date, other than Claims
relating to the enforcement of the provisions of this Agreement.
Section 11. No Suits.
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Consultant represents and warrants that he has never commenced or filed
and covenants and agrees never to commence, file or in any way prosecute or
cause to be commenced or prosecuted against the Releasees or any of them, any
action, charge, complaint or other proceedings, whether administrative,
judicial, legislative or otherwise, including, but not limited to, any action or
proceeding for damages, attorney's fees, disbursements, costs or equitable
relief based upon or seeking relief on account of actions or failures to act by
the Releasees which may have occurred or failed to occur prior to the Effective
Date, other than in connection with Unreleased Claims. Consultant agrees that in
the event he files any charge, complaint or commences any litigation of any kind
that is covered by this Agreement, he shall pay all of the reasonable attorneys'
fees, expenses and costs incurred by Releasees in responding to such action,
including, but not limited to, any consequential damages that Releasees, or any
of them, may suffer or incur. Consultant further represents that he will not
aid, abet or assist in any manner whatsoever any other third party in filing,
pursuing or maintaining any lawsuit, complaint, or charge against any of the
Releasees, except if compelled to do so by valid legal process or if otherwise
required to do so by law. The provisions of this Paragraph 11 shall be
inapplicable in any matters regarding the ADEA, should Consultant allege in good
faith that the waiver herein of his right to file an ADEA claim was not knowing
and voluntary.
Section 12. Knowing and Voluntary Waiver.
(a) Consultant agrees that this Agreement constitutes a
knowing and voluntary waiver of all Claims, other than the Unreleased Claims,
Consultant may have against the Releasees, or any of them, including, but not
limited to, all rights or claims arising under the ADEA, including, but not
limited to, all claims of age discrimination in employment and all claims of
retaliation in violation of the ADEA.
(b) This Agreement shall not affect the rights and
responsibilities of the Equal Employment Opportunity Commission (the "EEOC") to
enforce the ADEA and other laws. Notwithstanding paragraph 11 above, this
Agreement shall not be used to justify interfering with Consultant's right to
file a charge with the EEOC or participate in an investigation or proceeding by
the EEOC. However, should any charge be filed with the EEOC, Consultant
expressly waives all rights or claims which arose prior to his execution of this
Agreement that he may have against the Releasees, or any of them, to receive any
benefit or remedial relief (including, but not limited to, reinstatement, back
pay, front pay, damages, and attorneys' fees) as a consequence of such EEOC
filing, and of any litigation concerning any facts alleged in any such charge.
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(c) The Company, GP, and Consultant agree that, for a period
of seven days following his execution of this Agreement ("Revocation Period"),
Consultant has the right to revoke this Agreement by delivering notice in
writing of such revocation to the Company and GP. If Consultant gives such
notice of revocation within the Revocation Period, this Agreement shall be null
and void. If no such notice of revocation is delivered by Consultant within the
Revocation Period, this Agreement will be deemed fully effective and enforceable
on the eighth day after its execution by Consultant ("Effective Date").
(d) The Company and GP hereby advise Consultant to consult
with his attorney prior to executing this Agreement. Consultant further
acknowledges that the Company and GP have given him a period of at least 21 days
in which to consider this Agreement before executing this Agreement.
(e) Consultant's acceptance of the payments and benefits
described above, at any time subsequent to seven days after his execution of
this Agreement, shall constitute an admission by Consultant that he did not
revoke this Agreement during the Revocation Period of seven days, and shall
further constitute an admission by Consultant that this Agreement has become
effective and enforceable.
(f) If Consultant executed this Agreement at any time prior to
the end of the 21 day period that the Company and GP gave him in which to
consider this Agreement, such early execution was a knowing and voluntary waiver
of Consultant's right to consider this Agreement for at least 21 days, and was
due to Consultant's belief that he had ample time in which to consider and
understand this Agreement, and in which to review this Agreement with his
attorney.
Section 13. Non-Admission of Wrongdoing.
This Agreement shall not in any way be construed as an admission by the
Company or GP of any liability, or of any unlawful, discriminatory, or otherwise
wrongful acts whatsoever against the Consultant or any other person.
Section 14. Acknowledgment of Full Payments.
Consultant agrees that the Company has paid to him all of the wages,
commissions, bonuses and accrued vacation pay through the date of his execution
of this Agreement and that neither the Company nor GP owes no other wages,
commissions, bonuses, vacation pay, employee benefits, severance payments or
other compensation or payments of any kind or nature, other than as provided in
this Agreement.
Section 15. Binding Agreement.
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Except as expressly permitted hereby, Consultant's rights and
obligations under this Agreement shall not be transferable by assignment or
otherwise, such rights shall not be subject to commutation, encumbrance, or the
claims of Consultant's creditors, and any attempt to do any of the foregoing
shall be void. The provisions of this Agreement shall be binding upon and inure
to the benefit of Consultant and his personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees, and
legatees, shall be binding upon and inure to the benefit of the Company and its
successors, and shall be binding upon and inure to the benefit of GP and its
successors. If Consultant should die while any amounts would still be payable to
him hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Consultant's devisee, legatee, or other designee or, if there be no such
designee, to Consultant's estate. Notwithstanding anything to the contrary
contained herein, GP shall have no responsibility for the obligations of the
Company hereunder.
Section 16. No Third Party Beneficiaries.
This Agreement does not create, and shall not be construed as creating,
any rights enforceable by any person not a party to this Agreement (except as
provided in Section 15).
Section 17. Modification.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements between
them concerning such subject matter, and may be modified only by a written
instrument duly executed by each party.
Section 18. Notices.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or by Federal Express, Express Mail, or similar overnight
delivery or courier service or delivered (in person or by telecopy, telex, or
similar telecommunications equipment) against receipt to the party to whom it is
to be given at the address of such party set forth in the preamble to this
Agreement (or to such other address as the party shall have furnished in writing
in accordance with the provisions of this Section 18). Notice to the estate of
Consultant shall be sufficient if addressed to Consultant as provided in this
Section 18. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which shall be deemed given at the time of receipt thereof.
Any notice given by other means permitted by this Section 18 shall be deemed
given at the time of receipt thereof.
Section 19. Waiver.
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Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
Section 20. Headings.
The headings in this Agreement are solely for the convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
Section 21. Counterparts; Governing Law.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws.
Section 22. Acknowledgment.
CONSULTANT EXPRESSLY ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT HE HAS
CAREFULLY READ THIS AGREEMENT; THAT HE FULLY UNDERSTANDS THE TERMS, CONDITIONS,
AND SIGNIFICANCE OF THIS AGREEMENT; THAT HE HAS HAD AMPLE TIME TO CONSIDER AND
NEGOTIATE THIS AGREEMENT; THAT THE COMPANY AND GP HAVE ADVISED HIM TO CONSULT
WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT HE HAS HAD A FULL OPPORTUNITY
TO AND HAS IN FACT REVIEWED THIS AGREEMENT WITH HIS ATTORNEY, AND THAT HE HAS
EXECUTED THIS AGREEMENT VOLUNTARILY, KNOWINGLY, AND WITH SUCH ADVICE OF COUNSEL
AS HE HAS DEEMED APPROPRIATE.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
NATIONAL PATENT DEVELOPMENT CORPORATION MXL INDUSTRIES, INC.
(As to Sections 3, 4 7 and 8 hereunder)
By: _______________________ By: ______________________
Name: Name:
Title Title
Xxxxx Xxxxx
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