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Exhibit 10.63
CONSULTING AGREEMENT
AGREEMENT made as of this 17th day of June, 1999, by and between HADCO
CORPORATION (the "Company") and XXXXXXX XXXXXXX ("Xxxxxxx").
WHEREAS, Xxxxxxx has retired from his position as a member of the Board
of Directors of the Company; and
WHEREAS, the Company is desirous of utilizing the services of Xxxxxxx as
a consultant to the Company.
NOW, THEREFORE, in consideration of the premises and other mutual
covenants contained herein, the receipt and legal sufficiency of which are
hereby acknowledged, Xxxxxxx and the Company agree as follows:
1. CONSULTING ARRANGEMENT. Effective July 1, 1999 through December
31, 2000, Xxxxxxx shall serve as a consultant to the Company.
2. COMPENSATION AS CONSULTANT. During the term of the consulting
arrangement, from July 1, 1999 through December 31, 2000, Xxxxxxx shall be paid
at the rate of $36,000 per annum, payable in equal monthly installments of
$3,000 on or about the 15th of each month beginning on or about July 15, 1999.
Xxxxxxx acknowledges that during the period of the consulting arrangement, he
shall be an independent contractor of the Company and not an employee and,
accordingly, Xxxxxxx shall be solely responsible for payment of all federal and
state withholding taxes, FICA and Medicare taxes, and all other applicable
employment related fees, taxes or charges. Xxxxxxx shall be entitled to and
shall receive no fringe benefits from the Company during the term of the
consulting arrangement, including without limitation, pension contributions,
401(k) contributions, health (medical, dental and vision) and disability
insurance, life insurance coverage, and the like.
3. DUTIES. Xxxxxxx shall perform such duties and responsibilities as
may be reasonably requested of him by the President of the Company. Both parties
anticipate that such duties may include marketing and public relation services
for the Company, both domestically and internationally.
4. CONFIDENTIALITY OF COMPANY INFORMATION. Xxxxxxx recognizes and
acknowledges that he has been and will be privy to confidential information
concerning the Company's business, including without limitation, financial data,
personnel data, computer programs, supplier lists, technology, processes,
methods, techniques, developments, inventions, improvements, apparatus,
products, policies, customer lists, research data, plans, know-how, and trade
secrets, as well as information relating to sales, costs, profits, organization,
customers, pricing and pricing methods and other general business operations,
which are valuable, special and unique assets of the Company,
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access to and knowledge of which have been essential to the performance of
Xxxxxxx'x duties at the Company (hereinafter collectively the "Confidential
Information"). Xxxxxxx agrees that he will not, during the term of his
consulting relationship or thereafter at any time, disclose any of this
Confidential Information to any person, firm, corporation, association or other
entity, excepting the authorized employees and agents of the Company, nor make
use of such Confidential Information either during the term of his consulting
relationship or at any time thereafter, for any purpose other than incident to
his duties with the Company. Without limiting the generality of the foregoing,
Xxxxxxx expressly agrees that such Confidential Information will not be used to
compete directly or indirectly with the Company.
Xxxxxxx agrees that all materials developed or existing at the
Company, all programs developed for customers or prospective customers, all
files, letters, memoranda, reports, records, data, specifications, customer
lists, proposals, contracts, computer programs or computer-generated data
(whether hard copy or machine-readable form) and other documentation are the
exclusive property of the Company. Xxxxxxx agrees, during the term of his
consulting relationship with the Company, to keep and use such materials only in
connection with the performance of his duties with the Company. Xxxxxxx agrees
to return all such materials and any copies thereof and all other tangible
property of the Company immediately upon termination of any specific consulting
project.
5. CONFIDENTIALITY OF CUSTOMER AND SUPPLIER INFORMATION. Xxxxxxx
recognizes and acknowledges that certain confidential data of the Company's
customers and suppliers may be made available to or utilized by him in the
course of his consulting relationship with the Company. Xxxxxxx further
acknowledges that the Company may, in certain cases, be subject to
non-disclosure or secrecy agreements with certain customers and suppliers.
Accordingly, Xxxxxxx expressly agrees and warrants that he will not, during the
term of or in the course of his consulting relationship or at any time
thereafter, disclose any such confidential data of any customer or supplier to
others, excepting the authorized employees and agents of the Company, nor make
use of such confidential data either during the term of his consulting
relationship or at any time thereafter, for any purpose other than incident to
his duties with the Company. Xxxxxxx further agrees to sign any and all
non-disclosure and confidentiality agreements reasonably required by the
Company's customers and suppliers and approved by the Company's senior
management.
Xxxxxxx agrees to return to the Company immediately upon the
termination of his consulting relationship any and all copies of all
confidential data with respect to the Company's customers or suppliers,
including without limitation, materials secured from the Company's customers or
suppliers, programs developed for customers or suppliers, all files, letters,
memoranda, reports, records, data, specifications, customer lists, proposals,
contracts, computer programs or computer-generated data (whether hard copy or
machine-readable form) and other documentation relating to the confidential
information, data or technology of the Company's customers or suppliers.
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6. NON-COMPETITION. During the term of this Agreement, Xxxxxxx agrees
that he will not, without the Company's prior express written consent, engage
in, have an interest in, be employed by, or be in any way, directly or
indirectly, connected with as an individual proprietor, partner, stockholder,
officer, employee, director, representative, agent, joint venturer, investor,
lender, or in any other employment, consulting or ownership capacity whatsoever
(other than as the holder of not more than one [1%] percent of the total
outstanding stock of a publicly-held company) any business that is substantially
similar to or competitive with that in which the Company is engaged. Without
limiting the generality of the foregoing, the Company agrees that Xxxxxxx may
serve on the board of the IPC, and that such service by itself will not violate
the non-competition provisions of this Agreement.
7. NON-SOLICITATION. During the term of this Agreement, Xxxxxxx
agrees that he will not, directly or indirectly, (a) employ, retain or engage
any person or entity who has worked for or with the Company as an employee or
consultant during the term of Xxxxxxx'x employment or during the term of
Xxxxxxx'x consulting arrangement; (b) recruit, solicit or induce, or attempt to
recruit, solicit or induce, any employee or consultant of the Company to
terminate his, her or its employment or consultant relationship with the
Company; (c) solicit, divert or take away, or attempt to solicit, divert or take
away, the business or patronage of any of the customers or accounts, or
prospective customers or accounts, of the Company which were contacted,
solicited or served during the term of his consulting arrangement with the
Company; or (d) induce or attempt to induce any customer, vendor or account of
the Company to reduce its business with, or to cease its business with, the
Company.
8. REMEDIES. Both parties agree that the restrictions contained in
Sections 4, 5, 6 and 7 are necessary for the protection of the business and
goodwill of the Company, and they are considered by Xxxxxxx to be reasonable for
such purposes. Xxxxxxx agrees that, in the event of a breach or threatened
breach by him of the provisions of Sections 4, 5, 6 or 7, the Company will
suffer irreparable harm which cannot be adequately compensated by a payment of
money damages. Accordingly, Xxxxxxx agrees that, in the event of such a breach
or threatened breach by him, the Company shall be entitled to injunctive relief,
both preliminarily and permanently, and to specific enforcement of the
provisions of Sections 4, 5, 6 and 7. Nothing contained in this section shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for such breach or threatened breach, including recovery of monetary
damages from Xxxxxxx or others.
Xxxxxxx agrees, in addition to and not in lieu of any other
remedies the Company may have, that in the event he violates any of the
provisions of Sections 4, 5, 6 and 7, he shall forfeit entitlement to any
consulting fee not already paid.
9. SEVERABILITY. If any restriction set forth in Sections 4, 5, 6 or
7 are found by any court of competent jurisdiction to be unenforceable because
it extends for too long a period of time or over too great a range of activities
or in too broad a geographic area, it
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shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable. If any
provision of this Agreement shall be held by a court of competent jurisdiction
to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal or invalid part, term
or provision shall be deemed not to be part of this Agreement, while the
remaining provisions shall continue in full force and effect.
10. PUBLICATION OF THIS AGREEMENT. Both parties agree that the terms
and contents of this Agreement, and the contents of negotiations and discussions
resulting in this Agreement shall be maintained in confidence by Xxxxxxx, the
Company, and their respective agents and representatives, and none of the above
shall be disclosed except (i) to the extent required by federal or state law,
(ii) as otherwise agreed to in writing by both parties, (iii) to enforce this
Agreement, or (iv) in a press release by the Company in a form deemed by the
Company in good faith to be appropriate and in any SEC filing by the Company
that is deemed appropriate by the Company, including without limitation in its
proxy statement, Form 8-K, Form 10-Q or Form 10-K, or any exhibits to any of the
foregoing.
Xxxxxxx agrees that he will speak positively about the Company and
its activities, and endorse and support the business and products of the Company
whenever the opportunity arises. Xxxxxxx further agrees that he will not in any
way verbally or in writing communicate statements or opinions which would be
derogatory to the reputation or the business and financial integrity of the
Company, or do any other act which might be detrimental to the Company.
11. ENTIRE AGREEMENT. This Agreement contains and constitutes the sole
and entire understanding and agreement between the parties with respect to
Xxxxxxx'x consulting arrangement, and supersedes and terminates all previous
oral or written negotiations and agreements (except that the covenants and
commitments of Xxxxxxx contained in the Agreement dated August 14, 1995 between
the parties shall survive). This Agreement may not be amended or modified or
waived, in whole or in part, except by a writing signed by both parties.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
and enforced in accordance with the substantive law of the Commonwealth of
Massachusetts, without giving effect to the choice of law provisions thereof.
13. MISCELLANEOUS. This Agreement may be executed in any number of
counterparts, and each executed counterpart shall have the same force and effect
as the original instrument, as if all parties to the counterparts have signed
the same instrument. This instrument shall not be construed for or against any
party because that party's legal representative drafted the Agreement, or any
portion of the Agreement. Section headings are for convenience only and should
not be considered in the interpretation of this Agreement. This Agreement shall
be binding upon, and inure to the benefit of and be
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enforceable by each of the parties hereto, their respective heirs, legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have set their hands this 17th day
of June, 1999.
Dated: June 17, 1999 /s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX
HADCO CORPORATION
Dated: June 17, 1999 By: /s/ Xxxxxx X. Xxxxx
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President and CEO
