CONSULTING AGREEMENT
This is a Consulting Agreement (the "Agreement") made this 1st
day of March, 1997 by and between Anaren Microwave, Inc. ("Anaren"or "Company"),
a New York Corporation, with its principal place of business at 0000 Xxxxxxxxx
Xxxx, X. Xxxxxxxx, Xxx Xxxx 00000, and Xxxx X. Xxx ("Xxx"), an independent
financial consultant, with a place of business at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000.
RECITALS
1. Xxx is a current outside Director on Anaren's Board of
Directors.
2. Xxx possess substantial knowledge and experience dealing
with a wide spectrum of financial issues, including, financing, investing,
mergers, acquisitions and divestitures. Xxx has been employed as Vice President
of Finance, Treasurer, for the Xxxxxxxxx Company since 1978, and has developed
considerable experience dealing with government contracts. In his capacity at
Xxxxxxxxx, Xxx has additionally served as chief financial officer of various
companies owned and/or managed by Xxxxxxxxx.
3. During the past five year period, Xxx has provided Anaren's
management various degrees of financial related advice. Xxx has been
particularly helpful in assisting Anaren's management restructure Anaren's core
businesses.
4. Anaren desires to retain Xxx as a financial consultant to
more fully benefit from Xxx'x knowledge, skills, and abilities beyond what would
reasonably be provided by Xxx as a member of Anaren's Board of Directors.
5. Xxx has expressed a willingness to provide consulting
services to Anaren on a limited basis.
TERMS
NOW THEREFORE, in consideration of the mutual covenants and
representations contained in this Agreement, the parties agree as follows:
1. SERVICES. Xxx will use his best efforts to provide sound
financial advice to Anaren's management, as requested, in implementing strategic
financial controls to enhance the operational effectiveness and overall
profitability of the Company. Xxx will also consult with management, if
requested, on issues involving reorganizations, potential mergers and
acquisitions, divestitures, stock buy back programs, and secondary financing
issues.
2. EFFECTIVE DATE; TERM. Xxx shall provide the Services
outlined above for a period of five (5) years commencing on the date stated
above, and ending on February 28, 2002, unless this Agreement is sooner
terminated as provided below. During the term of this Agreement, Xxx shall be
available to provide services to Anaren up to two (2) days per month.
3. COMPENSATION. Xxx will charge, and Anaren will pay Xxx a
monthly fee of ONE THOUSAND SIX HUNDRED SIXTY-SIX AND 66/100 DOLLARS ($1,666.66)
for services rendered, plus reasonable and customary business expenses,
including meals, transportation and lodging incurred by Xxx directly related to
activities on behalf of Anaren. The monthly fee shall be payable regardless of
the number of days of service provided by Xxx.
x. Xxx shall submit monthly
invoices to Anaren which shall include
itemized reimbursable business expenses
incurred by Xxx during the applicable
invoice period.
4. NON-EXCLUSIVE AGREEMENT. It is understood that Services
provided by Xxx will be provided on a non-exclusive basis. It is additionally
understood that during the term of this Agreement, Xxx will be employed by the
Xxxxxxxxx Company
and will consult with companies other than Anaren, but Xxx has not and will not
accept or make other agreements that present a conflict of interest with Anaren.
5. TERMINATION AND COMPENSATION. Either party may cancel this
Agreement prior to the "termination date" by providing the other with twelve
(12) months advance written notice.
a. Termination Date. The
term "termination date" shall mean the
earlier of (i) the expiration date; or (ii)
if Xxx'x employment is terminated by his
death, the date of his death, or (iii) for
any other reason, the date on which such
termination is to be effective pursuant to
the notice of termination given by the party
terminating the relationship.
b. Incapacity. If in the
reasonable judgment of the Board of
Directors of the Company, as a result of
Xxx'x incapacity due to physical or mental
illness or otherwise, Xxx should become
unable to perform his duties under this
Agreement, Anaren may terminate this
Agreement by written notice to Xxx.
c. In the event of
termination, for any reason, Xxx or his
estate, shall be entitled to receive
compensation on a pro rata basis for
Services performed up through the effective
date of the termination date.
6. RELATIONSHIP OF THE PARTIES. The parties to this Agreement
are independent contractors and not employees of each other. Except as otherwise
provided in this Agreement, neither party shall hold itself out as having the
power or authority to bind or create liability for the other by its acts or
omissions.
x. Xxx, in his sole
discretion, shall determine the method and
manner with which he will satisfy his
obligations under this Agreement. Anaren
shall neither have the right, nor exercise
any control of, or direction over, the
particular method or manner by which Xxx
shall perform the services required under
this Agreement.
b. Anaren will not withhold
on behalf of Xxx any sums for income tax,
unemployment insurance, social security, or
any other amount required to be withheld
pursuant to any legal requirement of any
governmental body. Anaren will issue Xxx an
IRS form 1099 to record payments made to Xxx
pursuant to this Agreement.
7. TAXES AND INSURANCE. Xxx shall be solely responsible to pay
all applicable taxes and insurance, and workers' compensation, if required by
law.
8. NO CLAIM FOR BENEFITS. Xxx acknowledges that he is not
entitled to, and waives any right to participate in, join, or benefit from any
Anaren welfare, benefit or pension plan that is otherwise provided to Anaren
employees. Xxx shall therefore have no claim under this Agreement or otherwise
against Anaren for vacation pay, paid sick leave, Federal Insurance
Contributions Act ("FICA") contributions, workers' compensation benefits, or
health, disability, or unemployment insurance benefits, or any other Anaren
provided benefit of any kind.
9. ANAREN DIRECTOR. Nothing in this Agreement is intended to
change or otherwise modify Xxx'x responsibilities and obligations to Anaren as a
member of Anaren's Board of Directors. Similarly, this Agreement is intended not
to alter or otherwise modify any benefit Xxx is entitled to as a member of
Anaren's Board of Directors.
10. CONFIDENTIAL INFORMATION. Xxx warrants and represents that
during the term of this Agreement, and in perpetuity thereafter, he shall
safeguard and shall not disclose to any third person or use for his own benefit
or the benefit of others, Confidential Information of Anaren however acquired
during or prior to the term of this Agreement.
a. "Confidential
information" shall mean any information
owned by Anaren, or acquired in connection
with this Agreement by Anaren, or entrusted
to Anaren, that provides economic value,
actual or potential, to Anaren by reason of
it not being generally known to other
persons who can obtain economic value from
its disclosure or use. Such information may
include, by way of example, but is not
limited to pricing data, cost data, other
financial data, technical design,
manufacturing and application information,
customer information, personnel information,
and new product developments and business
plans.
b. The parties expressly
agree that in order to protect its
confidential information, Anaren shall have
the right to bring an action to enjoin the
disclosure by Xxx of confidential
information; it being acknowledged that a
suit for monetary damages alone would be an
inadequate remedy.
11. NOTICES. All notices and other communications provided for
in this Agreement shall be in writing and shall be deemed given when received by
the other party. Notices to Anaren shall be sent to the attention of Xxxxx X.
Xxxx at Anaren,
0000 Xxxxxxxxx Xxxx, X. Xxxxxxxx, Xxx Xxxx 00000, and Xxx at 00 Xxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000.
12. GOVERNING LAW. This Agreement is to be governed,
construed, and enforced in accordance with the laws (other than the conflict of
law rules) of the State of New York. Any action or proceeding arising out of or
related to this Agreement shall be brought in Supreme Court, Onondaga County,
New York, and the parties hereby consent to the jurisdiction of this court.
13. ENTIRE AGREEMENT.This Agreement constitutes the entire
understanding between the parties and supersedes all prior and contemporaneous
agreements, understandings, and negotiations and discussions, whether oral or
written, and shall not be modified, except by written agreement, signed by the
parties.
14. MISCELLANEOUS. Any term or provision of this Agreement is
deemed invalid or unenforceable by a court of competent jurisdiction, it shall
not affect the validity or enforceability of any other term or provision. The
headings in this Agreement are for convenience of reference only and shall not
alter or otherwise affect the meaning of this Agreement. This Agreement may be
executed in any number of counter-parts which together shall constitute one
instrument and shall bind and inure to the benefit of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties execute this Agreement as of
the date first written above.
ANAREN MICROWAVE, INC.
By: /s/ Xxxxx X. Xxxx /s/ Xxxx X. Xxx
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President
