Exhibit 10.3 to 8-K
BOUNDLESS CORPORATION
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
January 1, 2002
J. Xxxxxx Xxxxx
00 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ph: (000) 000-0000
Fax: (000) 000-0000
Re: CONSULTING AGREEMENT
Dear Xx. Xxxxx:
This letter agreement ("Agreement"), dated as of January 1, 2002, confirms
the agreement by and between Boundless Corporation, a Delaware corporation (the
"Company"), and you, pursuant to which you will act as a consultant on the terms
and conditions described below.
1. Separation Agreement. This Agreement is being entered into in
conjunction with that certain Separation Agreement and General Release, dated on
or about the date hereof, by and among you, the Company and the Company's
subsidiaries (the "Separation Agreement"). In the event you revoke the
Separation Agreement in accordance with the terms thereof, this Agreement shall
be void and of no force or effect and, in such case, you agree that you will
promptly return to the Company any payments you received under this Agreement.
2. Services. During the Term (as defined below), you will provide the
following services (the "Services") to the Company at its request: (a)
consultation in connection with equity and debt financing transactions, merger
and acquisition transactions and business development opportunities; (b) all
reasonable cooperation in the transfer of your duties as an officer of the
Company to those persons designated by the Company to assume your
responsibilities; and (c) testimony in any judicial or administrative
proceedings to which the Company is a party with respect to any matter involving
the affairs of the Company of which you have knowledge.
3. Term. The term of this Agreement shall run from January 1, 2002 through
and until 5:00 p.m. on March 31, 2003, unless sooner terminated in accordance
herewith (the "Term").
4. Conduct of Services. You shall perform your services under this
Agreement with a reasonable degree of care and quality in light of your former
position as the Company's chief executive and in a manner consistent with the
Company's policies and procedures.
5. Compensation. The Company shall pay to you compensation as provided
below:
(a) As compensation for the Services, the Company will pay you a monthly
fee (due by the tenth day following the end of the month for which the fee is
owed) as follows:
(i) for the three-month period beginning January 1, 2002 and ending
March 31, 2002, $21,600 per month;
(ii) for the three-month period beginning April 1, 2002 and ending
June 30, 2002, $17,280 per month; and
(iii) for the nine-month period beginning July 1, 2002 and ending
March 31, 2003, $13,824 per month.
(b) If after June 1, 2002 and on or prior to December 31, 2003, the Company
closes a financing transaction or merger or acquisition transaction with a third
party which has been or will be introduced by you to the Company, the Company
will pay you a commission, upon the closing of such transaction, equal to 4% of
the amount of the financing or the consideration received by the Company, as the
case may be, provided that if commissions, finders fees or similar fees are paid
to any other party with respect to such transaction, the 4% figure referred to
above will be reduced to 2%. The Company shall not have any obligation to you
for failing or refusing to approve or consummate any transaction with any
potential investor or merger or acquisition partner nor shall it have any
obligation for deciding not to consummate any financing or other transaction.
6. Benefits and Expenses.
(a) Throughout the Term, the Company will, at its expense, provide you with
health insurance coverage, which is the same as or substantially equivalent to
the coverage which the Company had been providing for you while you were an
employee of the Company.
(b) Until March 31, 2002, the Company will make available for your use and
occupancy, in connection with the services to be provided under this Agreement
or for other reasonable purposes, the offices of the Company located at your
address set forth above and will pay all rent and other normal operating costs
of such office until such date. After March 31, 2002, you will provide your
services from another location, the costs of which shall be borne by you and not
by the Company.
(c) The Company will reimburse you for your reasonable out-of-pocket
expenses which you incur in connection with providing services under this
Agreement provided that the Company's chief executive or another party
authorized by him or the Company approves such expenses in advance. With respect
to any testimony which you are requested to provide pursuant to Section 2 above,
the Company will pay your reasonable expenses relating thereto.
7. Termination. In the event you have breached any of the material terms or
conditions hereof, the Company may terminate this Agreement, upon fifteen (15)
days written notice to you unless you have cured to the Company's reasonable
satisfaction such breach within such 15-day period. Notwithstanding the
foregoing, the Company may terminate this Agreement
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after such 15-day period if your breach involves a violation of Section 12, 13,
14 or 15 of this Agreement. You may terminate this Agreement, upon fifteen (15)
days written notice to the Company, provided that such termination will not
serve to release you from any breach of this Agreement by you. Upon termination
of this Agreement pursuant to this Section 7, the Company's obligation to make
payments to you pursuant to Section 5 hereof, shall cease immediately.
8. Independent Contractor. You are and shall be an independent contractor
for all purposes. You are not an employee, agent, partner or representative of
the Company and you shall not in any way hold yourself out as such. You shall
have no power or authority to bind the Company or to act on its behalf. Nothing
herein shall be construed to create an employment relationship between the
Company and you. You shall not make or permit to be made any representation to
any potential investor (or any other person) to the contrary.
9. Taxes. You shall be responsible for, and shall pay, all federal, state
or local income taxes or other taxes payable as a result of the services
rendered or to be rendered by you hereunder and the compensation paid to you in
respect of such services.
10. Non-Exclusivity. Your engagement hereunder shall be non-exclusive.
Provided that you do not breach any of the covenants contained in Sections 12,
13, 14, 15 or 16 hereof, you shall be entitled to provide consulting or other
services to other parties without any obligation to provide notice to or obtain
the consent of the Company. The Company shall be entitled to engage other
consultants and to seek and consummate transactions with entities not introduced
by you.
11. Indemnification. You shall indemnify and hold harmless the Company, its
shareholders, directors, officers, employees and agents (and any heir, executor,
assignee, or other person or entity claiming by or through any of the
foregoing), from and against any loss, damage, cost and expense, including costs
and reasonable attorneys' fees, which may be suffered or incurred as a result of
claims, demands, actions, proceedings, costs or judgments against the Company
arising out of your performance of services hereunder or out of the breach of
any of the representations, warranties or covenants made by you in this
Agreement. The Company shall indemnify and hold you harmless (and any heir,
executor, assignee, or other person or entity claiming by or through you), from
and against any loss, damage, cost and expense, including costs and reasonable
attorneys' fees, which may be suffered or incurred as a result of claims,
demands, actions, proceedings, costs or judgments against you arising out of the
Company's breach of any of the representations, warranties or covenants made by
the Company in this Agreement.
12. Confidentiality. You agree to keep the terms of this Agreement
confidential and not to disclose the terms hereof to anyone except your spouse,
attorney or accountant and except as required by law. You acknowledge that in
the course of performing services hereunder (and prior to entering into this
Agreement) you may acquire (and already have acquired) or have access (or
already have had access) to information deemed by the Company to be proprietary
or confidential, including without limitation, investor lists, information
concerning investors, customer lists, registered user lists, employee and
consultant lists, trade secrets, data, software programs, intellectual property,
specifications, processes, methods, formulae, business and
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marketing plans and performance or financial information (collectively,
"Confidential Information"). You shall preserve as confidential all such
Confidential Information and will not divulge, distribute, publish or use for
your own benefit (or that of any third party) any such Confidential Information.
You acknowledge that the restrictions contained in this Section 12 are
reasonable and necessary to protect the Company's legitimate interests, do not
cause you undue hardship, and that any violations or threatened violations of
any provision of this Section 12 will result in immediate and irreparable injury
to the Company and that, therefore, the Company shall be entitled to temporary,
preliminary and permanent injunctive relief in any court of competent
jurisdiction, which rights shall be cumulative and in addition to any other
rights or remedies to which the Company may be entitled at law or in equity. As
used herein, the term "Confidential Information" shall not include information
which can be shown to have been, at the time of disclosure, in the public
domain; information which becomes part of the public domain through no fault of
yours; information which can be shown to have been in your possession prior to
receipt of such information from the Company or its representatives, free of any
obligation to keep it confidential; information which can be shown to have been
independently developed by the recipient party; and, information which can be
shown to have been acquired by you after disclosure from a third party who did
not require that such information be held in confidence, and who was under no
obligation to maintain such information in confidence.
13. Covenant Not to Compete. For so long as this Agreement remains in
effect, you will not, directly or indirectly, own or become employed by or
otherwise provide consulting services to, any business engaged or planning to
become engaged in the business of providing or marketing electronic
manufacturing services in the United States of America. You agree that the
limitations as to time, geographical area, and scope of activity contained in
this covenant do not impose a greater restraint than is necessary to protect the
goodwill and other business interests of the Company, and are therefore
reasonable. If any provision of this covenant is found to be invalid in part or
in whole, the Company may elect, but shall not be required, to have such
provision reformed, whether as to time, area covered, or otherwise, as and to
the extent required for its validity under applicable law and, as so reformed,
such provision shall be enforceable.
14. Corporate Opportunities. You acknowledge that during the term of this
Agreement you may be offered or become aware of business or investment
opportunities related to electronic manufacturing services or any other business
in which the Company is currently engaged and in which the Company may or might
have an interest (a "Corporate Opportunity") and you hereby agree that you will
advise the Company of any such Corporate Opportunities before acting upon them.
Accordingly, you agree that during the term of this Agreement (a) you will
disclose to Company's Board of Directors any Corporate Opportunity offered to
you or of which you become aware, and (b) you will not act upon any Corporate
Opportunity for your own benefit or for the benefit of any person or entity
other than Company without first offering the opportunity to the Company.
15. Other Covenants. For a period of 18 months from the date hereof, you
will not:
(i) request or seek to influence any person or entity to curtail or
cancel its business relationship with the Company; or
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(ii) induce or attempt to induce any employee or agent of, or
consultant to, the Company to terminate his or her employment or
consultancy with the Company.
16. Survival. The obligations of the parties contained in Sections 11, 12,
13, 14, 15 and 16 hereof shall survive any termination or expiration of this
Agreement.
17. Miscellaneous.
(a) The invalidity of any portion of this Agreement shall not affect the
validity, force or effect of the remaining portions hereof. If it is ever held
that any restriction in this Agreement is too broad to permit enforcement of
that restriction to its fullest extent, that restriction shall be enforced to
the maximum extent permitted by applicable law. Each of the parties acknowledges
that this Agreement (including the Exhibits) has been prepared jointly by the
parties, and must not be strictly construed against either party.
(b) You shall not assign this Agreement or any of your rights or
obligations under this Agreement. Any assignment made in violation of this
Agreement shall be null and void.
(c) Any notice or consent required or permitted to be sent will be in
writing and will be sent in a manner requiring a signed receipt such as
authenticated Internet transmission, authenticated facsimile transmission, FedEx
or other nationally recognized overnight courier delivery (sent for delivery on
the next business day), or if mailed, then mailed by registered or certified
mail, return receipt requested. Notice made by electronic transmission is
effective upon receipt, notice by other means is deemed effective the day after
it has been sent; provided that all notices to the Company shall not be deemed
properly given under this Section unless a copy is also sent to: Fischbeino
Badilloo Wagnero Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxx X. Xxxxxxxx, Esq., Phone (000) 000-0000, Fax (000) 000-0000. Notices will
be sent to the addresses first set forth above to the attention of the
signatories of this Agreement.
(d) This Agreement and the Separation Agreement and General Release
attached hereto as Exhibit A, set forth the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between the parties concerning that subject
matter. No amendment or modification of this Agreement (or any Exhibit) will be
valid except by a writing signed by both parties. The failure of either party to
partially or fully exercise any right or the waiver by either party of any
breach will not prevent a subsequent exercise of that right or be deemed a
waiver of any subsequent breach of the same or any other term of this Agreement.
(e) This Agreement will be governed and interpreted in accordance with the
laws of the State of New York, without regard to the conflict or choice of law
principles thereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
/s/ J. Xxxxxx Xxxxx
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J. XXXXXX XXXXX
BOUNDLESS CORPORATION
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Chief Executive Officer & President
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