Exhibit 99.02
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into as
of this 14th day of June, 2006, by and between DEL GLOBAL TECHNOLOGIES CORP., a
New York corporation ("Company"), and LUMINA GROUP LLC, a North Carolina limited
liability company ("Consultant").
BACKGROUND:
WHEREAS, Company desires to retain Consultant to provide certain
services to Company, and Consultant desires to provide such services to Company,
all subject to and in accordance with the terms and conditions contained herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premise, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. SERVICES. Subject to the terms and conditions set forth in this
Agreement, Company hereby retains Consultant to provide to Company the
consulting services more particularly described on Exhibit A attached hereto
(the "Services"), and Consultant agrees to render the Services to Company.
Consultant shall perform the Services upon the specific request of, and in
accordance with the directions of, Company in each instance. Consultant will
work on Company matters at least four (4) days per week. Consultant agrees to
assign Xxxxx X. Xxxxxx ("Xxxxxx") to this consulting engagement to provide the
Services.
2. OBLIGATIONS OF CONSULTANT. In its performance of the Services
hereunder, Consultant shall at all times comply with and abide by the terms and
conditions set forth in this Agreement and all applicable policies and
procedures of Company. Consultant shall further perform the Services in
accordance with all applicable laws, rules and regulations and by following and
applying the highest professional guidelines and standards.
3. COMPENSATION. Subject to the terms and conditions set forth in
this Agreement, and as full and complete compensation for the Services, Company
shall pay to Consultant, and Consultant shall accept, a fee of $20,000 per month
during the Term, payable bi-weekly.
4. EXPENSE REIMBURSEMENT. Company shall pay or reimburse
Consultant for all reasonable business expenses incurred or paid by Consultant
in the course of performing its duties hereunder, including but not limited to
reasonable travel expenses (including first class air travel) for Xxxxxx. As a
condition to such payment or reimbursement, however, Consultant shall maintain
and provide to Company reasonable documentation and receipts for such expenses.
5. INDEPENDENT CONSULTANT. Both Consultant and Company, in the
performance of this Agreement, will be acting in their own separate capacities
and not as agents, employees, partners, joint venturers or associates of one
another. It is expressly understood and agreed that Consultant is an independent
contractor of Company in all manners and respects and that consultant is not
authorized to bind Company to any liability or obligation or to represent that
he has any such authority. Consultant shall be solely responsible for all of its
withholding taxes, social security taxes, unemployment taxes, and workers'
compensation insurance premiums.
6. TERM AND TERMINATION.
(a) Unless sooner terminated pursuant to the terms hereof,
this Agreement shall commence as of the date hereof and continue for a period of
ninety (90) days (the "Term").
(b) Notwithstanding anything else contained herein to the
contrary, and in addition to any other rights and remedies available at law, in
equity or hereunder, either party hereto may cancel and terminate this Agreement
at any time upon fourteen (14) days' prior written notice.
7. NON-COMPETITION. Consultant agrees that during the Term and for
a period of eighteen (18) months from the date of the termination or expiration
of this Agreement, it and its officers, directors, members and affiliates will
not, directly or indirectly, compete with Company by providing to any company
that is in a "Competing Business" services substantially similar to the services
currently being provided by Consultant. Competing Business shall be defined as
any business that engages, in a material way, in the businesses currently being
conducted by Company.
8. NONSOLICITATION OF EMPLOYEES. For a period of two years after
the termination or expiration of this Agreement, Consultant and its officers,
directors, members and affiliates shall not, on its or their own behalf or on
behalf of any other person, partnership, association, corporation, or other
entity, solicit or in any manner attempt to influence or induce any employee of
Company or its subsidiaries or affiliates (known by Consultant to be such) to
leave the employment of Company or its subsidiaries or affiliates, nor shall it
or any of its officers, directors, members or affiliates use or disclose to any
person, partnership, association, corporation or other entity any information
obtained while a consultant to Company concerning the names and addresses of
Company's employees.
9. NONDISCLOSURE OF TRADE SECRETS. During the term of this
Agreement, Consultant will have access to and become familiar with various trade
secrets and proprietary and confidential information of Company, its
subsidiaries and affiliates, including, but not limited to, processes, computer
programs, compilations of information, records, sales procedures, customer
requirements, pricing techniques, customer lists, methods of doing business and
other confidential information (collectively, referred to as "Trade Secrets")
which are owned by Company, its subsidiaries and/or affiliates and regularly
used in the operation of its business, and as to which Company, its subsidiaries
and/or affiliates take precautions to prevent dissemination to persons other
than certain directors, officers and employees. Consultant acknowledges and
agrees that the Trade Secrets (1) are secret and not known in the industry; (2)
give Company or its subsidiaries or affiliates an advantage over competitors who
do not know or use the Trade Secrets; (3) are of such value and nature as to
make it reasonable and necessary to protect and preserve the confidentiality and
secrecy of the Trade Secrets; and (4) are valuable, special and unique assets of
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Company or its subsidiaries or affiliates, the disclosure of which could cause
substantial injury and loss of profits and goodwill to Company or its
subsidiaries or affiliates. Consultant may not use in any way or disclose any of
the Trade Secrets, directly or indirectly, either during the term of this
Agreement or at any time thereafter, except as required in the course of its
employment under this Agreement, if required in connection with a judicial or
administrative proceeding, or if the information becomes public knowledge other
than as a result of an unauthorized disclosure by the Consultant. All files,
records, documents, information, data and similar items relating to the business
of Company, whether prepared by Consultant or otherwise coming into its
possession, will remain the exclusive property of Company and may not be removed
from the premises of Company under any circumstances without the prior written
consent of the Board (except in the ordinary course of business during
Consultant's period of active employment under this Agreement), and in any event
must be promptly delivered to Company upon termination of Consultant's
employment with Company. Consultant agrees that upon its receipt of any
subpoena, process or other request to produce or divulge, directly or
indirectly, any Trade Secrets to any entity, agency, tribunal or person,
Consultant shall timely notify and promptly hand deliver a copy of the subpoena,
process or other request to the Board. For this purpose, Consultant irrevocably
nominates and appoints Company (including any attorney retained by Company), as
its true and lawful attorney-in-fact, to act in Consultant's name, place and
stead to perform any act that Consultant might perform to defend and protect
against any disclosure of any Trade Secrets.
10. SEVERABILITY. The parties hereto intend all provisions of
Sections 7, 8 and 9 hereof to be enforced to the fullest extent permitted by
law. Accordingly, should a court of competent jurisdiction determine that the
scope of any provision of Sections 7, 8 or 9 hereof is too broad to be enforced
as written, the parties intend that the court reform the provision to such
narrower scope as it determines to be reasonable and enforceable. In addition,
however, Consultant agrees that the nonsolicitation and nondisclosure agreements
set forth above each constitute separate agreements independently supported by
good and adequate consideration shall be severable from the other provisions of,
and shall survive, this Agreement. The existence of any claim or cause of action
of Consultant against Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by Company of the
covenants of Consultant contained in the nonsolicitation and nondisclosure
agreements. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable and this Agreement shall be construed
and enforced as if such illegal, invalid or unenforceable provision never
constituted a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid or unenforceable provision, there
shall be added as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or enforceable provision as may be possible and be legal,
valid and enforceable.
11. OWNERSHIP OF WORK PRODUCT. All work product, property, data,
documentation, information or materials conceived, discovered, developed or
created by Consultant pursuant to this Agreement (collectively, the "Work
Product") shall be owned exclusively by Company. To the greatest extent
possible, any Work Product shall be deemed to be a "work made for hire" (as
defined in the United States Copyright Act, 17 U.S.C.A. Section 101 et seq., as
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amended) and owned exclusively by Company. Consultant hereby unconditionally and
irrevocably transfers and assigns to Company all right, title and interest in or
to any Work Product.
12. NOTICES.
(a) All notices provided for or required by this Agreement
shall be in writing and shall be delivered personally to the other party, or
mailed by certified or registered mail (return receipt requested), or delivered
by a recognized overnight courier service, as follows:
If to Company: Del Global Technologies Corp.
00000 Xxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chairman of the Board
If to Consultant: Lumina Group LLC
0000 Xxxxxxxx Xxxx, Xxxxx 00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
(b) Notices delivered pursuant to Section 12(a) hereof
shall be deemed given: at the time delivered, if personally delivered, three (3)
business days after being deposited in the mail, if mailed; and one (1) business
day after timely delivery to the courier, if by overnight courier service.
(c) Either party hereto may change the address to which
notice is to be sent by written notice to the other party in accordance with the
provisions of this Section 12.
13. INDEMNIFICATION. Company shall indemnify, hold harmless and
defend Consultant, from and against any and all claims, liabilities, losses,
suits, actions, costs, expenses, damages and fees (including reasonable
attorneys' fees) of any kind or nature (collectively "Damages"), arising out of
or resulting in any way from the services provided by Consultant under this
Agreement, except for Damages caused by the negligence or willful misconduct of
Consultant.
14. MISCELLANEOUS.
(a) This Agreement, including all Exhibits hereto (which
are incorporated herein by this reference), contains the entire agreement and
understanding concerning the subject matter hereof between the parties hereto.
No waiver, termination or discharge of this Agreement, or any of the terms or
provisions hereof, shall be binding upon either party hereto unless confirmed in
writing. This Agreement may not be modified or amended, except by a writing
executed by both parties hereto. No waiver by either party hereto of any term or
provision of this Agreement or of any default hereunder shall affect such
party's rights thereafter to enforce such term or provision or to exercise any
right or remedy in the event of any other default, whether or not similar.
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(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any action is brought to
enforce or interpret this Agreement, venue for the action will lie in New York
City, New York.
(c) Consultant may not assign this Agreement, in whole or
in part, without the prior written consent of Company, and any attempted
assignment not in accordance herewith shall be null and void and of no force or
effect.
(d) This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
(e) The headings contained herein are for the convenience
of the parties only and shall not be interpreted to limit or affect in any way
the meaning of the language contained in this Agreement.
(f) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute the same Agreement. Any signature page of any such
counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this
Agreement, and any telecopy or other facsimile transmission of any signature
shall be deemed an original and shall bind such party.
(g) If any provision of this Agreement shall be held void,
voidable, invalid or inoperative, no other provision of this Agreement shall be
affected as a result thereof, and accordingly, the remaining provisions of this
Agreement shall remain in full force and effect as though such void, voidable,
invalid or inoperative provision had not been contained herein.
(h) This Agreement shall not be construed more strongly
against either party hereto regardless of which party is responsible for its
preparation.
(i) Upon the reasonable request of the other party, each
party hereto agrees to take any and all actions, including, without limitation,
the execution of certificates, documents or instruments, necessary or
appropriate to give effect to the terms and conditions set forth in this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the day and year
first above written.
"Company"
DEL GLOBAL TECHNOLOGIES CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chairman of the Board
LUMINA GROUP LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Partner
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EXHIBIT A
Consultant will perform such duties as are customarily associated with
the position of chief operating officer.
