EXHIBIT 10.46
MRS TECHNOLOGY, INC.
CONSULTING AGREEMENT
AGREEMENT, dated February 13, 1998, between MRS Technology, Inc., a
Massachusetts corporation with its principal place of business at 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, XX 00000-0000 (the "Company"), and Xxxxxxxx X. Xxxxx III,
an individual residing at 0 Xxxxxxx Xxxxxx, Xxxxx, XX 00000 (the
"Consultant").
1. FREEDOM TO CONTRACT; INDEPENDENT CONTRACTOR. The Consultant represents
that he is free to enter into this Agreement, that he has not made and will
not make any agreements in conflict with this Agreement, and will not disclose
to the Company, or use for the Company's benefit, any trade secrets or
confidential information now or hereafter in the Consultant's possession which
is the property of any other party.
This Agreement shall be construed as an independent contractor's agreement for
all purposes, and Consultant shall be independent and not an employee of the
Company or any affiliate of the Company. Consultant and the Company are not
partners or joint venturers with each other with respect to the matters
subject to this Agreement and nothing herein shall be construed so as to make
them such partners or joint venturers or to impose any liability as such on
them.
2. CONSULTING SERVICES. Subject to the general direction of the Board of
Directors of the Company, the Consultant shall act as an advisor and
consultant to the Company and Consultant hereby accepts such engagement upon
the terms and conditions set forth herein. The Consultant shall report to the
Chief Executive Officer of the Company.
3. TERM
3.1. General. This Agreement shall take effect as of the date hereof and
shall remain in effect through the 14th day of August, 1998, or until earlier
terminated under the provisions of this Section 3. This Agreement may be
renewed by mutual written agreement of the parties.
3.2. Survival of Certain Provisions. The provisions of Sections 3.3, 4, 5,
6, 7, and 8 shall survive the termination of this Agreement.
3.3. Termination. The Company shall have the right upon thirty (30) days
notice to terminate this Agreement without cause, and immediately upon notice
to terminate this Agreement with cause (as defined below), with no
compensation to accrue or to be owing in respect of any period after the
effective date of such termination and no liability of any kind to accrue on
account of such termination. The term "cause" shall mean termination due to
breach of this Agreement or to an act or acts by the Consultant in willful
contravention of the directions of the Chief Executive Officer or Board of
Directors of the Company.
4. COMPENSATION, EXPENSES AND TAXES.
4.1. Compensation and Expenses. For the term of this Agreement, the
Consultant shall be paid at a rate of One Hundred Sixty Eight Thousand Dollars
($168,000) per year, in consideration for the Consultant's availability for
consulting services to the Company. The Consultant's compensation shall be
payable on a bi-weekly basis in accordance with the Company's customary
payroll practices.
Consultant is entitled to continuation of health insurance coverage under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
If the Consultant elects continuation coverage under COBRA, the Company will
pay any required premium contributions on behalf of the Consultant until the
earlier to occur of: (i) the termination of this Agreement, or (ii) the
Consultant's eligibility for coverage under a health insurance plan maintained
by a subsequent employer of the Consultant.
The Consultant currently has vested but unexercised options to purchase
seventy seven thousand seven hundred forty eight (77,748) shares of the
Company's Common Stock. In accordance with the terms of the MRS Technology,
Inc. 1993 Stock Option Plan, Consultant may exercise such options, in whole or
in part, at any time within three (3) months after termination of this
Agreement unless such options are earlier terminated by their terms.
In addition, the Consultant is hereby granted an option (the "Option") to
purchase sixty seven thousand five hundred (67,500) shares of the Company's
Common Stock.
4.2. Terms of the Option. The Option shall (i) be a nonstatutory option,
(ii) granted as of the date hereof, (iii) have an exercise price equal to the
average of the bid and asked price of the Company's Common Stock on the
business day first preceding the date hereof, (iv) vest in all events on the
termination of this agreement, (v) to the extent vested, be exercisable for a
period of three (3) months following termination of this Agreement, and (vi)
be subject to the terms and conditions of the Company's Stock Option Plan and
the Option Agreement representing the Option.
4.3 Responsibility for Taxes. All compensation to be paid to Consultant
hereunder shall be paid without deduction or withholding of any federal,
state, local or foreign taxes, and Consultant shall be solely responsible for
and pay all federal, state, local and foreign taxes due with respect thereto.
Consultant agrees to indemnify the Company and hold it harmless from and
against any liability, cost or expense (including, without limitation, court
costs and attorney's fees) resulting from Consultant's breach of his
obligations under this paragraph. The Company shall have the right to set off
against any payments owing to Consultant any amounts owed to the Company by
the Consultant as a result of any breach of the Consultant's obligations under
this paragraph.
5. AGREEMENT NOT TO COMPETE. This Section 5 is effective during the term of
this Agreement and shall continue in effect for the period beginning on the
date of termination of this Agreement and continuing for: (i) one (1) year;
or (ii) in the event of termination of this Agreement prior to the 14th day of
August, 1998, six (6) months. During such time, the Consultant shall not
directly or indirectly, engage in, or enter into or participate in, at any
place within the rest of the United States any Competitive Business (as
defined below), either as an individual for his own account, or as a partner
or a joint venture, or as an officer, independent contractor or holder of more
than a five percent (5%) equity interest in any other person, firm,
partnership or corporation, or as an employee, agent or salesperson for any
person.
For purposes of this Section 5, the term "Competitive Business" shall mean
stitching step and repeat lithography tools for FPD (flat panel display) R&D
and/or production, or for HDI (High Density Interconnect) R&D and/or
production. In the event that the Company no longer has an interest one of
the industries described in the foregoing sentence, such industry shall no
longer be considered a Competitive Business and the terms of this Section 5
shall no longer apply solely with respect to that industry.
6. CONFIDENTIAL INFORMATION.
(a) The Consultant recognizes and acknowledges that he may have exposure to
and develop special knowledge and skills concerning certain of the Company's
Confidential Information (as defined below) vital to the Company's ability to
compete successfully in its business. The Consultant further acknowledges
that it is vital to the Company's legitimate business interests that the
confidentiality of such Confidential Information be preserved, and that use or
reliance on such Confidential Information by or on behalf of any other
business or commercial activity in competition with the Company could result
in irreparable harm to the Company. The Consultant further acknowledges that
the Confidential Information is a valuable, special and unique asset of the
Company's business, and that the Confidential Information is and shall remain
the exclusive property of the Company and nothing in this Agreement shall be
construed as a grant to the Consultant of any rights, title or interest in the
Confidential Information.
(b) The Company and the Consultant understand that, prior to the effective
date of this Agreement, the Consultant received and generated Confidential
Information which may or may not have been documented as such. After the
effective date of this Agreement, all "new" Confidential Information, e.g.
Confidential Information disclosed after such effective date, will be
identified: (i) in writing on such documents or, (ii) if disclosed orally, by
an oral caution that the Consultant is being given Confidential Information,
with written confirmation of the oral notice within two (2) weeks of such
disclosure.
(c) Without the prior written consent of the Company, the Consultant shall
not, at any time either during or subsequent to his consulting relationship
with the Company, use any Confidential Information (as defined below) for the
benefit of anyone other than the Company, or disclose any Confidential
Information to any person or party; the Consultant may, however, use or
disclose Confidential Information as required by his obligations to the
Company or as necessary or desirable (and for the benefit of the Company) in
connection with the Company's business (but all such permitted uses and
disclosures shall be made under circumstances and conditions reasonably
appropriate to preserve the Confidential Information as the Company's
confidential property). The Company will give due consideration to any
request by the Consultant to use or disclose such Confidential Information.
(d) After the term of the Consultant's consulting relationship with the
Company, the foregoing restrictions shall not apply to Confidential
Information which the Consultant can establish by competent written proof:
(i) was known, other than under binder of secrecy, to the Consultant prior to
his employment by the Company; or (ii) was subsequently obtained by the
Consultant, other than under binder of secrecy, from a third party not
acquiring the information under an obligation of confidentiality from the
disclosing party.
(e) The term "Confidential Information" includes all information acquired by
the Consultant from the Company, its other employees, its suppliers or
customers, its agents or consultants, or other, during his relationship with
the Company, and which relates to the present or potential businesses and
products of the Company, as well as any other information designated by the
Company as confidential. The term Confidential Information may relate, for
example, to inventions, trade secrets, computer software, research,
development, design, engineering, manufacturing, purchasing, supplier lists,
customer lists, price lists, accounting, profit margins, marketing or sales
volume information or strategic plans; may include information contained, for
example, in drawings, models, data, specifications, reports, compilations or
computer programs; and may be in the nature of unwritten knowledge or
technical or manufacturing know-how; but shall not in any event include any
information which becomes generally known or available to persons in the
business or industry of the Company other than as a result of acts or
omissions attributable to the Consultant.
7. STANDARD OF CONDUCT. The Consultant shall act at all times in the best
interest of the Company as determined from time to time by the Company in its
sole discretion, acting through its Board of Directors and/or its Chief
Executive Officer. The Consultant shall promote the policies and practices of
the Company, as adopted and interpreted form time to time by the Company in
its sole discretion, acting through its Board of Directors and/or its Chief
Executive Officer.
8. ARBITRATION. In the event that any party hereto has any claim under this
Agreement or other issues relating to the Consultant's consulting relationship
with the Company, the party shall promptly notify each other party of such
claim. If within 30 days of the receipt of such notice of claim, the parties
cannot agree on a resolution of such claim, the parties agree to submit such
dispute to binding arbitration to be held in Boston, Massachusetts under the
rules of the American Arbitration Association. Any such arbitration shall be
conducted by three arbitrators, one of whom shall be selected by the
Consultant, one of whom shall be selected by the Company and one of whom shall
be selected by the arbitrators so selected. The expenses of any such
arbitration shall be paid by the non-prevailing party, as determined by the
final order of the arbitrators.
9. SPECIFIC ENFORCEMENT. Notwithstanding the provisions of Section 8, the
parties acknowledge that the Consultant's breach of Sections 5, 6 and 7 of
this Agreement will cause irreparable harm to the Company; it is agreed and
acknowledged that the remedy of damages will not be adequate for the
enforcement of such provisions and that such provisions may be enforced by
equitable relief, including injunctive relief or specific performance, which
relief shall be cumulative and in addition to any other relief to which the
Company may be entitled.
10. GOVERNING LAW. This Agreement shall be deemed a contract made and
performed in the Commonwealth of Massachusetts and shall be governed by the
laws of the Commonwealth of Massachusetts.
11. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the entire
agreement of the parties and may be altered or amended or any provision hereof
waived only by an agreement in writing signed by the party against whom
enforcement of any alteration, amendment, or waiver is sought. No waiver by
any party of any breach of this Agreement shall be considered as a waiver of
any subsequent breach.
12. BINDING OBLIGATIONS. This Agreement shall be binding upon and inure to
the benefit of the Company and its successors and assigns and the Consultant
and his personal representatives.
13. ASSIGNABILITY. Neither this Agreement nor any benefits payable to the
Consultant hereunder shall be assigned, pledged, anticipated, or otherwise
alienated by the Consultant, or subject to attachment or other legal process
by any creditor of the Consultant, and notwithstanding any attempted
assignment, pledge, anticipation, alienation, attachment, or other legal
process, any benefit payable to the Consultant hereunder shall be paid only to
the Consultant or his estate.
IN WITNESS WHEREOF, the Company, by its officer hereunto duly authorized, and
the Consultant have signed and sealed this Agreement as of the date first
written above.
MRS TECHNOLOGY, INC.
By:Xxxx X. Xxxxxxxx
Chief Executive Officer
Xxxxxxxx X. Xxxxx III
