CONSULTING AGREEMENT
CONSULTING AGREEMENT (this "Agreement") effective the 28th day
of October, 1996, between OPTEK TECHNOLOGY, INC., a Delaware
corporation (hereinafter called the "Company"), and XXXXX XXXX, an
individual residing in Dallas, Texas (hereinafter called
"Consultant");
W I T N E S S E T H:
WHEREAS the Company desires to retain Consultant as an
independent contractor to perform certain duties described herein;
NOW THEREFORE, in consideration of the mutual agreements
herein made, the Company and Consultant do hereby agree as follows:
1. Retainer as Consultant. The Company hereby designates
and appoints Consultant as an independent contractor to provide
services described herein for the Company, and Consultant hereby
accepts such appointment upon the terms and conditions hereinafter
set forth.
2. Status of Consultant as an Independent Contractor.
(a) In exercising the duties and obligations arising
under the terms of this Agreement, Consultant shall at all
times be and remain an independent contractor and nothing in
this Agreement will constitute Consultant a general partner or
joint venturer of the Company. Consultant shall have full
discretion and authority as to the manner in which Consultant
carries out his duties and obligations hereunder and the time
at which Consultant carries out his duties and obligations.
(b) The parties agree that by the execution of this
Agreement and the performance of his responsibilities as an
independent contractor hereunder, Consultant is not assuming
and shall not assume any of the Company's corporate
obligations.
(c) Consultant shall be solely responsible for paying
all taxes, including social security, which may be or become
due as a result of remuneration payable to him under this
Agreement.
3. Remuneration.
(a) For all services rendered by Consultant under the
terms of this Agreement, Consultant shall receive compensation
at the rate of $25,000 per fiscal quarter of the Company,
payable in cash within ten (10) days after the end of each
fiscal quarter of the Company during which Consultant shall
have provided services hereunder. In the event that
Consultant shall serve for a portion but not the entirety of
any fiscal quarter of the Company, the amount paid to
Consultant shall be adjusted proportionately.
(b) Consultant shall also be entitled to reimbursement
by the Company of all reasonable, ordinary and necessary
business expenses incurred by Consultant in carrying out the
duties of his appointment hereunder, provided that Consultant
accounts promptly for such expenses to the Company in the
manner prescribed from time to time by the Company's Board of
Directors.
4. Term of Appointment. The term of Consultant's appointment
(hereinafter referred to as the "term of appointment") shall
commence on the date hereof and terminate on May 30, 1998.
5. Termination by Company.
(a) If Consultant dies during the term of appointment,
Company shall pay to:
(i) the surviving spouse of Consultant in the event
of his death, for so long as she survives; or,
(ii) the estate of Consultant if Consultant's spouse
does not survive him, or dies before expiration of the
term of appointment,
all amounts payable to Consultant hereunder through the date
of death and the amounts which would otherwise be payable to
Consultant pursuant to Section 4 hereof during the ninety (90)
day period immediately following the date of death, less any
amounts payable to Consultant (or such spouse or estate)
pursuant to any insurance programs provided for Consultant's
benefit with premiums paid by Company. All other rights of
Consultant under this Agreement shall terminate concurrently
with his death.
(b) The Company may terminate the employment of
Consultant at any time upon written notice to Consultant if
Consultant has (i) breached an express term or provision of
this Agreement and has failed to remedy such breach within
thirty (30) days of receipt by Consultant of notice of such
breach or (ii) habitually neglected the duties that Consultant
is required to perform under the terms of this Agreement at
any time within ninety (90) days after having received a
written notice from the Company that Consultant has so
neglected such duties. In the event of termination of
Consultant's employment pursuant to this Section 5(b),
Consultant shall be entitled to receive all amounts payable to
Consultant through the date of termination and the amounts
which would otherwise be payable to Consultant pursuant to
Section 4 hereof during the ninety (90) day period immediately
following the date of termination.
(c) If Consultant commits any act of criminal
misconduct, whether or not related to Consultant's duties
hereunder, or any clearly dishonest, disloyal or criminal act
toward the Company or its Affiliates, the term of appointment
and Consultant's remuneration and other rights under this
Agreement or as an employee of the Company shall terminate
without severance pay or other obligation on the part of
Company upon written notice from the Company to Consultant,
but such termination shall not affect the liability of
Consultant by reason of his misconduct or dishonest, disloyal
or criminal conduct.
(d) Notwithstanding anything to the contrary contained
herein, the term of appointment and the Consultant's
remuneration and other rights under this Agreement or as an
employee of the Company shall not be deemed to have been
terminated pursuant to either Section 5(b) or (c) unless and
until there shall have been delivered to the Consultant a copy
of a resolution duly adopted by the affirmative vote of not
less than two-thirds of the Pre-change Directors of the Board
at a meeting of the Board called and held for the purpose
(after reasonable notice to the Consultant and an opportunity
for the Consultant, together with his counsel, to be heard
before the Board), finding that in the good faith opinion of
the Board the Consultant was guilty of conduct set forth above
in Section 5(b) or (c).
6. Termination by Consultant.
(a) The term of appointment may be terminated by
Consultant, if the Company fails to perform its duties
hereunder or fails to comply with any of the provisions
hereof, thirty (30) days after giving written notice to
Company stating the nature of such non-performance or non-
compliance, unless Company shall have remedied such non-
performance or non-compliance with such thirty (30) days
notice period.
(b) The Consultant shall be entitled to terminate the
term of appointment hereunder at any time that (A) a change in
control of the Company (as defined below) has occurred and (B)
there has occurred, without the express written consent of the
Consultant:
(i) a substantial alteration in the nature or
status of the title, position, duties or responsibilities
of Consultant from those in effect immediately prior to
the change in control of the Company;
(ii) a reduction by the Company in the Consultant's
remuneration as in effect on the date hereof or as the
same may be increased from time to time;
(iii) the failure by the Company to continue in
effect any compensation plan in which the Consultant was
participating immediately prior to the change in control,
or the failure by the Company to continue the
Consultant's participation therein; or
(iv) any purported termination of the Consultant's
term of appointment which is not effected in accordance
with the requirements of Section 5 and, for purposes of
this Agreement, no such purported termination shall be
effective.
(c) Upon termination of the term of appointment pursuant
to Section 6(a) or 6(b), the Company shall pay to Consultant
in one lump sum on the fifth (5th) day following such termina-
tion, cash in an amount equal to the lesser of (i) the total
compensation provided for under this Agreement for the balance
of the term of appointment and (ii) the amount that is one
dollar ($1.00) less than the amount which would be deemed a
"parachute payment" to Consultant under the Internal Revenue
Code of 1986, as amended, to be paid in consideration of
Consultant's election to release in full all rights under this
Agreement.
(d) For purposes of this Agreement, a "change in control
of the Company" shall mean a change in control of a nature
that would be required to be reported in response to Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), whether or not the Company is then subject to such
reporting requirement, or any other actual change in the
control of the Company (whether by merger, consolidation,
acquisition of assets or stock or otherwise); provided that,
without limitation, such a change in control shall be deemed
to have occurred if (i) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than a
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), of the Company's common stock as of the date of
this Agreement, becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than forty-five
percent (45%) of the combined voting power of the Company's
then outstanding securities entitled to vote in the election
of directors, (ii) a change occurs in ownership of more than
forty-five percent (45%) in book value of the Company's
assets, or (iii) during any period of two (2) consecutive
years, individuals who at the beginning of such two year
period constituted the Board of Directors of the Company,
including for this purpose any new director whose election or
nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the
directors then still in office who were directors at the
beginning of the period (collectively, "Pre-Change
Directors"), cease for any reason to constitute a majority of
the Company's Board of Directors.
7. Duties; Extent of Service. Consultant, as an independent
contractor, agrees to serve as Chairman of the Board of the Company
during his term of appointment and to perform the normal functions
and duties of that position as contemplated by the Company's
Certificate of Incorporation and Bylaws and applicable law.
Consultant may during the term of this Agreement be engaged in any
other business activity.
8. Confidential Information; Covenant Not to Disclose.
Consultant recognizes and acknowledges that he will have access to
certain Confidential Information of the Company, and that such
information constitutes valuable, special and unique property of
the Company. Consultant agrees that he will not during the term of
appointment or at any time thereafter use, disseminate or disclose
any such Confidential Information to any party not associated with
the Company for any reason or purpose whatsoever. Nothing herein
shall be construed as prohibiting the Company from pursuing any
other remedies available to the Company for such breach or
threatened breach. Upon termination of his appointment by the
Company, all documents, records, notebooks and similar repositories
of or containing confidential information, including copies
thereof, then in Consultant's possession, whether prepared by him
or other, will be left with the Company. As used herein,
"Confidential Information" means information disclosed to
Consultant or known by Consultant as a consequence of or through
his association with the Company, not generally known in the
industry in which the Company is or may become engaged, about the
Company's products, processes or services, including information
relating to research, development, inventions, manufacturing,
purchasing, accounting, engineering, marketing, merchandising and
selling.
9. Indemnification; Insurance. The Company agrees to
indemnify Consultant against any liability asserted against
Consultant by reason of the fact that he is or has been a Director,
officer or agent of the Company, or is or has served as a Director,
officer or agent of another corporation at the request of the
Company to the fullest extent permitted by Delaware law, and the
Company shall use its best efforts to obtain officers' and
Directors' liability insurance concerning the same.
10. Contents of Agreement, Parties in Interest, Assignment,
Etc. This Agreement sets forth the entire understanding of the
parties with respect to the matters contemplated hereby and any
previous agreements or understandings between the parties regarding
the subject matter hereof are merged into and superseded by this
Agreement. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and
assigns. Consultant may not assign, transfer, convey, mortgage,
hypothecate, pledge or otherwise encumber the remuneration or other
benefits payable to him or any right which he may have under the
provisions of this Agreement. This Agreement may and shall be
assigned or transferred to, and shall be binding upon and inure to
the benefit of, any successor of the Company and any successor
shall be deemed substituted for all purposes of the Company under
the terms of this Agreement.
11. Waiver. Any waiver by any party of any of the terms or
conditions of this Agreement in any instance shall not be deemed or
construed to be a waiver of such term or condition for the future,
or any subsequent breach thereof.
12. Amendment of Agreement. Notwithstanding anything to the
contrary in this Agreement, to the extent permitted by law, this
Agreement may be amended, supplemented or interpreted at any time
by written instrument duly executed by each of the parties hereto.
13. Receipt of Agreement. Each of the parties hereto
acknowledges that he has read this Agreement in its entirety and
does hereby acknowledge receipt of a fully executed copy thereof.
A fully executed copy shall be an original for all purposes and is
a duplicate original.
14. Captions and Section Headings. Captions and Section
headings used herein are for convenience only and are not a part of
this Agreement and shall not be used in construing it.
15. Invalid Provisions. Should any part of this Agreement
for any reason be declared invalid, the validity and binding effect
of any remaining portion shall not be affected, and the remaining
portion of this Agreement shall remain in force and effect as if
this Agreement had been executed with the invalid provision
eliminated.
16. Jurisdiction and Venue. Each of the parties hereto
hereby irrevocably submits to the jurisdiction and venue of the
state and federal courts sitting in the County of Dallas, State of
Texas, with respect to any legal proceedings arising out of this
Agreement.
17. Notices. Any notice required or permitted to be given
under the terms of this Agreement shall be in writing and shall be
deemed to have been delivered when sent postage prepaid by
registered or certified mail, return receipt requested, in the case
of Consultant, to his last place of residence as shown on the
records of the Company, or in the case of the Company, to its
principal office in the City of Carrollton, Texas.
18. Miscellaneous. This Agreement shall be subject to and
governed by the laws of the State of Texas.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first appearing above.
THE COMPANY:
OPTEK TECHNOLOGY, INC.
By:
Xxxxxx X. Xxxxxx
President
INDEPENDENT CONTRACTOR:
XXXXX XXXX
