Exhibit 10.2.2
CONSULTING AGREEMENT
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THIS AGREEMENT is made and entered into this date, February 28, 2005, between
Xxxxxx X. Xxxxxx (hereinafter referred to as the Consultant), and HI-SHEAR
TECHNOLOGY CORPORATION (hereinafter referred to as the "Company").
WHEREAS, the Consultant has offered his services to the Company as an
independent contractor, the Consultant reserving the right to sell its services
to others when not performing services for the Company, except for PRODUCTS
COMPETITIVE WITH THE PRODUCTS OF THE COMPANY.
WHEREAS, the Company is willing to retain the Consultant to work on and consult
in connection with projects as assigned by the Company, either orally or in
writing.
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein
contained, and for the faithful performance thereof, said parties have agreed
and do hereby agree to the terms and conditions and statement of work as more
fully set forth in Exhibit "A" (incorporated herein by reference) to this
Agreement.
1) PROPRIETARY DATA. Consultant agrees to keep secret and not to disclose to
others, unless specifically authorized in writing to do so by the Company, all
trade secrets, know-how, proprietary rights, formulas, technical data, and other
confidential matters disclosed to the Consultant by the Company, or which are
created in the course of the Consultant's services to the Company.
2) SECURITY CLEARANCE. The Company shall attempt to obtain and keep current any
level of security clearance required for the performance of consulting efforts
by the Consultant on the Company programs.
3) TECHNICAL DATA. Consultant further agrees that any inventions, developments,
improvements, trade secrets, know-how formulas, or processes, whether patentable
or not, conceived, devised, or invented by the Consultant, alone or jointly with
others, during or as a result of the Consultant's services to the Company, shall
be the sole and exclusive property of the Company. Consultant further agrees to
execute at the direction and expense of the Company any and all papers necessary
to filing or prosecution of any United States or foreign patent applications on
any such invention conceived, devised or invented by the Consultant, alone or
jointly with others, as referred to above, and any and all papers to formally
convey to the Company the title thereto.
Consultant further agrees that any and all ideas, concepts, information and data
disclosed to the Company by the Consultant during the course of this Agreement
may be used without additional consideration by the Company and by persons or
entities using it with consent of the Company (which it may freely give),
without restriction, unless otherwise mutually agreed upon in writing.
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4) FREE AGENT. The Company agrees that the Consultant, as an independent
contractor, will be free, except for the exclusions of Paragraph (5), when not
performing services for the Company, to sell his services to others, and the
Company agrees that it shall have no rights to anything created by the
Consultant, except those set forth in Paragraphs (3) above, and except for those
ideas and inventions directly relating to the Company's present products and
fields of interest.
5) EXCLUSIVITY. Consultant agrees that during the life of this Agreement, he
will not sell his services as a Consultant or otherwise to any competitors of
the Company, and will not consult with any other person, firm, or corporation on
any subject matter which is the same or directly related to the subject matter
worked on by said Consultant or to which he is given access by the Company
without prior written consent of the Company. Consultant further agrees to work
with the Company clients through the Company exclusively for the term covered by
this Agreement.
6) RESTRICTIVE COVENANTS.
6.1 Consultant acknowledges that (i) the Company's business is or may
become national or international in scope, (ii) his work for the Company
has brought him and will continue to bring him into close contact with
confidential information of the Company and its customers, and (iii) the
agreements and covenants contained in this Section 6.1 are essential to
protect the business interest of the Company and that the Company will not
enter into this Agreement but for such agreements and covenants.
Accordingly, the Consultant covenants and agrees as follows:
6.l(a) Except as otherwise provided for in this Agreement, during the
Term of this Agreement and, if this Agreement is terminated for any
reason during the Term, for two (2) years following such date of
termination (the "Termination Period"), the Consultant shall not,
directly or indirectly, compete with respect to any services or
products of the Company which are either offered or are being developed
by the Company as of the date of termination; or, without limiting the
generality of the foregoing, be or become, or agree to be or become,
interested in or associated with, in any capacity (whether as a
partner, shareholder, owner, officer, director, Consultant, principal,
agent, creditor, trustee, consultant, co-venturer or otherwise) any
individual, corporation, firm, association, partnership, joint venture
or other business entity, which competes with respect to any services
or products of the Company which are either offered or are being
developed by the Company as of the date of termination; provided,
however, that the Consultant may own, solely as an investment, not more
than one percent (1%) of any class of securities of any publicly held
corporation in competition with the Company whose securities are traded
on any national securities exchange in the United States of America,
and may retain his ownership interest in those entities referred to in
Section 4.1 above.
6.1(b) During the term of this Agreement and, the Consultant shall not,
directly or indirectly, (i) induce or attempt to influence any
executive of the Company to leave its employ, (ii) aid or agree to aid
any competitor, customer or supplier of the Company in any attempt to
hire any person who shall have been employed by the Company, or (iii)
induce or attempt to influence any person or business entity who was a
customer or supplier of the Company during any portion of said period
to transact business with a competitor of the Company in Company's
business.
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6.1(c) During the Term of this Agreement and thereafter, the Consultant
shall not disclose to anyone any information about the affairs of the
Company, including, without limitation, trade secrets, trade
"know-how", inventions, customer lists, business plans, operational
methods, pricing policies, marketing plans, sales plans, identity of
suppliers or customers, sales, profits or other financial information,
which is confidential to the Company or is not generally known in the
relevant trade, nor shall the Consultant make use of any such
information for his own benefit.
6.2 If the Consultant breaches, or threatens to commit a breach of Section
6.1 (the "Restrictive Covenants"), the Company shall have the following
rights and remedies, each of which shall be enforceable, and each of which
is in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity.
6.2(a) The Consultant shall account for and pay over to the Company all
compensation, profits, and other benefits, after taxes, which inure to
Consultant's benefit which are derived or received by the Consultant or
any person or business entity controlled by the Consultant resulting
from any action or transactions constituting a breach of any of the
Restrictive Covenants.
6.2(b) Notwithstanding the provisions of subsection 6.2(a) above, the
Consultant acknowledges and agrees that in the event of a violation or
threatened violation of any of the provisions of Section 6.1, the
Company shall have no adequate remedy at law and shall therefore be
entitled to enforce each such provision by temporary or permanent
injunctive or mandatory relief obtained in any court of competent
jurisdiction without the necessity of proving damages, posting any bond
or other security, and without prejudice to any other rights and
remedies which may be available at law or in equity.
6.3 If any of the Restrictive Covenants, or any part thereof, is held to be
invalid or unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without regard to
the invalid or unenforceable portions. Without limiting the generality of
the foregoing, if any of the Restrictive Covenants, or any part thereof, is
held to be unenforceable because of the duration of such provision or the
area covered thereby, the parties hereto agree that the court making such
termination shall have the power to reduce the duration and/or area of such
provision and, in its reduced form, such provision shall then be
enforceable.
6.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. In the event that the
courts of any one or more of such jurisdictions shall hold such Restrictive
Covenants wholly unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdictions within the
geographical scope of such Restrictive Covenants, as to breaches of such
covenants in such other respective jurisdictions, the above covenants as
they relate to each jurisdiction being, for this purpose, severable into
diverse and independent covenants.
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7) MISCELLANEOUS.
7.1 This Agreement is a personal contract, and the rights and interests of
the Consultant hereunder may not be sold, transferred, assigned, pledged or
hypothecated except as otherwise expressly permitted by the provisions of
this Agreement. The Consultant shall not under any circumstances have any
option or right to require payment hereunder otherwise than in accordance
with the terms hereof. Except as otherwise expressly provided herein, the
Consultant shall not have any power of anticipation, alienation or
assignment of payments contemplated hereunder, and all rights and benefits
of the Consultant shall be for the sole personal benefit of the Consultant,
and no other person shall acquire any right, title or interest hereunder by
reason of any sale, assignment, transfer, claim or judgment or bankruptcy
proceedings against the Consultant; provided, however, that in the event of
the Consultant's death or disability, the Consultant's estate, legal
representative or beneficiaries (as the case may be) shall have the right
to receive all of the benefit that accrued to the Consultant pursuant to,
and in accordance with, the terms of this Agreement.
7.2 The Company shall assign this Agreement to any successor of
substantially all of its business or assets, and any such successor shall
be bound by all of the provisions hereof.
8) ATTORNEYS' FEES. Should any litigation or arbitration be commenced between
the parties hereto or their personal representatives concerning any provision of
this Agreement or the rights and duties of any person in relation thereto, the
party prevailing in such litigation or arbitration shall be entitled, in
addition to such other relief as may be granted, to a reasonable sum as and for
its or their attorneys' fees in such litigation or arbitration which shall be
determined by the court or arbitration board.
9) ARBITRATION. Any matter of disagreement arising under this Agreement shall be
submitted for decision to a panel of three neutral arbitrators with expertise in
the subject matter to be arbitrated. One arbitrator will be selected by each
party and the two arbitrators so selected shall select the third arbitrator. The
arbitration shall be conducted in accordance with the rules of the American
Arbitration Association. The decision and award rendered by the arbitrators
shall be final and binding. Judgment upon the award may be entered in any court
having jurisdiction thereof. Any arbitration shall be held in Orange County,
California, or such other place which may be mutually agreed upon by the
parities.
10) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California.
11) BINDING NATURE. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective representatives, heirs,
successors and assigns.
12) WAIVER. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver shall be
binding unless executed in writing by the party making the waiver.
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13) PARTIAL INVALIDITY. The invalidity or unenforceability of any particular
provision of this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
14) BREACH OF AGREEMENT. In the event that either of the parties hereto shall
breach or fail in the performance of their respective obligations hereunder, the
nonbreaching party has the option to terminate forthwith in writing and without
prior notice.
15) CALIFORNIA LAW. This is a California contract and shall be interpreted and
applied under the laws and statutes of the State of California. The parties
agree that any lawsuit brought under or in relation to this contract shall be
conducted only in Los Angeles County and, assuming the amount in controversy is
sufficient, only in the Superior Court of the State of California, Los Angeles
County, South Bay District. The parties to this Agreement consent and stipulate
to the personal jurisdiction of such court over any dispute.
16) NOTICES. All notices required by this Agreement shall be in writing and
shall be deemed to have been duly given by the party when posted by certified
mail to the other party at the following addresses:
To: Xxxxxx X. Xxxxxx Address: 0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxx, XX 00000
To: Hi-Shear Technology Corporation Address: 00000 Xxxxxxx Xxxxxx
Attn: Xxxxxx X. Xxxxxx Xxxxxxxx, XX 00000
17) PROPRIETARY RIGHTS OF OTHERS. The Consultant agrees to provide the services
based on his accumulated knowledge in the technical fields covered by this
Agreement and amendments thereto, supported by information available in the
public domain. No proprietary property of any other company or individual will
be used by Consultant during the execution of this contract without written
authorization from the owner of such property. All such authorizations shall be
submitted to the Company. Consultant assumes full responsibility for Consultant
violations of the proprietary property rights of others. Consultant agrees to
indemnify and hold HSTC, its officers, agents, and employees harmless from any
claim, expense, defense cost (including all attorneys' fees), damages or
judgment of any kind whatsoever arising out of or incidental to the performance
of this Agreement occasioned in whole or in part by Consultant's use of
proprietary property of others.
18) ENTIRE AGREEMENT. This Agreement supersedes any and all agreements, whether
oral or written, between the parties hereto, with respect to the employment of
Consultant by the Company and contains all of the covenants and agreements
between the parties with respect to the rendering of such services in any manner
whatsoever. Each party to this Agreement acknowledges that no representations,
inducements, promises or agreements, orally or otherwise, have been made by any
party, or anyone acting on behalf of any party, which are not embodied herein,
and that no other agreement, statement or promise with respect to such
employment not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing and
signed by the parties hereto.
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IN TESTIMONY HEREOF, the parties hereto have hereunto executed this Agreement as
of the day and year first above written.
HI-SHEAR TECHNOLOGY CORPORATION ___________________________________
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Date: 28 Feb 05 Date: 2-28-05
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Exhibit "A" To Consulting Agreement
Reference: Agreement between Xxxxxx X. Xxxxxx and Hi-Shear Technology
Corporation dated February 28, 2005.
The following statement of work / terms and conditions are incorporated into the
Consulting Agreement between Xxxxxx X. Xxxxxx and Hi-Shear Technology
Corporation dated February 28, 2005 as if fully set forth at length:
1) STATEMENT OF WORK. Consultant to work on and consult on projects as assigned
by Hi-Shear Technology Corporation (the "Company"), either orally or in writing.
All efforts to be coordinated and agreed to by Hi-Shear's President/CEO.
Consultant shall submit to the Company a monthly report describing effort on
behalf of the Company during that period.
2) PAYMENT. The Company shall pay the Consultant or his estate if deceased or
disabled pursuant to this Agreement at a rate of $15,000 per month for the first
12 months, and $15,750 for the second 12 months. In addition during the term of
this Agreement the following incentive fees will be paid: An incentive fee in
the amount of 15% of the CEO's annual cash incentive amount shall be paid
annually. These payments will be paid concurrent with the CEO's payment. This
Agreement and services of Consultant shall expire on February 28, 2007.
3) TERMINATION. The Company may terminate the Consultant's employment under this
Agreement at any time for Cause. "Cause" shall exist for such termination if
Consultant has in the reasonable judgment of the Company's Board of Directors,
engaged in serious misconduct, which conduct has, or would if generally known,
materially adversely affect the good will or reputation of the Company and which
conduct the Consultant has not cured or altered to the satisfaction of the Board
of Directors within ten (10) days following notice by the Board of Directors to
the Consultant regarding such conduct. If the Company terminates the
Consultant's employment under this Agreement pursuant to the provisions herein,
the Consultant shall not be entitled to receive any compensation following the
date of such termination.
4) EXPENSES
4.1 Consultant shall be entitled to reimbursement of all reasonable
expenses actually incurred in the course of this Agreement. Consultant
shall submit to the Company a standardized expense report form, provided
by the Company, and shall attach thereto receipts for all expenditures.
4.2 The Company shall reimburse Consultant within fifteen (15) days after
submission by Consultant of his expense report.
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5) FULL PAYMENT. Consultant agrees that the compensations as provided for in the
foregoing shall constitute the full payment for the Consultant's services and
for the rights of the Company as defined in the foregoing, which shall include
the rights to make, use and sell without any further payments to the Consultant.
(It is understood that this applies to the designs during this contract and not
prior efforts).
6) PROPERTY RETURN. Consultant further agrees that at the completion of his
services for the Company, or at an earlier time upon demand by the Company, the
Consultant will deliver to the Company any and all drawings, notes, memoranda,
specifications, technical data, and documents containing or disclosing any of
the information or materials resulting from his services as defined herein and
in the Consultant's possession during and at the termination of his services for
the Company.
7) INDEPENDENT CONTRACTOR. It is understood that, for all purposes, Consultant
shall be an independent contractor and shall not be either an agent or employee
of the Company. Consultant agrees to be responsible for payment of all federal,
state and local taxes incurred by him, including but not limited to taxes on
income, withholding taxes, social security and any other taxes which may be due
by the Consultant by reason of performance of this Agreement.
8) CORPORATE APPROVALS. The Company represents and warrants that the execution
of this Agreement by its corporate officer named below has been duly authorized
by the Board of Directors of the Company, is not in conflict with any Bylaw or
other agreement and will be a binding obligation of the Company, enforceable in
accordance with its terms.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
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for: Hi-Shear Technology Corporation Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
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