Exhibit 10.3.6
CONSULTING AGREEMENT
THIS AGREEMENT is made and entered into this 16th day of September,
1997, by and between BALLANTYNE OF OMAHA, INC., a Delaware corporation, with
its principal offices at 0000 XxXxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (the
"Company"), and XXXXXXX X. XXXXXX an individual residing at 00000 Xxxx Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Pichel").
W I T N E S S E T H
WHEREAS, Pichel is a stockholder and the president of Sky-Tracker of
America, Inc., a California corporation; and
WHEREAS, by that certain Asset Purchase Agreement dated September 8,
1997 (hereinafter referred to as the "Purchase Agreement"), the Company has
agreed to purchase certain of the assets of Sky-Tracker of America, Inc.; and
WHEREAS, pursuant to the Purchase Agreement, Pichel and Company have
agreed to enter into a Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties intending to be legally bound agree as follows:
1. ENGAGEMENT AS CONSULTANT. Company hereby engages Pichel as a
consultant for a term beginning on September 16, 1997, and terminating on
September 16, 2000, and Pichel hereby accepts such engagement.
2. ACTIVITIES OF CONSULTANT. During the term of this Agreement, Pichel
will assist the Company in the operation of the assets and business which the
Company has purchased from Sky-Tracker of America, Inc., in accordance with
the Purchase Agreement, and will render counsel and advice, will perform
certain engineering and design services in the development of new products
and the improvement of existing products, and will perform such other
services as the Company assigns to him from time to time. Pichel shall devote
a minimum of thirty (30) hours per week during the term of this Agreement to
the performance of his duties hereunder, and shall furnish the Company an
accounting of such time spent in the performance of such duties. Consultant
may perform some of his engineering, design, prototype and/or developmental
activities at his own design and shop facility in Aguanga, California, unless
the Company deems it reasonably necessary or desirable that such services be
performed at the Company's facilities. Consultant shall undertake such travel
as the Company deems reasonably necessary or desirable to promote the
business and affairs of the Company.
3. COMPENSATION. As compensation for his services to be rendered to the
Company, the Company will pay Pichel at the rate of Six Thousand Two Hundred
Fifty Dollars ($6,250) per month, payable on the last business day of each
month during the term hereof. Company shall review such compensation on
January 1, 1999, and thereafter on January 1 of each year of this Agreement,
but in no event shall such compensation in each subsequent year be less than
the aforesaid amount. In addition, Pichel will be reimbursed for all
out-of-pocket expenses incurred on behalf of the Company in the performance
of his services hereunder.
4. OFFICE. Pichel will be entitled to use the Company's office located
at 0000-0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxxxxxx 00000, and will be
entitled to use secretarial services and other administrative support
provided by the Company.
5. INSURANCE. As additional consideration for the services to be
performed by Pichel, the Company agrees to reimburse Pichel for the cost of
providing Pichel with Medicare Supplement Insurance and medical and hospital
insurance for Pichel's spouse.
6. CONFIDENTIALITY/DISCLOSURE OF INFORMATION. Pichel acknowledges that
during the term of this Agreement he will be exposed to the Company's trade
secrets, customer lists, processes, ideas, plans, programs, procedures,
intellectual property, and other proprietary assets. Pichel acknowledges that
the Company's trade secrets, as they may exist from time to time, including
but not limited to, Company's list of customers, processes, ideas, plans,
programs, procedures, and know-how are valuable, special and unique assets of
Company's business, access to and knowledge of which may be essential to the
performance of Pichel's duties hereunder. The parties agree that Pichel will
not, during the term hereof, nor at any time thereafter, disclose such
secrets to any person, firm corporation, association or other entity, or use
such secrets for any reason or purpose whatsoever; nor shall Pichel make use
of any such property for his own purposes or for the benefit of any other
person, firm, corporation or other entity (except Company) under any
circumstances during or after the term of this Agreement. Notwithstanding the
foregoing provisions of this paragraph, Pichel may use or disclose any
general know-how, ideas, procedures, processes and any other general industry
information and technical knowledge for his own use or for the use of any
other person or entity after the expiration of the term of the
Non-competition Agreement referred to in Paragraph 7 below; provided that
such general know-how, ideas, procedures, processes and other general
industry and technical information: (i) shall not be proprietary assets of
the Company and (ii) shall not constitute assets purchased by Company
pursuant to the Purchase Agreement.
7. NON-COMPETITION AGREEMENT. The parties acknowledge that they have
entered into a Non-competition Agreement of even date herewith, and that
Pichel shall be bound by the provisions of said Non-competition Agreement.
Further, the provisions of said Non-competition Agreement are hereby
incorporated herein by this reference as though they were an original part of
this Consulting Agreement.
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8. INVENTIONS AND DISCOVERIES
x. Xxxxxx hereby sells, transfers and assigns to Company all of
the entire right, title and interest of Pichel in and to all inventions,
ideas, disclosures, and improvements, whether patented or unpatented, and
copyrightable material made or conceived by Pichel, solely or jointly,
during the term of this Agreement which relate to the products and
services manufactured or performed by Company or which otherwise relate
or pertain to the business, functions or operations of Company.
x. Xxxxxx has represented to Company that he has developed certain
improvements, modifications and additions to U.S. Patent No. 4,298,911.
Company has purchased said patent from Sky-Tracker of America, Inc., in
accordance with the Purchase Agreement. Pichel hereby sells, transfers
and assigns to Company all right, title and interest in and to all such
improvements, modifications and additions to said patent. Company shall
have the sole right to apply for United States patents for such
improvements, modifications and additions.
x. Xxxxxx agrees to communicate promptly and to disclose to Company,
in such form as Pichel may be required by the Company to do so, all
information, details and data pertaining to such inventions, ideas,
disclosures, improvements, modifications and additions, and to execute
and deliver to Company such formal transfers and assignments and such
other papers and documents as may be required of Pichel to permit Company
to file and prosecute the patent applications and, as to copyrightable
material, to obtain copyrights thereof.
d. If, during the term hereof, Pichel shall develop any ideas,
inventions, writings, patents, improvements or other discoveries which
do not relate to products and services manufactured and performed by the
Company, or which do not otherwise relate or pertain to the business,
functions or operations of the Company (the "Unrelated Inventions and
Discoveries"), Pichel shall grant to Company the exclusive right of
first refusal in connection with the manufacture, marketing, development,
sale and distribution of such Unrelated Inventions and Discoveries. Such
right of first refusal shall be subject to the parties entering into a
Definitive Agreement specifying the terms and conditions of such
manufacture, marketing, development, sale and distribution of any such
Unrelated Inventions and Discoveries, and any royalties or other
compensation to be paid to Pichel therefor.
9. INDEPENDENT CONTRACTOR. For the purposes of this Agreement, and the
services to be rendered hereunder, Pichel shall, at all times, be an
independent contractor and shall not be considered an employee of the Company.
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10. TERMINATION
a. Notwithstanding anything to the contrary provided herein, the
Company or Pichel may give the other sixty (60) days' written notice
prior to the end of the term hereof, or of any extension or renewal
hereof, of such party's intention to negotiate a new consulting
arrangement commencing at the end of the term or to terminate this
Agreement. In the event no such notice is given, the term described in
Paragraph 1 above shall automatically continue for an additional year,
and this subsection (a) shall be applicable again with each such one
(1) year extension.
b. This Agreement may be terminated by Company, at its discretion,
upon Pichel's death, inability to perform, or incapacity (being defined
as inability to perform normal activities and functions for a period of
one hundred eighty (180) consecutive days) or for cause.
c. This Agreement may be terminated by Pichel in the event that
Company breaches any of the terms or conditions of this Agreement and
such breach is not cured by Company within ten (10) days after written
notice.
11. MISCELLANEOUS. The following miscellaneous provisions shall apply
to this Agreement:
a. ENTIRE AGREEMENT. This agreement constitutes the entire
agreement and understanding between the parties with respect to the
subject matter hereof, and supersedes all prior agreements and
understandings, oral and written, between the parties with respect
thereto. The Agreement may be amended or supplemented at any time only
by an instrument in writing signed by both of the parties.
b. APPLICABLE LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
c. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective personal
representatives, heirs, successors and assigns, except that the
obligations of Pichel hereunder may not be assigned.
d. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing and sent to the other
party by certified mail, return receipt requested, to the address for
such party set forth above.
e. HEADINGS. The headings of the sections herein are for
convenience only and shall not be construed as in any manner defining,
limiting, or describing the scope or intent of the particular sections
to which they refer, or as affecting the meaning or construction of the
language in the body of such sections.
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IN WITNESS WHEREOF, the parties hereto have set their hands the date
first above written.
"Company"
BALLANTYNE OF OMAHA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
___________________________________
Xxxxxx X. Xxxxxxxxxx, Vice Chairman
"Pichel"
/s/ Xxxxxxx X. Xxxxxx
____________________________________
Xxxxxxx X. Xxxxxx
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