FIRST AMENDMENT TO
CONSULTING AGREEMENT
This First Amendment is made and entered into effective as of the 1st day
of October, 1997 by and between Oxboro Medical International, Inc., a Minnesota
corporation (the "Company"), and Xxxxx X. Xxxxxxxxx ("Xxxxxxxxx" or
"Consultant").
R E C I T A L S
WHEREAS, the Company and Xxxxxxxxx have entered into a Consulting Agreement
as of the 1st day of November, 1995;
WHEREAS, the Consulting Agreement was drafted with the intent that it would
commence upon the termination of Xxxxxxxxx'x Employment Agreement with the
Company on March 31, 1998;
WHEREAS, Xxxxxxxxx and the Company have negotiated and expect to enter into
an agreement which extends the term of Xxxxxxxxx'x Employment Agreement for an
additional eighteen months through September 30, 1999; and,
WHEREAS, as a condition and in consideration of Xxxxxxxxx'x entering into
said Extension Agreement, the Company has agreed to amend the terms of the
Consulting Agreement as set forth below.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained, the parties hereto agree as follows:
I. CONSULTING SERVICES
Section 1 of the Consulting Agreement, entitled "Consulting Services", is
hereby superseded and replaced by the following new Section 1:
1. CONSULTING SERVICES. Consultant agrees that commencing on the
date of his termination of employment or retirement from his duties as an
officer and employee of the Company, he will hold himself available, unless
disabled from doing so as a result of illness or other incapacity, to
advise and consult from time to time, by telephone, in person at the
Company's offices, or in such other manner and at such other place or
places as may from time to time be mutually agreeable to Consultant and the
Company, with the officers, directors, employees, and other representatives
of the Company when and to the extent reasonably requested to do so by the
Company's officers and/or directors, relative to the Business of the
Company and to give to the Company, through such officers,
directors, employees, and other representatives, the benefit of his
experience and knowledge of the Business and of his judgment on the
financial, merchandising, personnel, and other management aspects,
problems, and policies of the Business.
During the initial five (5) year term of this Agreement, Consultant
shall not be required to provide consulting services for more than five
days per month (or sixty days per year); however, Consultant may, at his
own discretion, devote two of said five days a month to the review of
operations, manufacturing, marketing/sales, product development and
finances/accounting, with full access to the Company's books and records,
information and sales and accounting data and systems, with assistance from
Company staff, as reasonably requested by Consultant. In no event during
such initial five (5) year term shall Consultant be required to provide
more than ten (10) days in any given calendar month.
During the extended term of this Agreement, Consultant shall not be
required to provide consulting services for more than one and one-half days
a month (or eighteen days per year); however, Consultant may, at his own
discretion, devote one (1) of said one and one-half (1 1/2) days a month to
review the operations, manufacturing, marketing/sales, product development
and finances/accounting, with full access to the Company's books and
records, information and sales and accounting data and systems, with
assistance from Company staff, as reasonably requested by Consultant. In
no event during such extended term shall Consultant be required to provide
more than five (5) days in any given calendar month.
II. COMMENCEMENT
Section 3 of the Consulting Agreement, entitled "Commencement", is hereby
superseded and replaced by the following new Section 3:
3. COMMENCEMENT. This Agreement shall commence upon termination of
the Employment Agreement, as amended, whether such Employment Agreement is
terminated during the initial term or extended term or as of or on the
termination date and whether the Employment Agreement is terminated by the
Company, its successors or assigns, with or without cause, or by Xxxxxxxxx,
with or without cause; however, if Xxxxxxxxx voluntarily terminates his
employment with the Company prior to reaching age fifty-five without good
cause attributable to the Company, then this Agreement, as amended, shall
be of no further force and effect. A "change in control," as defined in
Xxxxxxxxx'x Employment Agreement, as amended, shall be deemed to constitute
good cause attributable to the Company.
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III. COMPENSATION
The first paragraph under Section 4 of the Consulting Agreement, entitled
"Compensation", is hereby superseded and replaced by the following paragraph:
4. COMPENSATION. For the services rendered by Consultant pursuant
to this Agreement during the initial five (5) year term hereof, the Company
shall pay the Consultant annually the sum of One Hundred Fifty Thousand and
No/100 ($150,000.00) Dollars in twelve (12) equal monthly installment
payments in the amount of Twelve Thousand Five Hundred and No/100
($12,500.00) Dollars each. For services rendered by Consultant pursuant to
this Agreement, as amended, during any extension hereof beyond the initial
five (5) year term, the Company shall pay Consultant annually Fifty
Thousand and No/100 ($50,000.00) Dollars in twelve (12) equal monthly
installment payments in the amount of Four Thousand One Hundred Sixty-Six
and 67/100 ($4,166.67) Dollars each.
IV. TERMINATION
Subparagraphs (d) through (e) under Section 9 of the Consulting Agreement,
entitled "Termination", are hereby superseded and replaced by the following new
subparagraphs:
(d) upon its fifth anniversary, if Consultant's employment terminated on
or before April 1, 1998;
(e) if Consultant's employment is terminated after April 1, 1998, but
before April 1, 1999, upon the sixth anniversary of this Agreement;
(f) if Consultant's employment is terminated after April 1, 1999, then the
term of this Agreement shall be extended an additional full year for
each year or portion thereof that Consultant's employment continues
past April 1, 1999;
(g) if Company is in default hereunder and such default is not cured
within thirty (30) days of written notice thereof, then Consultant can
terminate this Agreement and the non-competition provisions of the
Consulting Agreement, as amended, are of no further force and effect.
V. LEGAL FEES
In the event either party commences legal action to enforce the terms of
the Consulting Agreement, as amended, the prevailing party in such action shall
be reimbursed by the non-prevailing party all legal costs and expenses and
attorney's fees incurred by the prevailing party in such action.
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All other terms of the Consulting Agreement shall remain unchanged, subject
to future amendment by written agreement of the parties hereto.
COMPANY: XXXXXXXXX:
OXBORO MEDICAL
INTERNATIONAL, INC. /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
By /s/ Xxxxxx X. Xxxxxxxxx
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Its Director
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