Re: Exclusive Consulting Agreement (“Agreement”)
xxxxxx
international
Xxxxxx
International Industries, Incorporated 0000 Xxxxxx Xxxx., X.X. Xxx 0000,
Xxxxxxxxxx, XX 00000 (818) 893-8411
December
8, 2006
Xx.
Xxxxx
Xxxxx
0000
Xx.
Xxxxx Xx.
Xxx
Xxxx,
XX 00000
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Re:
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Exclusive
Consulting Agreement
(“Agreement”)
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Dear
Xx.
Xxxxx:
This
letter is written to confirm the terms of your engagement as a consultant to
Xxxxxx International Industries, Inc. (“Harman”) and its subsidiaries
(collectively, the “Company”) following termination of your employment with the
Company on January 31, 2007. This letter agreement (“Agreement”) will become
effective when countersigned by you, and your engagement as a consultant will
commence upon termination of your employment, on the terms set forth below.
It
is our mutual intention that, following the termination of your employment
with
the Company (“Current Employment Agreement”), this Agreement will supersede and
replace any and all other employment, consulting or other agreements with the
Company save for post-employment benefits to which you are entitled from the
Company, and any other agreements specifically excepted in this
Agreement.
1. Scope
of Work; Responsibilities.
(a) General. You
will
be responsible for advising the Company generally concerning acoustic science
and emerging technologies, for assisting its business leaders in achieving
acoustic excellence, and for representing the Company and at professional and
trade association forums. You will furnish the Company with the full benefit
of
your knowledge, skill and experience as to all questions and problems which
Company may present you and you shall answer, advise, suggest and opine with
respect to such questions and problems to the best of your ability.
(b) Specific
Tasks. Your
specific tasks will fall into the three categories listed below, and you will
investigate and consult as requested or as you deem necessary in order to
accomplish them. The completion of those tasks pursuant to the agreed upon
performance criteria, rather than the amount of hours you spend in providing
services to the Company, shall determine whether you are performing adequately
under this Agreement.
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1.
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Making
presentations as requested by and as mutually agreed with the Company’s
Consumer, Professional and Automotive OEM groups, either internally
or to
customers, introducing them to the Company and its contributions
to
acoustic science;
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2.
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Attendance
at major conferences or trade shows by the following organizations,
plus
any others agreed to by the Company, as well as membership therein
as
required or appropriate, including participation as a speaker or
panelist
as requested by the Company or the relevant organization and agreed
by
you:
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Xx.
Xxxxx Xxxxx
December
8, 2006
Page
2
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·
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Audio
Engineering Society (AES) - one U.S. and one European convention
per
year;
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·
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Custom
Electronic Design and Installations Association (CEDIA) - once per
year;
and
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·
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2007
International Electroacoustics Technology Symposium in Nanjing and
Shenzhen, China.
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3.
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Continued
work on completion or updating of various white papers, articles
and books
for audio professional or trade associations and/or individuals engaged
in
the field of acoustics, including among others the following
-
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·
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Permanent
educational curriculum on loudspeakers and rooms (CEDIA);
and
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·
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Technical
treatise on Sound Reproduction.
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(c) Exclusive
Engagement. This
is
an exclusive consulting engagement for the Company, and you will not accept
or
participate in any consulting arrangement or business involving any other
automotive, consumer or professional audio electronics.
(d) Reporting
Relationships.
You will
be accountable to the Chief Executive Officer of the Company and to Xxx Xxxx
of
Xxxxxx Xxxxxx Automotive Systems GmbH for all phases of your activities, or
to
such other person as may be designated by the Company. You will as necessary
and
at times mutually agreed by you, advise and consult with the Company’s
Group/Division R&D and/or Technology executives, as well as with executive
officers of the Company and with the Group and Division presidents.
2. Compensation.
The
Company shall pay you Five thousand dollars ($5,000.00) per month on the first
day of each month following a month in which consulting services were rendered.
Such compensation shall be full consideration for your services hereunder
regardless of any additional time that you may devote.
3. Expense
Reimbursement.
You
will be entitled to reimbursement from the Company for any ordinary and
necessary expenses incurred by you in performing your duties hereunder upon
submission to the Company of an expense report in accordance with Company
policies and procedures, and providing such additional receipts and records
as
may be requested by Company to substantiate such expenses.
4. Term.
The
term of this Agreement shall commence on the first business day after the date
upon which your employment with the Company terminates, subject to earlier
termination as provided herein, and will continue thereafter for a period of
one
(1) year; provided,
however,
that the term of this Agreement may, at the Company’s option at the expiration
of its initial or any subsequent term, be extended for one additional year
unless you advise the Company in writing at least thirty (30) days prior to
such
expiration of your intention not to extend this Agreement. The Company may
immediately terminate this Agreement at any time for breach by you of any term
hereof. Except as otherwise provided in this Agreement, and except for
post-employment benefits to which you are entitled from the Company, neither
you
nor Harman shall have any obligation to the other following termination of
this
Agreement.
Xx.
Xxxxx Xxxxx
December
8, 2006
Page
3
5. Place
of Performance.
The
Company shall make available to you such of its facilities as are reasonably
required by you in the performance of your services hereunder. If the parties
agree that you should perform your services elsewhere, the Company shall not
be
responsible for rent or other charges in connection with those
facilities.
6. Warranties.
You
represent, warrant and undertake that on the day your employment with the
Company ends (a) you will be free to render consulting services to Company,
(b)
such services will not conflict with any prior commitment or obligation you
have, and (c) you will not at any time use for the Company’s benefit or disclose
to the Company any information you have received from third parties and that
you
are lawfully obligated to keep confidential.
7. Confidentiality.
You
will keep in strict confidence, and will not, directly or indirectly, at any
time during or after your employment or consultancy with the Company, disclose,
furnish, disseminate, make available or, except in the course of performing
your
duties of employment or consultancy, use any trade secrets or confidential
business and technical information of the Company or its customers or vendors,
without limitation as to when or how you may have acquired such information.
Such confidential information shall include, without limitation, the Company’s
unique selling, manufacturing and servicing methods and business techniques,
training, service and business manuals, promotional product information,
customer and prospective customer lists, other customer and prospective customer
information and other business information. You specifically acknowledge that
all such confidential information, whether reduced to writing, maintained on
any
form of electronic media, or maintained in your mind or memory and whether
compiled by the Company and/or you, derives independent economic value from
not
being readily known to or ascertainable by proper means by others who can obtain
economic value from its disclosure or use, that reasonable efforts have been
made by the Company to maintain the secrecy of such information, that such
information is the sole property of the Company and that any retention and
use
of such information by you during your employment or consultancy with the
Company (except in the course of performing your duties and obligations
hereunder) or after the termination of your employment or consultancy shall
constitute a misappropriation of the Company’s trade secrets.
8. Inventions.
You
will fully and promptly disclose in writing to Company any and all ideas,
inventions and discoveries which are solely or jointly made, conceived,
developed or reduced to practice during the term hereof which relate to
loudspeakers or the production thereof. All documents, drawings and other
material which constitute your work product shall be and remain the sole
property of Company, and you will return to Company all such documents, and
all
copies thereof, upon termination hereof. Your entire right, title and interest
in and to such ideas, discoveries and inventions, both domestic and foreign,
shall become the sole property of Company. You will execute, acknowledge and
deliver to Company any and all further assignments, contracts or other
instruments Company deems necessary or expedient, without further compensation,
to carry out and effectuate the intents and purposes of this Agreement and
to
vest in Company each and all of the rights granted or stated to be granted
to
Company. The obligations set forth in this Section 8 shall survive any
termination of this Agreement.
Xx.
Xxxxx Xxxxx
December
8, 2006
Page
4
9. Independent
Contractor.
You
shall render services hereunder personally without delegating any part of your
work to any other person. You will at all times be acting and performing
hereunder as an independent contractor and not as an agent or employee of the
Company. Nothing in this Agreement shall be deemed to create an
employee-employer or agent-principal relationship between you and the Company,
nor to authorize you to act as an agent or legal representative for the Company.
You hereby acknowledge that you are not authorized to act as a Company legal
representative or otherwise. You further acknowledge that you will not be
entitled to participate as an employee in or under any employee benefit plan
of
Company, nor to receive any other employment rights or benefits available to
or
enjoyed by employees of the Company, except to the extent earned prior to your
termination of employment with the Company.
10.
Noncompetition.
During
the term of this Agreement you shall not, without the Company’s prior written
approval, establish or engage in any competitive business, directly or through
any enterprise or company in which you are interested or act as a partner,
shareholder, director, officer, employee, or consultant. For purposes hereof,
the words “competitive business” shall mean an enterprise engaged in designing,
developing, manufacturing or procuring loudspeakers for consumer, professional
audio or automotive applications.
11.
Assignment.
This
Agreement requires the performance of personal services by you. You shall not
assign any right, delegate any duty or otherwise transfer any interest hereunder
without the Company’s prior written approval, and any attempted such assignment,
delegation or transfer without such consent shall be null and void.
12.
Notices.
All
notices and other communications required or permitted to be given hereunder,
if
in written form, will be deemed given two days after deposit in the U.S. mail,
postage prepaid and addressed to the parties at their respective addresses
set
forth below (unless by written notice a different person or address shall have
been designated).
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If
to Company, to:
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If
to Consultant, to:
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Xxxxxx
International Industries, Inc.
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Xx.
Xxxxx Xxxxx
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0000
Xxxxxx Xxxx.
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0000
X. Xxxx Xxxxx Xx.
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Xxxxxxxxxx,
XX 00000
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Xxx
Xxxx, XX 00000
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Attn:
Vice
President & General Counsel
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Phone:
(000) 000-0000
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Phone:
(000) 000-0000
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13.
Entire
Agreement.
This
Agreement contains the entire agreement between the parties and all prior and
collateral representations or promises are merged herein. No modification,
waiver or termination of any provision contained herein nor any future
representation, promise or condition in connection with the subject matter
hereof shall be binding upon the parties unless made in writing, signed by
you
and an officer of, or the original signatory hereon for Company, as the case
may
be.
14.
Waiver.
No
waiver by either party of any breach of any covenant or provision of this
Agreement shall be deemed to be a waiver of any preceding or succeeding breach
of the same or any other covenant or provision.
15.
Law.
This
Agreement shall be construed in accordance with the laws of the State of
California, without regard to its conflict of laws doctrine.
Xx.
Xxxxx Xxxxx
December
8, 2006
Page
5
16.
Arbitration.
Any
dispute concerning your employment or its termination shall be resolved by
final
and binding arbitration before a neutral arbitrator; provided,
however,
that no dispute concerning breach or performance of the terms set forth in
paragraphs 7, 8, or 10 of this Agreement shall be arbitrated. The arbitrator
shall be selected by mutual agreement or in accordance with the procedures
of
the American Arbitration Association. Arbitration shall take place in Los
Angeles, California unless you and the Company otherwise agree in
writing.
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Xxxxxx
International Industries, Inc.
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(“Company”)
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||||
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/s/
Xx. Xxxxx Xxxxx
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By:
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/s/
Xxxxxxx Xxxxx
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Xx.
Xxxxx Xxxxx (“Consultant”)
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Name:
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Xxxxxxx
Xxxxx
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Title:
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Chief
Executive Officer
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