Exhibit 10.6
CONSULTING AGREEMENT dated as of May 5, 2003 (this "Agreement") between (i)
TELEX COMMUNICATIONS, INC., a Delaware corporation (the "Company"), and (ii) Xxx
Xxxxxxx ("Consultant").
Witnesseth:
Whereas, the Company desires to receive business advice from time to time
from Consultant, and Consultant desires to provide such services
to the Company.
Now, therefore, the Company and Consultant hereby agree as follows
1. Engagement. The Company hereby engages Consultant as a consultant, and
Consultant hereby agrees to provide business advice to the Company from
time to time as requested by the Company, all on the terms and subject to
the conditions set forth below.
2. Services.
Consultant hereby agrees during the term of this Agreement to assist,
advise and consult with the management of the Company and its subsidiaries
in such manner and on such business matters as may be reasonably requested
from time to time by the Company including participation in quarterly
business reviews with the CEO to effect a smooth transition.
3. Fee. In consideration of providing services during the term of this
Agreement, the Company shall pay to Consultant a monthly fee of $30,000,
for a twelve-month period beginning May 5, 2003.
4. Payment of Expenses. The Company will also reimburse Consultant promptly
for Consultant's reasonable out-of-pocket expenses incurred by Consultant
in accordance with policies approved from time to time by the Company and
in connection with the performance of Consultant's duties hereunder.
5. Term.
(a) This Agreement shall be in effect beginning May 5, 2003 and shall
automatically terminate on April 30, 2004.
(b) Upon any termination of this Agreement, any unpaid and unreimbursed
expenses that shall have been incurred prior to such termination
(whether or not such Expenses shall then have become payable), shall be
immediately paid or reimbursed, as the case may be, by the Company.
6. Independent Contractor Status. The parties agree that Consultant shall
perform services hereunder as an independent contractor, retaining control
over and responsibility for his own operations. Consultant shall not,
solely by virtue of this Agreement or the arrangements hereunder, be
considered an employee or agent of the Company nor shall he have authority
to contract in the name of the Company.
7. Binding Effect: Assignment. This Agreement is not assignable by either
party without the prior written consent of the other party, which consent
shall be granted in such other party's sole discretion.
8. Non-Disclosure. Consultant shall not at any time after the date hereof
divulge, provide, or make accessible to anyone, other than in connection
with the business of the Company, any knowledge or information with respect
to confidential or secret processes, inventions, discoveries, improvements,
formulae, plans, materials, devices, materials, or ideas or other know-how,
whether patentable or not, with respect to any confidential or secret
aspects of the Company's business (including without limitation customer
lists, supplier lists and pricing arrangements with customers or suppliers
or any similar lists, arrangements or understandings, marketing plans,
sales plans, manufacturing plans, management organization information, data
and other information relating to members of the Board of Directors of the
Company or its affiliates, or its or their management), operating policies
or manuals, business plans, financial records, packaging designs or other
financial, commercial, business or technical information relating to the
Company or any of its subsidiaries, or information designed as confidential
or proprietary that the Company or any of its subsidiaries may receive
belonging to suppliers, customers or others who do business with the
Company or any of its subsidiaries (collectively, "Confidential
Information"); provided, however, that Consultant may disclose such
information (i) at the request of any governmental regulatory authority or
in connection with an examination of Consultant by any such authority, (ii)
pursuant to subpoena or other court process, (iii) when required to do so
in accordance with the provisions of any applicable law or regulation, or
(iv) if such information has otherwise been made generally available to the
public other than by reason of Consultant's breach of this paragraph 8.
Upon the expiration of the Agreement, Consultant shall promptly deliver to
the Company all property relating to the business of the Company, including
all Confidential Information, and all copies thereof that are in the
possession or control of Consultant.
9. Inventions. Consultant shall promptly disclose to the Company all
processes, trademarks inventions improvements and discoveries related to
the business of the Company (collectively, "Developments") conceived or
developed by him or with others during the Term of Agreement, if such
Developments were conceived or developed during the course of Consultant
performing services for the Company or through the use of the Company's
resources. All such Developments shall be the sole and exclusive property
of the Company. Consultant, upon the request of and at the Company's
expense, shall assist the Company in obtaining patents thereon and execute
all documents and other instruments necessary or proper to obtain letters
patent, including assignments to the Company of any invention, and to vest
the Company with full title thereto.
10. Covenant Not to Compete. During Consultant's assignment with the Company or
any of its subsidiaries or affiliates, Consultant agrees that he shall not
compete, directly or indirectly, with the business conducted by the Company
or any of its subsidiaries, whether as an employee, director, agent,
principal, consultant, stockholder or limited partner owning more than 5%
of any class of securities or equity of a corporation, association or
partnership, or by maintaining any other type of interest in or affiliation
with or providing any assistance whatsoever to, any other person, firm,
corporation or entity which at the time of Consultant's affiliation
therewith is in direct competition with any facet of the business then
being conducted by the Company or any of its subsidiaries.
11. Governing Law. This Agreement shall be governed in all respects, including
validity, interpretation and effect, by the law of the State of Minnesota
regardless of the law that might be applied under principles of conflicts
of laws. The parties agree that any disputes arising under this Agreement
shall be brought before a court of competent jurisdiction sitting in
Minnesota.
12. Entire Agreement. This Agreement contains the complete and entire
understanding and agreement of each party hereto with respect to the
subject matter hereof and supersedes all prior and contemporaneous
understandings, conditions and agreements, oral or written, express or
implied, in respect of the subject matter hereof.
13. Amendment: Waivers. No amendment, modification, supplement or discharge of
this Agreement, and no waiver hereunder, shall be valid or binding unless
set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, supplement, discharge or waiver
is
sought, and acknowledged by the other party. Any such waiver shall
constitute a waiver only with respect to the specific matter described in
such writing and shall in no way impair the rights of the party granting
such waiver in any other respect or at any other time. The rights and
remedies herein provided are cumulative and are not exclusive of any rights
or remedies that any party may otherwise have at law or in equity or
otherwise.
* * *
In witness whereof, the parties have duly executed this Agreement as of the date
first above written.
TELEX COMMUNICATIONS, INC. CONSULTANT:
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxx Xxxxxxx
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Xxxxx X. Xxxxxxx Xxx Xxxxxxx
Chairman of the Board
