CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is entered into this 31st
day of December, 1998 by and between Xxxxxxxx, Inc., a Minnesota corporation
("Company") and Xxxxx X. Xxxxxxx ("Xxxxxxx").
W I T N E S S E T H:
In consideration of the covenants and agreements herein set forth and
of the mutual benefits accruing to Company and to Xxxxxxx from the consulting
relationship to be established between the parties by the terms of this
Agreement, Company and Xxxxxxx agree as follows:
1. Consulting Relationship. As of January 1, 1999, Company will retain
Xxxxxxx and Xxxxxxx will be retained by Company, as an independent consultant
and not as an employee, on the terms and conditions described herein. The
consulting arrangement shall terminate on August 27, 1999, unless an earlier
or later date is agreed upon by the parties in writing prior to that date.
2. Consulting Services. During the term of this Agreement, Xxxxxxx will,
with a reasonable degree of skill and care, perform such duties and execute
the policies of Company as reasonably requested by its Board of Directors;
provided, that said duties and policies will not be inconsistent with the
nature of the duties performed by Xxxxxxx during his active service with
Company as an officer and employee thereof. Such duties shall include the
following:
(a) Establish new relationships with investment bankers and improve
analyst coverage;
(b) Develop market partners;
(c) Identify a chip industry candidate for the Company's Board of
Directors;
(d) Continue to develop the Shinko, Hitachi, and Sumitomo Bakelite
relationships;
(e) Manage a transition with the Company's large investors;
(f) Participate in the quarterly conference calls; and
(g) Assist in capital raising.
(h) Introduce management team to Institute of Printed Circuitry and
manage appropriate transition.
3. Compensation. During the term of this Agreement, the Company agrees to
pay Xxxxxxx at an annual rate of One Hundred Seventy-Five Thousand Dollars
($175,000), payable in pro rata installments on the first and fifteenth day
of each month, the first such payment due on January 15, 1999.
4. Restrictions on Competition. So long as payments are being made to
Xxxxxxx under this Agreement, Xxxxxxx shall not, without the prior written
consent of the Company, accept employment or render service to any person,
firm or corporation directly or indirectly in competition with the Company or
affiliate thereof, in the United States or any of its territories or
possessions, or directly or indirectly enter into or in any manner take part
in or lend his name, counsel or assistance to any venture, enterprise,
business or endeavor, either as proprietor, principal, investor, partner,
director, officer, employee, consultant, advisor, agent, independent
contractor, or in any other capacity whatsoever for any purpose which would
be competitive with the business of the Company or any affiliate thereof,
provided, however, that the foregoing shall not be deemed to prohibit Xxxxxxx
from acquiring an equity interest not in excess of five percent (5%) in any
company, the shares of which are listed on any national stock exchange or are
traded and quoted on the National Association of Securities Dealers Automated
Quotations System.
5. Title to Certain Tangible Property. All tangible materials (whether
original or duplicate) including, but not in any way limited to, equipment
purchase agreements, file or data base materials in whatever form, books,
manuals, sales literature, equipment price lists, training materials,
customer lists and records, customer files, correspondence, documents,
contracts, orders, messages, memoranda, notes, agreements, invoices,
receipts, lists, software listings or printouts, specifications, models,
computer programs, and records of any kind in the possession or control of
Xxxxxxx which in any way relate or pertain to Company's business, including
the business of the subsidiaries or affiliates of Company, whether furnished
to Xxxxxxx by Company or prepared, compiled or required by Xxxxxxx during his
consulting relationship with Company, shall be the sole property of Company.
At any time upon request of Company, and in any event promptly upon
termination of this Agreement, Xxxxxxx shall deliver all such materials to
Company.
6. Trade Secrets and Confidential Information. During the term of the
Agreement or at any time thereafter, Xxxxxxx will not, without the express
written consent of Company directly or indirectly communicate or divulge to,
or use for his own benefit or the benefit of any other person, firm,
association or corporation, any of Company's or its subsidiaries' or
affiliates' trade secrets, proprietary data or other confidential information
including, by way of illustration, the information described in Section 5,
which trade secrets, proprietary data and other confidential information were
communicated to or otherwise learned or acquired by Xxxxxxx in the course of
the consulting relationship covered by this Agreement, except that Xxxxxxx
may disclose such matters to the extent that disclosure is required (a) in
the course of the consulting relationship with Company, or (b) by a Court or
other governmental agency of competent jurisdiction. As long as such matters
remain trade secrets, proprietary data or other confidential information,
Xxxxxxx will not use such trade secrets, proprietary data or other
confidential information in any way or in any capacity other than pursuant to
this Agreement and to further the Company's interests.
7. The Complete Agreement. This Agreement represents the complete
Agreement between Company and Xxxxxxx concerning the subject matter hereof
and supersedes all prior agreements or understandings, written or oral. No
attempted modification or waiver of any of the provisions hereof shall be
binding on either party unless in writing and signed by both Xxxxxxx and
Company.
8. General Provisions.
(a) Notices. Any notice required or permitted to be given hereunder
shall be in writing and shall be effective three business days after it
is properly sent by registered or certified mail, if to the Company to
President, Sheldahl, Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx
00000, or if to Xxxxxxx at his resident address, or to such other
address as either party may from time to time designate by notice.
(b) Assignability. This Agreement may not be assigned by either
party without the prior written consent of the other party, except that
no consent is necessary for the Company to assign this Agreement to a
corporation succeeding to substantially all of the assets or business
of the Company whether by merger, consolidation, acquisition or
otherwise, so long as such successor corporation expressly assumes all
of the obligations of the Company under this Agreement. This Agreement
shall be binding upon Xxxxxxx, his heirs and permitted assigns and the
Company, its successors and permitted assigns.
(c) Independent Contractor. Xxxxxxx is an independent contractor and
not an employee, partner or co-venturer of, or in any other service
relationship with, the Company, and the manner in which Xxxxxxx'x
services are rendered shall be within Xxxxxxx'x sole control and
discretion. Xxxxxxx shall be responsible for all payroll and other
taxes arising from compensation and other amounts paid under this
Agreement.
(d) Termination. Either the Company or Xxxxxxx may terminate this
Agreement at any time on thirty (30) days' prior written notice upon a
material breach of the provisions of this Agreement if such breach has
not been cured during such notice period. On termination of this
Agreement Xxxxxxx shall deliver to the Company all Company property and
information in the possession of Xxxxxxx or any of his employees,
representatives or agents.
(e) Damages. Xxxxxxx acknowledges that a breach of any of the terms
of Sections 4, 5 or 6 of this Agreement will render irreparable harm to
the Company, and that a remedy at law for breach or threatened breach
of the Agreement is inadequate, and that the Company shall therefore be
entitled to any and all equitable relief, including, but not limited
to, injunctive relief, and to any other remedy that may be available
under any applicable law or agreement between the parties.
(f) Acknowledgment. Xxxxxxx acknowledges and agrees that the
restrictions, covenants, agreements and obligations contained in this
Agreement hereof are reasonable and necessary for the protection of the
legitimate interests of the Company. Xxxxxxx represents and warrants
that Xxxxxxx has not previously assumed any obligations inconsistent
with those undertaken by Xxxxxxx under this Agreement.
(g) Waiver. The waiver by the Company of a breach of any provision
of this Agreement by Xxxxxxx shall not operate or be construed as a
waiver of a subsequent breach by Xxxxxxx.
(h) Applicable Law. It is the intention of the parties hereto that
all questions with respect to the construction and performance of this
Agreement and the rights and liabilities of the parties hereto shall be
determined in accordance with the laws of the State of Minnesota.
XXXXXXXX, INC.
By /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Its Vice Chairman of the Board
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
