EXECUTIVE CONSULTING AGREEMENT
Exhibit
10.2
THIS
EXECUTIVE CONSULTING AGREEMENT (this “Agreement”),
dated as of March 31, 2009 (the “Effective
Date”), is made by and between TechPrecision Corporation, a Delaware
corporation (“Company”),
and Xxxxx X. Xxxxxxx, an individual residing in the state of Florida (“Executive”).
BACKGROUND
Company
desires Executive to provide executive management and consulting services,
performing the role of its Interim Chief Executive Officer under the terms of
this Agreement. Executive is willing to provide such services to
Company under the terms of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the promises and
covenants set forth in this Agreement and intending to be legally bound hereby,
Company and Executive agree as follows:
1. Executive Consulting
Services.
1.1. Services. Executive
shall provide executive management and consulting services in the role of
Interim Chief Executive Officer of Company (the “Services”),
reporting to Company’s board of directors (the “Board”). Executive
may perform the Services on a less-than-full-time basis, when and as requested
by the Board, and at such locations as the Board may approve from time to
time.
1.2. Independent
Contractor. Executive and Company intend for Executive to be
an independent contractor to Company for all purposes and not an employee of
Company. Company shall have no obligation to provide any
employment-related benefits to Executive. Executive shall be solely
responsible for paying all compensation and payroll taxes and providing his own
benefits (if any). Executive shall indemnify, defend and hold
harmless Company against any claim that Executive is or was an employee of
Company under this Agreement.
1.3. No
Conflict. Executive represents and warrants to Company
that:
(i) he is not and will not become a
party to any non-competition covenant, non-disclosure agreement or other
agreement, covenant, understanding or restriction that would prohibit Executive
from executing this Agreement and performing fully his duties and
responsibilities hereunder, including under Executive’s employment agreement
between him and National Technical Systems Corporation (“NTS”);
(ii) NTS has consented to Executive
entering into and performing under this Agreement on the terms set forth herein;
and
(iii) Executive can perform his
obligations under this Agreement without disclosing or using any confidential or
proprietary information of any third party.
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2. Compensation.
2.1. As
consideration for Executive’s performance of the Services, Company shall pay to
Executive consulting fees at a rate of Ten Thousand Dollars ($10,000.00) per
month for Services satisfactorily performed by Executive (the “Consulting
Fees”). Payment shall be made within five (5) days of the beginning of
each calendar month during the Term for Services rendered in the prior month.
The Consulting Fees shall be pro rated on a daily basis in respect of any
partial month in which Services are performed. Company also shall reimburse
Executive for all reasonable, documented, pre-approved travel and out of pocket
expenses incurred by Executive in connection with performing the Services
(“Expenses”).
2.2. Executive
shall be solely responsible for the payment of all taxes or contributions
imposed or required by the tax laws of any jurisdiction that pertain to the
amounts paid to Executive under this Agreement.
3. Term and
Termination.
3.1. Term. Subject
to Section 3.2, the term of this Agreement shall
begin on the Effective Date and shall automatically terminate on the date that
is six (6) months thereafter (the “Initial
Term”), unless otherwise extended by the mutual written agreement of the
parties (the “Extended
Term”). The Initial Term and any Extended Terms are together referred to
as the “Term.”
3.2. Termination. Notwithstanding
Section 3.1, either Executive or Company may terminate this Agreement at any
time by giving the other party fifteen (15) days prior written
notice. A party also may terminate this Agreement for breach if the
other party materially breaches any provision of this Agreement and fails to
cure such breach within ten (10) days after the non-breaching party gives the
other party written notice that describes the breach in reasonable
detail.
4. Non-Exclusive
Engagement. Company may from time to time (i) engage other
persons and entities to act as a consultant to Company and perform services for
Company, including services that are similar to the Services, and (ii) enter
into agreements similar to this Agreement with other persons or entities, in all
cases without the necessity of obtaining approval from Executive.
5. Non-Competition and
Protection of Confidential Information.
5.1. Executive
agrees that his services to Company are of a special, unique, extraordinary and
intellectual character and his position with Company places him in a position of
confidence and trust with the employees, customers and suppliers of Company and
its affiliates. Consequently, Executive agrees that it is reasonable
and necessary for the protection of the goodwill, intellectual property, trade
secrets, designs, proprietary information and business of Company that Executive
make the covenants contained herein. Accordingly, Executive agrees that, during
the Term and for the period of one (1) year immediately thereafter he shall not,
directly or indirectly:
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5.1.1. own,
operate, manage or be employed by or affiliated with any person or entity
headquartered within or with a management office in the United States that
engages in any business then being engaged or planned to be engaged in by
Company or its subsidiaries or affiliates; or
5.1.2. attempt
in any manner to solicit from any customer or supplier business of the type
performed for or by Company or persuade any customer or supplier of Company to
cease to do business or to reduce the amount of business which any such customer
or supplier has customarily done or contemplates doing with Company, whether or
not the relationship between Company and such customer or supplier was
originally established in whole or in part through his efforts; or
5.1.3. employ as
an employee or retain as a consultant, or persuade or attempt to persuade any
person who is as of the termination of this Agreement or at any time during the
preceding year was, or in the six (6) months following such termination becomes,
an employee of or exclusive consultant to Company to leave Company or to become
employed as an employee or retained as a consultant by anyone other than
Company.
5.1.4. As used
in this Section 5, the term: “customer” and “supplier” shall mean any person or
entity that is a customer or supplier of Company at the end of the Term, or at
any time during the preceding year was, or in the six (6) months following such
termination becomes, a customer or supplier of Company, or if Executive’s
employment shall not have terminated, at the time of the alleged prohibited
conduct.
5.2. Executive
agrees that he will not at any time (whether during the Term or after
termination of this Agreement for any reason), disclose to anyone, any
confidential information or trade secret of Company or utilize such
confidential information or trade secret for his own benefit, or for the benefit
of third parties, and all memoranda or other documents compiled by him or made
available to him during the Term pertaining to the business of Company shall be the property of
Company and shall be delivered to Company on the date this Agreement terminates
or at any other time, as reasonable, upon request. The term “confidential
information or trade secret” does not include any information which (i) becomes
generally available to the public other than by breach of this provision, or
(ii) is required to be disclosed by law or legal process.
5.3. If
Executive commits a breach or threatens to commit a breach of any of the
provisions of Sections 5.1 or 5.2 hereof, Company shall have the right to have
the provisions of this Agreement specifically enforced by any court having
jurisdiction without being required to post bond or other security and without
having to prove the inadequacy of any other available remedies, it being
acknowledged and agreed that any such breach will cause irreparable injury to
Company and that money damages will not provide an adequate remedy to Company.
In addition, Company may take all such other actions and seek such other
remedies available to it in law or in equity and shall be entitled to such
damages as it can show it has sustained by reason of such breach.
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5.3.1. The
parties acknowledge that the type and periods of restriction imposed in the
provisions of Sections 5.1 and 5.2 hereof are fair and reasonable and are
reasonably required for the protection of Company and the goodwill associated
with the business of Company; and that the time, scope, geographic area and
other provisions of this Section 5 have been specifically negotiated by
sophisticated parties and accordingly it is reasonable that the restrictive
covenants set forth herein are not limited by narrow geographic area. If any of
the covenants in Sections 5.1 or 5.2 hereof, or any part thereof, is hereafter
construed to be invalid or unenforceable, it is the intention of the parties
that the same shall not affect the remainder of the covenant or covenants, which
shall be given full effect, without regard to the invalid portions. If any of
the covenants contained in Sections 5.1 or 5.2, or any part thereof, is held to
be unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court making such determination should
reduce the duration and/or areas of such provision such that, in its reduced
form, said provision shall then be enforceable. The parties intend to and hereby
confer jurisdiction to enforce the covenants contained in Sections 5.1 and 5.2
upon the courts of any jurisdiction within the geographical scope of such
covenants. In the event that the courts of any one or more of such jurisdictions
shall hold such covenants wholly unenforceable by reason of the breadth of such
time, scope or geographic area, it is the intention of the parties hereto that
such determination not bar or in any way affect Company's right to the relief
provided above in the courts of any other jurisdiction within the geographical
scope of such covenants, as to breaches of such covenants in such other
respective jurisdictions, the above covenants as they relate to each
jurisdiction being, for this purpose, severable into diverse and independent
covenants.
6. Intellectual
Property. During the Term, Executive will disclose to Company all ideas,
inventions, advertising campaigns, designs, logos, slogans, processes,
operations, products or improvements which may be patentable or copyrightable or
subject to any trade or service xxxx or name, and business plans developed by
him during such period, either individually or in collaboration with others,
which relate to the business of Company (“Intellectual
Property”). Executive agrees that such Intellectual Property will be the
sole property of Company and that he will at Company's request and cost do
whatever is reasonably necessary to secure the rights thereto by patent,
copyright, trademark or otherwise to Company.
7. Return of Company
Property. Promptly upon the request of Company, Executive
shall deliver to Company (and will not keep in Executive’s possession or deliver
to anyone else) all Company property.
8. Governing
Law. This Agreement shall be governed by and interpreted under
the laws of the State of Delaware applicable to contracts entered into and
wholly performed in Pennsylvania, without regard to the conflicts of law
provisions of Delaware or any other jurisdiction.
9. Notices. All
notices and other communications under this Agreement or in connection with this
Agreement shall be in writing and shall be deemed to have been given and
received upon the earlier of (a) actual receipt by the intended recipient, (b)
one (1) business day after deposit of the notice with an
internationally-recognized overnight courier, properly addressed and charges
prepaid or (c) upon transmission if sent by fax to the proper facsimile number
with a confirming copy sent by a nationally-recognized overnight courier to the
intended recipient as follows:
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If to Company, to:
Xxxxx
Xxxxx
Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000
Attention: Board
of Directors
Facsimile: 978.874.2748
With a
copy to:
Xxxxxx
Xxxxxxxx LLP
000
Xxxxxx Xxxx
000
Xxxxxxx Xxxx
Xxxxxx,
Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X.
Xxxxx, Esq.
Facsimile: 000.000.0000
If to Executive, to:
Xxxxx X.
Xxxxxxx
000
Xxxxxxx Xxxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Facsimile:
772.492.0545
or to
such other names, addresses and/or facsimile numbers as Company or Executive, as
the case may be, shall designate by notice to the other person in the manner
specified in this Section.
10. Severability. The
provisions of this Agreement are severable, and if any provision or portion
thereof is held to be invalid or unenforceable for any reason, such provision or
portion thereof shall be modified or adjusted by a court or other tribunal
exercising its equitable powers to the extent necessary to cure such invalidity
or unenforceability, and all other covenants and provisions shall remain valid
and enforceable.
11. Miscellaneous. This
Agreement: (a) constitutes the final, exclusive and fully integrated agreement
between Company and Executive with respect to its subject matter and supersedes
any prior and contemporaneous agreements and understandings between Company and
Executive relating to the subject matter of this Agreement; (b) may be modified
only in a writing duly executed by the party against whom enforcement is sought;
and (c) shall be binding upon and inure to the benefit of and be enforceable by
the respective successors and assigns of the parties to this
Agreement. This Agreement may be assigned by Company at any
time. Executive acknowledges that its duties and responsibilities are
of a personal nature and, as such, this Agreement and Executive’s rights and
responsibilities may not be assigned or delegated in whole or in part, without
the prior written consent of Company. This Agreement may be signed in
counterparts, including by facsimile or other electronic means, which when taken
together, shall be one and the same document. The headings of the
Sections of this Agreement are for convenience of reference only.
[signature
page follows]
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IN
WITNESS WHEREOF, the undersigned have executed this Executive Consulting
Agreement as of the Effective Date.
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COMPANY:
TECHPRECISION
CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Title:
Chief Financial Officer
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CONSULTANT:
/s/ XXXXX X.
XXXXXXX
XXXXX
X. XXXXXXX
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