CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), dated as of February
24, 1997, is between ELECTRONIC FAB TECHNOLOGY CORP., a Colorado
corporation ("Parent"), ____________, an Oregon corporation ("Vendor")
and _______ Hewitson ("Initial Consultant").
RECITAL
Parent, Current Merger Corp., an Oregon corporation, and Current
Electronics, Inc., an Oregon corporation, have entered into the
Agreement and Plan of Merger, dated January 15, 1997, pursuant to which
Current Electronics, Inc. was merged with and into Current Merger Corp.
This Agreement is executed and delivered pursuant to Article VIII of
that agreement and sets forth the terms on which Parent engages Vendor
to provide the services of Consultant.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein,
the parties hereto agree as follows:
A. Definitions. The following terms shall have the
following meanings as used in this Agreement:
"Company" means Parent, its successors and assigns, and any
of its present or future subsidiaries, and persons controlled by,
controlling or under common control with it.
"Consultant" means the person approved by Parent that has
been assigned by Vendor to perform the services hereunder.
"Vendor" has the meaning set forth in the opening statement
to this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
of the Securities and Exchange Commission thereunder.
"Expiration Date" has the meaning set forth in Section 5.
"Parent" has the meaning set forth in the opening statement
to this Agreement.
"Participate In" means directly or indirectly, for his own
benefit or for, with or through any other person or entity, own, manage,
operate, control, lend money to or participate in the ownership,
management, operation or control of, or be connected as a director,
officer, employee, partner, consultant, agent, independent contractor or
otherwise with, or acquiesce in the use of his name in.
"Proprietary Information" means information disclosed to or
known or developed by Vendor or Consultant about the Company's plans,
strategies, prospects, products, processes and services, including
information and materials relating to the Company's products,
manufacturing procedures and techniques and information relating to the
Company's research, development, inventions, manufacture, purchasing,
accounting, engineering, marketing, merchandising and selling, but
excluding information that Vendor or Consultant establishes, by
competent proof, (i) was known, other than under an obligation of
confidentiality or binder of secrecy, to Vendor or Consultant prior to
the engagement of Vendor by the Company to provide the services of
Consultant or as a result of Consultant's employment by Current
Electronics, Inc. or Current Electronics (Washington), Inc.; (ii) has
passed into the public domain prior to or after its development by or
for the Company other than through acts or omissions attributable to
Vendor or Consultant; or (iii) was subsequently obtained other than
under an obligation of confidentiality or binder of secrecy from a third
party not acquiring the information under an obligation of
confidentiality from the disclosing party.
A. Representations and Warranties of Vendor.
(a) Vendor is a corporation duly organized and validly
existing under the laws of its state of incorporation, has full
corporate power to own its properties and to carry on its business as
now being conducted and as proposed to be conducted and is duly
qualified to do business and is in good standing in each jurisdiction in
which the failure to do so would have a material adverse effect on
Vendor. Vendor is not in violation of any of the provisions of its
articles of incorporation or bylaws or equivalent organizational
documents.
(b) Vendor has the full corporate power and authority to
enter into this Agreement and take all actions contemplated hereby. The
execution and delivery of this Agreement and all actions contemplated
hereby have been duly authorized by all necessary corporate action on
the part of Vendor. This Agreement has been duly executed and delivered
by Vendor and constitutes the valid and binding obligation of Vendor
enforceable against Vendor in accordance with its terms. The execution
and delivery of this Agreement by Vendor does not, and the actions
contemplated hereby will not, conflict with or violate any provision of
the articles of incorporation or bylaws of the Vendor.
A. Engagement; Duties. The Company and Vendor
hereby agree that Vendor will provide the services of Consultant who
will faithfully and to the best of his ability perform such services and
duties for the Company as the Chief Executive Officer of the Company
reasonably may request. For the Initial Consultant, Consultant's
services and duties for which compensation is to be paid to the Vendor
under Section 4 will not include services deemed by the Company to be
part of his participation or services as a member of the Company's board
of directors. Consultant will devote sufficient working time, attention
and energies to the business of the Company necessary to perform the
services to be provided hereunder, but in any event not in excess of 80%
of the equivalent of being engaged on a full time basis. Neither Vendor
nor Consultant will at any time discredit the Company or any of its
products and services. Vendor and Consultant acknowledge that Vendor
has been engaged by the Company as an independent contractor and that,
as such, Vendor will be responsible for making appropriate filings and
payments to the Internal Revenue Service and state taxing authorities.
Except for involvement in personal investments, provided such
involvement does not require any significant personal services, Vendor
will cause Consultant not to engage, and Consultant agrees not to
engage, in any other business activity or activities that require
significant personal services by Consultant or that, in the judgment of
the Company, may conflict with the proper performance of Vendor's duties
hereunder and Vendor agrees to require Consultant to similarly limit his
or her activities.
A. Compensation; Benefits; Expenses.
(a) As compensation for Consultant's services hereunder,
the Company will pay Vendor $159,300 per year (prorated for partial
years) for each year during the term of this Agreement, payable monthly
in arrears or as the parties hereto may otherwise agree.
(b) The Company will reimburse Vendor for the reasonable
out-of-pocket expenses incurred by Consultant at the request of the
Company in the performance of his duties hereunder and such other
expenses as may be approved by the Company, in each case upon
presentation to the Company of an itemized accounting of such expenses
with reasonable supporting data.
A. Term. This Agreement shall be effective on the
date hereof and, unless earlier terminated in accordance with Section 6,
shall expire five years from the date hereof (the "Expiration Date").
If this Agreement terminates or expires, this Agreement shall forthwith
become void and there shall be no liability or obligation on the part of
the parties hereto, except as otherwise provided herein and except the
provisions of this Section 5 and Sections 7, 8, 9 and 10 will remain in
full force and effect and survive any termination or expiration of this
Agreement.
A. Termination.
(a) If the Initial Consultant or any successor Consultant
dies and a replacement Consultant acceptable to Parent is not appointed
promptly, the Company will pay Vendor the compensation that would
otherwise have been payable to him for the month in which the
Consultant's death occurs, and this Agreement will be deemed terminated
on the last day of such month.
(b) If the Initial Consultant or any successor Consultant
is prevented from performing his duties by reason of illness or
incapacity for the period set forth in Schedule A and a replacement
Consultant acceptable to Parent is not appointed promptly, the Company
may suspend the payment of compensation to Vendor during the period
Consultant is so prevented from performing his duties and may terminate
this Agreement if his condition is determined to be permanent.
(c) The Company may terminate this Agreement at any time,
with cause, by giving written notice of termination to Vendor, with a
copy of such notice to Consultant. For purposes of this Agreement,
"cause" means any one or more of the following: (i) gross negligence or
willful misconduct that is materially injurious to the Company; (ii)
conduct on the part of Consultant or Vendor that would constitute a
felony or other crime of moral turpitude where committed; (iii) material
failure by Consultant to perform assigned services and duties under this
Agreement, which failure continues for at least 30 days after notice in
writing thereof is given by the Company; or (iv) breach or threatened
breach by Consultant or Vendor of any provision of Section 7 or 8.
(d) (i) The Company may terminate this Agreement at any
time, without cause, by giving written notice of termination to
Vendor and Consultant. In connection with any termination by the
Company pursuant to this Section 6(d), except as set forth below
in clauses (ii) of this Section 6(d), the Company will not be
obligated to pay any amount to Vendor other than the amounts
specified in Section 4(a) that have accrued through the date of
termination. The Company will make a termination payment to
Vendor in connection with a termination under this Section 6(d) if
and only if the conditions set forth below in Section 6(d)(ii) are
satisfied, in which event the amount of termination payments will
be determined pursuant to Section 6(d)(ii).
(ii) In order to receive termination payments under
this Section 6(d), Vendor and Consultant must sign releases, in
form and substance reasonably satisfactory to the Company, fully
releasing the Company (and its officers, directors, shareholders,
employees and agents) from any claim or cause of action that
Vendor or Consultant may have against the Company or such other
persons relating in any way to this Agreement or the consulting
relationship of Vendor and Consultant with the Company, through
the date of such releases. If applicable, the releases will be
signed at such times as are reasonably requested by the Company in
order for the releases to be fully effective under state and
federal age discrimination laws and other laws that may impose
similar requirements, and, except to the extent that Consultant
may exercise his rights as a shareholder of the Company or
Consultant's obligations as a director of the Company may
otherwise require, will prohibit Consultant and Vendor from making
any communications or taking other acts that may injure the
business, goodwill or reputation of the Company or its officers,
directors, shareholders, employees or agents. The Company will
then begin making termination payments at such time as any
revocation period set forth in the release will have expired. The
amount of the termination payments payable under this Section 6(d)
will equal the amounts that Vendor would have received had this
Agreement remained in effect through the Expiration Date. Any
payments pursuant to this Section 6(d) will be paid in equal
monthly installments through the Expiration Date.
Non-Disclosure of Information.
(a) Except as specifically permitted by the Company in
writing and as is required for Consultant to perform his services and
duties hereunder, Vendor and Consultant will not, during or prior to two
years after the term of this Agreement, disclose any Proprietary
Information to any person or entity for any purpose or use or permit the
use of any Proprietary Information. In addition, Vendor and Consultant
will not, during and for two years after the termination or expiration
hereof, undertake on behalf of any other person or entity any commercial
project, employment or consultancy that would result in use or
disclosure of Proprietary Information or that would appear to involve
such use or disclosure unless the Company shall have consented in
writing to such undertaking, employment or consultancy. The Company may
require that Vendor and Consultant and any person or entity proposing to
engage Vendor or Consultant in such a capacity provide appropriate
written assurances regarding the avoidance of any such conflict.
(b) Upon the termination or expiration of this Agreement,
Vendor and Consultant will deliver to the Company all notes, letters,
prints, drawings, records, forms, contracts, studies, reports,
appraisals, financial data, lists of names or other customer data, and
any other articles or papers, computer tapes and materials that have
come into their possession by reason of Vendor's engagement by the
Company to provide the services of Consultant or Consultant's prior
employment by the Company's subsidiaries, whether or not prepared by
him, and Vendor and Consultant will not retain memoranda or copies of
any of those items.
(c) Vendor and Consultant acknowledges that Proprietary
Information of the Company is unique and a valuable asset of the
Company, the loss or unauthorized disclosure or use of which would cause
the Company irreparable harm.
A. Covenants Not to Compete or Interfere.
(a) In view of the unique and valuable services of
Consultant which Vendor has been engaged by the Company to provide to
the Company and Consultant's and Vendor's current and future knowledge
of the Company's Proprietary Information, Vendor and Consultant will
not, (i) during the term hereof and (ii) for two years after the
termination or expiration hereof (or, if this Agreement is terminated
under Section 6(d) and Vendor receives termination payments, during the
period such payments are received), Participate In the electronic
contract manufacturing business and any other business in which the
Company is engaged, or has taken material steps to be engaged, at the
time of such termination or expiration. Notwithstanding the foregoing,
Vendor or Consultant will not be deemed to Participate In a business
merely because Vendor or Consultant owns less than 5% of the outstanding
stock of a corporation (measured in voting power or equity), if, at the
time of its acquisition by Vendor or Consultant, such stock is listed on
a national securities exchange or is reported on the Nasdaq National
Market.
(b) During the period specified in Section 8(a) and in no
event less than two years after any termination or expiration of this
Agreement, Vendor and Consultant will not (i) directly or indirectly
cause or attempt to cause any employee of the Company to leave the
employ of the Company; (ii) in any way interfere with the relationship
between the Company and any of its employees, customers or suppliers;
(iii) directly or indirectly hire any employee of the Company to work
for any entity of which Consultant is an officer, director, employee,
consultant, independent contractor or owner of an equity or other
financial interest; or (iv) interfere or attempt to interfere with any
transaction in which the Company was involved during the term of this
Agreement.
(c) If any restriction contained in this Section 8 is
deemed to be invalid, illegal or unenforceable by a court of competent
jurisdiction by reason of its duration, geographical scope or otherwise,
then such provision will be deemed reduced in extent, duration,
geographical scope or otherwise by the minimum reduction necessary to
cause the restriction to be enforceable.
Injunctive Relief. Vendor and Consultant acknowledge that
the breach or threatened breach by Vendor or Consultant of any of the
provisions of Section 7 or 8 would cause the Company irreparable harm.
Upon the breach or threatened breach of any of the provisions of Section
7 or 8, the Company will be entitled to an injunction, without bond,
restraining Vendor or Consultant from committing such breach. This
right shall not be construed to limit the Company's ability to obtain
any other remedies available to it for such breach or threatened breach,
including the recovery of damages.
General Provisions.
(a) Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy. No
failure or delay on the part of any party hereto in the exercise of any
right hereunder shall impair such right or be construed to be a waiver
of, or acquiescence in, any breach of any representation, warranty or
agreement herein, nor shall any single or partial exercise of any such
right preclude other or further exercise thereof or of any other right.
(b) This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado (without regard to the
principles of conflicts of law thereof). Except as otherwise provided
herein, in the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so
as reasonably to effect the intent of the parties hereto. Except as
otherwise provided herein, the parties hereto further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable
provision.
(c) All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by
commercial delivery service, or mailed by registered or certified mail,
return receipt requested, or sent via facsimile, with confirmation of
receipt, to the parties hereto at the following address or at such other
address for a party hereto as shall be specified by notice hereunder:
(i) if to the Company, to:
Electronic Fab Technology Corp.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇ ▇▇▇▇
(ii) If to Vendor:
(iii) If to Consultant:
(d) Except as otherwise provided herein, no party hereto
may assign its rights or delegate its obligations under this Agreement.
The Company may assign its rights and delegate its obligations under
this Agreement to any affiliate of the Company or to any person or
entity that acquires all or substantially all of the business of the
Company whether through merger, purchase of assets, purchase of stock or
otherwise. This Agreement will be binding upon and inure to the benefit
of the parties and their respective legal representatives, heirs, and
permitted successors and assigns.
(e) This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and
oral, among the parties hereto with respect to the subject matter hereof
(f) This Agreement may be amended or modified in writing
by the parties hereto.
(g) When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the
words "without limitation." The Section headings contained in this
Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the
context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms.
(h) The parties hereto acknowledge that they have been
represented by counsel during the negotiation, preparation and execution
of this Agreement and, therefore, waive the application of any law,
regulation, holding or rule of construction providing that ambiguities
in an agreement or other document will be construed against the party
drafting such agreement or document.
(i) This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties hereto and delivered to the other
parties hereto, it being understood that all parties hereto need not
sign the same counterpart.
(j) In the event of any proceeding to enforce this
Agreement, the prevailing party shall be entitled to receive from the
losing party all reasonable costs and expenses, including the reasonable
fees of attorneys, accountants and other experts, incurred by the
prevailing party in investigating and prosecuting (or defending) such
action at trial or upon any appeal.
(k) Any successor Consultant to the Initial Consultant
shall execute a copy of this Agreement agreeing to be bound by the terms
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Consultant's Agreement as of the date first written above.
Parent:
ELECTRONIC FAB TECHNOLOGY CORP.
By: _______________________________
Vendor:
[NAME]
By: ______________________________
Initial Consultant:
_____________________________________