CONSULTING AGREEMENT
Consulting Agreement ("Agreement"), dated as of January 1, 2004, by and
between American Technical Ceramics Corp., a Delaware corporation (the
"Company"), and Northport Systems, Inc., a New York corporation (the
"Consultant").
WHEREAS, the Consultant has been providing consulting services to the
Company pursuant to a Consulting Agreement, dated as of November 2, 2000,
between the Company and Stuart P. Litt ("Litt"), which agreement was assigned to
the Consultant on or about March 2, 2001 and expired on December 31, 2003 (the
"Prior Agreement"); and
WHEREAS, the Company desires again to retain the consulting services of
the Consultant, and the Consultant desires to provide such consulting services
to the Company, on the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Engagement; Duties.
(a) The Company hereby engages the Consultant as a consultant to the
Company during the Term (as hereinafter defined) to provide such advisory and
other consulting services as the Company shall from time to time reasonably
request or require, and the Consultant hereby accepts such engagement, all upon
and subject to the terms and conditions hereinafter set forth. It is expected
that Consultant's duties shall include consulting relating to (i) marketing;
(ii) organizational and financial strategy; (iii) acquisitions and joint
ventures; (iv) analyses of operations and management processes; (v) key
personnel matters; and (vi) such other matters about which the Company may
reasonably request.
(b) All consulting services to be performed by the Consultant hereunder
shall be performed by Litt. Litt shall be available to the Company to provide
such consulting services as the Company may request, provided that he shall not
be required to make himself available for more than 15 full days during any
calendar quarter during the Term (based upon eight working hours per day) unless
the Company and the Consultant mutually agree to a greater number of full days.
Unless the Company agrees otherwise, such consulting services shall be provided
at the Company's headquarters in Huntington Station, New York, the Company's
facilities in Jacksonville, Florida, or at the Consultant's place of business.
However, Litt shall be available to travel as the Company's needs for his
services require (subject to reimbursement of the Consultant's expenses with
respect thereto as provided in Section 4(b) hereof).
(c) Neither the Consultant nor Litt shall not be prohibited from
undertaking or engaging in additional consultancies or other business
activities, provided that (i) the consultancies or business activities in which
the Consultant or Litt, as the case may be, so engages do not result in a
violation of Sections 5, 6 or 7 of this Agreement, and (ii) the performance by
the Consultant or Litt, as the case may be, of its or his duties in connection
with
such additional consultancies or business activities will not materially
impair the Consultant's or Litt's ability to perform its or his obligations
under this Agreement.
2. Nature of Relationship. In the performance of their respective
obligations or the provision of services under this Agreement, the Consultant
and Litt shall be independent contractors and not agents or employees of the
Company. As an independent contractor, neither the Consultant nor Litt shall
have, nor shall it or he hold himself out as having, any right, power or
authority to create any contract or obligation, either express or implied, on
behalf of, in the name of, or binding upon, the Company or to pledge the
Company's credit, or to extend credit in the Company's name, without the prior
written consent of the Company.
3. Term; Termination.
(a) The term of the Consultant's engagement under this Agreement shall
commence on January 1, 2004 (the "Effective Date") and shall terminate on the
earliest of (i) December 31, 2004, (ii) the death of Litt, or (iii) such
disability of Litt which results in an inability to perform his consulting
duties hereunder; provided that the Company shall have the right to extend the
term for an additional period of up to one year, provided that it gives notice
of its election to do so to the Consultant on or before November 1, 2004. The
term of the Consultant's engagement under this Agreement, as it may be so
extended, is referred to herein as the "Term."
(b) This Agreement may be terminated by either party prior to the
expiration of the Term (i) immediately upon a material breach of this Agreement
by the other party, or (ii) upon 60 days' prior written notice to the other
party.
(c) Upon expiration of the Term or the earlier termination of this
Agreement, all rights, remedies, duties and obligations of the parties hereunder
shall immediately cease, except (i) for those rights, remedies, duties and
obligations which survive the termination of this Agreement as specifically set
forth herein, (ii) for those rights and remedies to which the either party may
be entitled as a result of any breach of this Agreement by the other, and (iii)
the Consultant shall remain entitled to all then accrued but unpaid amounts due
hereunder from the Company.
4. Compensation and Benefits.
(a) During the Term, in consideration of the services to be rendered by
the Consultant hereunder, and subject to the terms hereof, the Company shall pay
the Consultant in respect of each calendar quarter ending during the Term the
sum of $2,000 for each full day during such calendar quarter that Litt provides
consulting services pursuant to this Agreement (such amount to be payable on or
before the 30th day after the end of the calendar quarter to which such payment
relates). The Consultant shall provide the Company within 10 days after the end
of each calendar quarter ending during the Term with a statement reflecting the
days during such quarter that Litt provided consulting services, a description
of such services and the number of hours during each such day that such services
were performed. For the purposes of calculating the number of days worked in a
quarter, (i) hours worked shall include travel to and from any of the Company's
facilities or to any other situs that the Company requests that Litt perform
services if and only if the number of hours worked on behalf of the Company
during a day in
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which he travels on Company business in less than eight, and provided that in no
event shall the number of hours worked on any such day, including travel time,
exceed eight; and (ii) the number of days worked in the quarter shall be
determined by dividing the actual number of hours worked by Litt in the quarter
by eight and then rounding upward to the nearest whole number. By way of
example, and not by way of limitation, (x) if Litt provides nine hours of
consulting services (excluding travel time) on a day in which he travels to
and/or from one of the Company's facilities to perform services for the Company,
the Consultant shall not be given credit for any hours worked in respect of
travel time; (y) if Litt travels four hours to and/or from one of the Company's
facilities on a day in which he works six hours on behalf of the Company, the
Consultant shall be given credit for two hours worked in respect of travel time;
and (z) if Litt works 27 hours during a quarter, the Consultant shall be
credited with having worked four days during the quarter.
(b) During the Term, the Company shall reimburse the Consultant for
Litt's reasonable and necessary business expenses incurred in providing his
consulting services as directed by the Company hereunder, to the extent the
Consultant shall document such expenses with receipts or other evidence to the
satisfaction of Victor Insetta or Kathleen Kelly or the successors to their
respective positions.
(c) The Consultant shall be responsible for all income or other taxes
based on the payment made to it hereunder. Accordingly, the Company shall not
make any tax withholding, FICA or similar payments from the fees or other
payments payable hereunder, except as may be required by law.
5. Confidentiality and Non-Disclosure. During the Term, and at all times
thereafter, the Consultant and Litt shall treat as confidential any proprietary,
confidential or secret information relating to the business or interests of the
Company or any future parent, subsidiary, affiliate or customer of the Company,
including, but without limitation, the organizational structure, operations,
business plans, or technical projects of the Company or any future parent,
subsidiary, affiliate or customer of the Company, and any research datum or
result, invention, trade secret, customer list, process, or other work product
developed by or for the Company or any future parent, subsidiary, affiliate or
customer of the Company, whether on the premises of the Company or elsewhere
("Confidential Information"). During the Term, and at all times thereafter,
neither the Consultant nor Litt shall disclose, utilize, or make accessible in
any manner or in any form any Confidential Information other than in connection
with performing the services required of it or him under this Agreement, without
the prior written consent of the Company.
6. Intellectual Property, Etc.
(a) Each of the Consultant and Litt hereby agrees that any and all
information, intellectual property, inventions and discoveries, whether or not
patentable, that it or he conceives and/or creates during the Term which are a
direct or indirect result of services performed hereunder, shall be work for
hire and shall be the sole and exclusive property of the Company. Each of the
Consultant and Litt hereby assigns to the Company any and all right, title and
interest which it or he has or may acquire in the same. Each of the Consultant
and Litt further agrees that it or he will promptly execute any and all
applications, assignments or other
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instruments which an officer of the Company or the Board of Directors of the
Company shall deem necessary or useful in order to apply for and obtain Letters
Patent in the United States and all foreign countries for said information,
inventions and discoveries and in order to assign and convey to the Company the
sole and exclusive right, title and interest in and to said information,
inventions, discoveries, patent applications, and patents thereon. The Company
will bear the cost of preparation of all such patent applications and
assignments, and the cost of prosecution of all such applications in the United
States Patent Office and in the patent offices of foreign countries.
(b) All documents, records, apparatus, equipment and other physical
property furnished to the Consultant or Litt by the Company or produced by the
Consultant or Litt or others in connection with his consulting shall be and
remain the sole property of the Company. The Consultant or Litt shall return and
deliver such property to the Company as and when requested by the Company.
7. Non-Competition; Non-Solicitation.
(a) Each of the Consultant and Litt agrees that it or he will not
during the Term and, subject to Section 7(b) hereof, for a period of six months
thereafter, engage in, or otherwise directly or indirectly be employed by, or
act as a consultant, advisor or lender to, or be a director, officer, employee,
stockholder, owner, or partner of, any other business or organization which
competes with the Company or any parent, subsidiary, or affiliate of the
Company. Notwithstanding anything contained herein to the contrary, the
provisions of this Section 7(a) will not be deemed breached merely because the
Consultant or Litt owns not more than 1% of the outstanding common stock of a
corporation, if, at the time of its acquisition by the Consultant or Litt, such
stock is listed on a national securities exchange, is reported on NASDAQ, or is
regularly traded in the over-the-counter market by a member of a national
securities exchange.
(b) In the event that the average monthly payments to the Consultant
during the six month period immediately preceding the expiration of the Term or
earlier termination of this Agreement equal or exceed $6,000 per month, the
period during which the Consultant and Litt shall be prohibited from competing
with the Company or any parent subsidiary or affiliate of the Company shall be
extended for six months. If the average monthly payments during such six month
period are less than $6,000 per month, the Company shall have the option to
extend the non-compete period for the additional six months by paying to the
Consultant, in a lump sum, an amount equal to $36,000 less the amount actually
paid to the Consultant pursuant to this Agreement during such six month period.
The Company may exercise such option by giving the Consultant written notice
thereof and by making the required payment within 10 business days of the
expiration of the Term or earlier termination of this Agreement, as the case may
be.
(c) Each of the Consultant and Litt agrees that for a period of two
years from the termination of this Agreement it or he will not, directly or
indirectly, employ or solicit the employment or engagement by others of any
employees of, or consultants hired by, the Company or any future parent,
subsidiary or affiliate of the Company, within a period of one year after such
person is no longer employed or retained by the Company or any future parent,
subsidiary or affiliate of the Company.
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8. Survival; Scope of Agreement. Each of the Consultant and Litt
acknowledges and agrees that the restrictions contained in Sections 5,6 and 7
hereof are a condition of the Consultant's engagement by the Company and shall
survive termination of this Agreement. Each of the Consultant and Litt further
acknowledges and agrees that such restrictions are reasonable in view of the
nature of the business in which the Company is engaged and Litt's knowledge of
the Company's business, and that any breach of its or his obligations under
Section 5,6 or 7 hereof will cause the Company irreparable harm for which the
Company will have no adequate remedy at law. As a result, the Company shall be
entitled to the issuance by a court of competent jurisdiction of an injunction,
restraining order, or other equitable relief in favor of itself restraining the
Consultant or Litt from committing or continuing any such violation. Any right
to obtain an injunction, restraining order, or other equitable relief hereunder
will not be deemed a waiver of any right to assert any other remedy the Company
may have under this Agreement or otherwise at law or in equity.
9. Assignment.
(a) This Agreement is a personal contract calling for the provision of
unique services by Litt on behalf of the Consultant, and the Consultant's rights
and obligations hereunder may not be assigned or transferred without the prior
written consent of the Company. In the event of any attempted assignment or
transfer or rights hereunder by the Consultant contrary to the provisions
hereof, the Company shall have no further liability hereunder.
(b) The Company may assign or transfer this Agreement to (i) a
successor entity in the event of a merger, consolidation, or transfer or sale of
substantially all of the assets of the Company, or (ii) any entity controlling,
under common control with or controlled by the Company. In the case of any such
assignment or transfer by the Company, the rights and obligations of this
Agreement shall be binding upon and inure to the benefit of such successors and
assigns of the Company.
10. Notices. Any notice or other communication required or permitted to be
given pursuant to this Agreement shall be in writing and shall be deemed to have
been duly given or made if (i) sent by registered or certified mail, return
receipt requested, (ii) hand delivered, (iii) sent by prepaid overnight courier
service, or (iv) sent by facsimile and confirmed by mail, to the parties at the
following addresses (or at such other addresses as shall be specified by the
parties by like notice):
To the Company: American Technical Ceramics Corp.
One Norden Lane
Huntington Station, New York 11746
Attention: Kathleen M. Kelly,
Vice President - Administration
Facsimile: (631) 622-4610
To the Consultant or Litt: Northport Systems, Inc.
Attention: Stuart P. Litt
215 Scudder Avenue
Northport, New York 11768
Facsimile: (631) 262-0118
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Each notice or other communication shall be deemed to have been given
or made on the date of actual receipt, except that a facsimile sent after normal
business hours shall be deemed received on the next day that recipient's office
is open which is not a Saturday, Sunday or holiday.
11. Severability. In the event any of the provisions of this Agreement is
determined to be invalid, prohibited or unenforceable by a court or other body
of competent jurisdiction, this Agreement shall be construed as if such invalid,
prohibited or unenforceable provision has been more narrowly drawn so as not to
be invalid, prohibited or unenforceable. Notwithstanding the foregoing sentence,
in the event that any provision contained in this Agreement should be determined
to be invalid, prohibited or unenforceable, the validity, legality and
enforceability of the remaining provisions contained in this Agreement shall be
unaffected and shall continue in full force and effect.
12. Governing Law. This Agreement and all performance under this Agreement
shall be governed by the laws of the State of New York.
13. Waiver; Modification. No waiver or modification of this Agreement or of
any covenant, condition or limitation contained herein shall be valid or
effective unless it is in writing and duly executed by the Consultant and the
Company (and, if applicable, Litt). No failure or delay by either the Company or
the Consultant in exercising any right or remedy under this Agreement will waive
any provision of this Agreement, nor will any single or partial exercise by
either the Company or the Consultant of any right or remedy under this Agreement
preclude either of them from otherwise or further exercising the rights or
remedies contained herein or granted by any applicable law.
14. Entire Agreement. The terms and provisions of this Agreement shall
constitute the entire agreement by the Company and the Consultant with respect
to the subject matter hereof and shall supersede any and all prior agreements or
understandings between the parties, whether written or oral. Without limiting
the generality of the foregoing, all obligations of the parties under the Prior
Agreement, other than those which expressly survive termination of the Prior
Agreement, have terminated and are of no further force or effect.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute a duplicate original of this
Agreement but together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Consultant have executed this
Agreement as of the day and year first above written.
AMERICAN TECHNICAL CERAMICS CORP.
By: /S/ VICTOR INSETTA
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Victor Insetta,
President and Chief Executive Officer
NORTHPORT SYSTEMS, INC.
/S/ STUART P. LITT
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Stuart P. Litt, President
AGREED TO WITH RESPECT TO SECTIONS
1(c), 2, 5, 6, 7 and 8
/S/ STUART P. LITT
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Stuart P. Litt
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