EXHIBIT 10.1
CONSULTING
AGREEMENT
This CONSULTING AGREEMENT (this “
Agreement ”), dated as of May 8, 2008 is between
Micro Component Technology, Inc., a Minnesota corporation (the
“ Company ”), and LMWH Management Partners LLC,
a California limited liability company (the “
Consultant ”).
W I T N E S S E T H
:
WHEREAS, the Company desires to obtain the
services of the Consultant on the terms and conditions set forth in
this Agreement; and
WHEREAS, the Consultant is willing to perform
such services on such terms and conditions.
NOW, THEREFORE, in consideration of these
premises and the mutual agreements hereinafter set forth, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Services . The Consultant
shall, while at all times reporting to the Chairman of the Board of
Directors of the Company (the “ Board ”),
provide such business consulting and other services as detailed on
Exhibit A hereto and as the Board may, from time to
time, designate for the Company and/or its subsidiaries and other
affiliates (collectively, the “ Company Group
”). The Consultant’s services shall be provided by John
Moon, or other persons approved by the Company. The
Consultant shall not perform services for Laurus Master Fund, Ltd.
or its affiliates during the period it is performing services for
the Company without prior written approval by the Company’s
Board of Directors. The Consultant shall devote such time and
attention as necessary to properly perform its duties and
responsibilities hereunder. The Company hereby acknowledges
and recognizes that the Consultant has other business interests and
may continue to have such business interests concurrently with the
performance of this Agreement.
2. Independent Contractor .
It is the intention and agreement of the parties that the
Consultant shall be retained by the Company pursuant to this
Agreement, and shall perform its duties and all services hereunder,
as an independent contractor. Nothing herein shall be deemed
to create a partnership, joint venture or employment relationship
between the Consultant and the Company.
3. Consultant of Company .
The Consultant, in cooperation with the Chairman of the Board, may
serve as an agent for the Company and may execute documents on
behalf of and otherwise bind the Company in connection with the
provision of the consulting services provided by the
Consultant. The Consultant shall not execute or bind the
Company to any material obligation without prior approval by the
Company’s Board of Directors.
4. Expenses of the Company .
During the Term (as defined below), the Company shall reimburse the
Consultant for all reasonable and necessary out-of-pocket business
expenses incurred by the Consultant in connection with the
performance of the Consultant’s services
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hereunder. The Consultant shall submit a
quarterly budget of estimated expenses to the Company for approval
prior to the beginning of each quarter. To be eligible for
reimbursement, expenses must be consistent with the budget and
Company expense policies, or approved in advance by the
Company’s Chairman. Such reimbursement shall be made by the
Company monthly, after receipt of an invoice from the Consultant
accompanied by receipts or other satisfactory documentation of such
expenses.
5. Consulting Fee . The
Company shall pay to the Consultant and the Consultant shall
accept, as compensation for the services rendered to the Company
hereunder: (i) a five-year non-qualified option to purchase an
aggregate of 3,000,000 shares of Common Stock, of the Company
exercisable at a price equal to the closing sale price of the
Common Stock on the date the Option is approved by the
Company’s Compensation Committee (the “ Option
”), and which shall vest in accordance with Exhibit A,
and (ii) an annual consulting fee (the “ Consulting
Fee ”) of $180,000 USD for each year, payable in cash,
monthly in arrears on the first business day of each month.
John Moon will allocate 50% of his business time (the
“Allocated Time ”) to the Company, and if the
Allocated Time becomes significantly more or less than 50% of his
business time, the Company and Consultant will renegotiate the
Consulting Fee accordingly. The Option shall be documented in a
separate Stock Option Agreement.
6. Term . The term of this
Agreement (the “ Initial Term ”) shall commence
on the date hereof and shall continue in full force and effect
until December 31, 2010, unless extended by mutual agreement
of the parties (the Initial Term, as so extended, is herein
referred to as the “ Term ”).
Notwithstanding the foregoing provisions of this Section, the
Company or the Consultant may terminate the Consultant’s
engagement at any time during the Term in accordance with
Section 8.
7. Termination of Engagement
. The engagement of the Consultant hereunder and this
Agreement may be terminated by either party, with or without cause,
at any time during the Term upon 90 days prior written notice to
the other party. Except as set forth in Section 0, the
termination of the Consultant pursuant to this Section shall
not result in any penalty or fee payable to the Consultant.
The Option may be exercised for one year after termination to the
extent vested on termination.
8. Action upon Termination
.
(A) The Company shall,
forthwith upon any termination of this Agreement, pay to the
Consultant all amounts payable to the Consultant hereunder to and
including the day immediately preceding the effective date of
termination of this Agreement.
(B) The Consultant shall,
forthwith upon any termination of this Agreement, deliver to the
Board and where applicable transfer into the name of the Company
(or such person as the Board may direct in writing) all property,
documents, books and records of the Company in the name of or in
the custody of the Consultant.
9. Confidential Material .
The Consultant shall, during the Term and for a period of three
years thereafter, not disclose confidential material (as defined
below) and shall take all reasonable
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measures to maintain the confidentiality of the
confidential material, except as required in the performance of the
Consultant’s duties and responsibilities under this
Agreement. The Consultant agrees that all confidential
material, together with all notes and records of the Consultant
relating thereto, and all copies or facsimiles thereof in the
possession or control of the Consultant (whether made by the
foregoing or other means) are the exclusive property of the
Company. The Consultant shall not in any manner use any
confidential material, or any other property of the Company, in any
way which is or could reasonably be expected to be materially
detrimental to the Company. Promptly upon the request of the
Company, the Consultant shall deliver to the Board, or a person
designated by the Board, or destroy all confidential material in
the possession of the Consultant, provided that the Consultant may
retain a file copy thereof.
For the purposes hereof, the term “
confidential material ” shall mean all information
and/or material acquired in the course of the engagement of the
Consultant hereunder concerning the projects, activities, business
or affairs (financial or otherwise) of the Company or any other
member of the Company Group, as the case may be, or any of the
customers or suppliers of the Company or any other member of the
Company Group, whether or not provided by or on behalf of the
Company, including, without limitation, information concerning the
past, present or future customers, suppliers, business, proprietary
matters, trade secrets, products or projects, sales and other
financial information and development projects or marketing plans
of the Company or any of the other members of the Company Group;
provided, however, that the term “confidential
material” shall not include information which
(i) becomes generally available to the public other than as a
result of a disclosure by the Consultant (but only after it enters
the public domain), (ii) was available to the Consultant on a
non confidential basis prior to the engagement of the Consultant
hereunder, (iii) becomes available to the Consultant on a non
confidential basis from a source other than the Company or any
other member of the Company Group or any of their respective
agents, customers, suppliers or clients; provided that the
Consultant does not know that such source is bound by a
confidentiality obligation to the Company or any other member of
the Company Group or any of such agents, customers, suppliers or
clients, or (iv) information which is independently developed
by the Consultant without use of confidential information of the
Company or any of its affiliates.
In the event that the Consultant is required in
the context of any civil or criminal proceeding or regulatory
action or investigation, by oral questions, interrogatories,
requests for information or documents, subpoena, civil
investigative demand or similar process, to disclose any
confidential material, the Consultant shall provide the Company
with prompt notice thereof, including copies of all relevant
documents and information, so that the Company
