Consulting Agreement, dated March 5, 2025, by and between Reece A. Kurtenbach and Daktronics, Inc
Exhibit 10.2
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this Agreement) is made and effective as of March 5, 2025 (the Effective Date) by and between Daktronics, Inc., a South Dakota corporation, (the Company), and Reece A. Kurtenbach (Consultant). The Company and Consultant are referred to in this Agreement collectively as the Parties and each individually as a Party.
WHEREAS, Consultant and the Company have entered into a Separation and Release Agreement effective as of the Effective Date (the Separation Agreement);
WHEREAS, the Company desires to retain Consultant as an independent contractor to provide the services described herein for the period provided in this Agreement; and
WHEREAS, Consultant is willing to serve as an independent contractor and to provide such services, subject to the terms and conditions hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants herein contained, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Engagement of Consultant; Term. The Company agrees to engage Consultant commencing as of the Effective Date, as an independent contractor, and Consultant agrees to render consulting services from the Effective Date through October 31, 2025 (such date, the Expiration Date), unless earlier terminated as set forth herein. Notwithstanding the foregoing, the Company shall have the right to terminate this Agreement at any time, in its sole discretion, and may direct Consultant to perform no further Services (as defined below) after delivery of such notice of termination. This Agreement may be extended beyond the Expiration Date only if such extension is memorialized by a written agreement signed by both Parties. The period between the Effective Date and the expiration or termination of Consultants services hereunder is referred to as the Term.
2. Services. During the Term, Consultant shall provide such consulting services as may be reasonably requested of Consultant from time to time by the Companys Chief Data and Analytics Officer (the CDAO), and/or such other person as may be designated by the CDAO from time to time (the Designee) specifically assisting the Company with business object modeling, including data modeling in support of complex system implementations such as configure price quote and enterprise performance management and concept modeling in support of complex business initiatives such as success through teams (the Services). Such Services shall be provided on a weekly average of approximately 20 hours. Consultant shall liaise directly with the CDAO or any such Designee from time to time regarding the status of, and other aspects related to, the Services. Consultant shall devote his time and efforts as may be required to perform the Services in a proper and expeditious manner and shall perform the Services in accordance with all applicable law and regulations. The Company has determined that Consultant is uniquely qualified to perform the Services, and Consultant agrees that, during the Term, he will not provide any services to any other person or entity that otherwise prevent or limit his ability to perform the Services. Consultant shall coordinate the furnishing of Services in such a way as to generally conform to the business schedules of the Company.
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3. Fees and Expenses.
(a) The Parties acknowledge and agree that the payments and benefits set forth in Section 2 of the Separation Agreement constitute the full compensation to Consultant for providing the Services during the Term and that the Consultant is not entitled to any additional compensation for the Services.
(b) The Company shall reimburse Consultant for Consultants reasonable out-of-pocket business-related expenses actually incurred in the performance of Consultants duties under this Agreement so long as Consultant timely submits all documentation for such expenses, as required by Company policy in effect from time to time. Any such reimbursement of expenses shall be made by the Company upon or as soon as practicable following receipt of such documentation (but in any event not later than the close of Consultants taxable year following the taxable year in which the expense is incurred by Consultant). In no event shall any reimbursement be made to Consultant for any expenses incurred after the date of termination of this Agreement.
(c) Consultant acknowledges and agrees he shall not be entitled to any additional payment or benefits from the Company for the Services other than as provided for in this Section 3. Consultant acknowledges and agrees that (i) the Company is not required to withhold federal, state or foreign income, gross receipts, or similar taxes from payments to Consultant hereunder or to otherwise comply with any state, federal or foreign law concerning the collection of income, gross receipts, or similar taxes at the source of payment of wages, and (ii) the Company is not required under the Federal Unemployment Tax Act or the Federal Insurance Contribution Act to pay or withhold taxes for unemployment compensation or for social security on behalf of Consultant with respect to payments made by the Company hereunder. The Company shall issue Consultant an IRS Form 1099-NEC, and Consultant shall be solely responsible for all federal, state, and local taxes in connection with the payments made by the Company hereunder. Consultant shall be solely responsible for making all applicable tax filings and remittances with respect to amounts paid to Consultant pursuant to this Agreement and shall indemnify and hold harmless the Company and its affiliates, and the foregoing entities respective representatives for all claims, damages, costs and liabilities arising from Consultants failure to do so.
4. Independent Contractor. The Parties acknowledge and agree that Consultant is an independent contractor of the Company. In no event shall Consultant be deemed to be an employee of the Company or any of its affiliates. Consultant acknowledges and agrees that, as a non-employee, Consultant is not eligible for any benefits sponsored by the Company or any of its affiliates, except as expressly provided for in this Agreement. Consultant shall not at any time communicate or represent to any third party, or cause or knowingly permit any third-party to assume, that Consultant is an employee or agent of the Company or any of its affiliates or, unless otherwise authorized in writing by an executive officer of the Company, have any authority to bind the Company or its affiliates or act on behalf of the Company or its affiliates. It is not the purpose or intention of this Agreement or the Parties to create, and the same shall not be construed as creating, any partnership, partnership relation, joint venture, agency, or employment relationship.
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5. Termination of Services. The Services shall terminate immediately upon the Expiration Date, unless terminated earlier as provided herein.
6. Intellectual Property. All results and proceeds of the Services performed under this Agreement (collectively, the Deliverables) and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice in the course of performing the Services or other work performed in connection with the Services or this Agreement (collectively, and including the Deliverables, Work Product), and all patents, copyrights, trademarks (together with the goodwill symbolized thereby), trade secrets, know-how, and other confidential or proprietary information, and other intellectual property rights (collectively Intellectual Property Rights) therein, shall be owned exclusively by the Company. Consultant acknowledges and agrees that any and all Work Product that may qualify as work made for hire as defined in the Copyright Act of 1976 (17 U.S.C. § 101) is hereby deemed work made for hire for the Company and all copyrights therein shall automatically and immediately vest in the Company. To the extent that any Work Product does not constitute work made for hire, Consultant hereby irrevocably assigns to the Company and its successors and assigns, for no additional consideration, Consultants entire right, title, and interest in and to such Work Product and all Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof. To the extent any copyrights are assigned under this Section 6, Consultant hereby irrevocably waives in favor of the Company, to the extent permitted by applicable law, any and all claims Consultant may now or hereafter have in any jurisdiction to all rights of paternity or attribution, integrity, disclosure, and withdrawal and any other rights that may be known as moral rights in relation to all Work Product to which the assigned copyrights apply. As between Consultant and the Company, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any documents, specifications, data, know-how, methodologies, software, and other materials provided to Consultant by the Company (Company Materials), and all Intellectual Property Rights therein. Consultant has no right or license to reproduce or use any Company Materials except solely during the Term to the extent necessary to perform the Services. All other rights in and to the Company Materials are expressly reserved by the Company. Consultant has no right or license to use the Companys trademarks, service marks, trade names, logos, symbols, or brand names.
7. Confidential Information and Restrictive Covenants.
(a) Consultant acknowledges that Consultant will have access to information that is treated as confidential, privileged, and proprietary by the Company and its affiliates, including, without limitation, the existence and terms of this Agreement, information subject to the legal privilege, trade secrets, technology, and information pertaining to business operations and strategies of the Company and its affiliates, in each case whether spoken, written, printed, electronic, or in any other form or medium (collectively, the Confidential Information). Any Confidential Information that Consultant accesses or develops in connection with the Services, including but not limited to any Work Product, shall be subject to the terms and conditions of this clause. Consultant agrees, at all times, both during the Term and after termination of this Agreement, to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without
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the prior written consent of the Company in each instance, and not to use any Confidential Information for any purpose except as required in the performance of the Services. Consultant shall notify the Company immediately in the event Consultant becomes aware of any loss or disclosure of any Confidential Information. Consultant acknowledges that, in connection with the Services, Consultant shall have access to information that is subject to legal privilege, including the attorney-client privilege, attorney work product privilege, and litigation privilege, and Consultant agrees that, such privilege shall belong to the Company and its affiliates, and Consultant shall, at all times, maintain the confidentiality of any legally privileged information. Confidential Information shall not include information that: (i) is or becomes generally available to the public other than through Consultants breach of this Agreement; or (ii) is communicated to Consultant by a third party that had no confidentiality obligations with respect to such information.
(b) Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law, or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation or order. Consultant agrees to provide written notice of any such order to the Company within two (2) days of receiving such order, but in any event sufficiently in advance of making any disclosure to permit the Company to contest the order or seek confidentiality protections, as determined in the Companys sole discretion.
(c) Notwithstanding any other provision of this Agreement, Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that: (i) is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If Consultant files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Consultant may disclose the Companys trade secrets to Consultants attorney and use the trade secret information in the court proceeding if Consultant: (i) file any document containing the trade secret under seal; and (ii) does not disclose the trade secret, except pursuant to court order. Nothing in this Agreement shall prohibit or restrict Consultant from lawfully: (i) initiating communications directly with, cooperating with, providing information to, causing information to be provided to, or otherwise assisting in an investigation by, any governmental agency (including the Department of Justice, Department of Labor, Securities and Exchange Commission, any Inspector General, and any other governmental agency, commission or regulatory authority) regarding a possible violation of any law or (ii) making disclosures that are protected under the whistleblower provisions of applicable law. Nothing herein will require any individual or entity to disclose to any Party that is has made such a disclosure.
(d) Consultant agrees and covenants that Consultant will not at any time make, publish or communicate to any person or in any public forum any defamatory or disparaging remarks, comments or statements concerning the Company or its affiliates or their businesses, or any of their managers, directors, officers or agents. Company agrees and covenants that Company will direct its officers and directors to not at any time make, publish or communicate to any person or in any public forum any defamatory or disparaging remarks, comments or statements concerning Consultant. This Section 7(d) does not, in any way, restrict or impede either party from making truthful statements in response to legal process, required governmental testimony or
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filings, or administrative or arbitral proceedings (including, without limitation, depositions in connection with such proceedings) or exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or a governmental agency, or otherwise making any statement or engaging in any activity permitted by Section 3(b) of the Separation Agreement.
(e) During the Prohibited Period, Consultant shall not, without the prior written approval of the Board, directly or indirectly, for Consultant or on behalf of or in conjunction with any other person or entity of any nature:
i. | engage in or participate within the Market Area in competition with the Company or any if its direct or indirect subsidiaries (the Company Group) in any aspect of the Business, which prohibition shall prevent Consultant from directly or indirectly: (A) owning, managing, operating, being an officer or director of, or lending to, a business that competes with any member of the Company Group in the Market Area, or (B) joining, becoming an employee or consultant of, or otherwise being affiliated with, any person or entity engaged in, or planning to engage in, the Business in the Market Area in competition, or anticipated competition, with any member of the Company Group, in each case (with respect to this clause (B)) in any capacity (with respect to this clause (B)) in which Consultants duties or responsibilities: (x) are the same as or similar to the duties or responsibilities that Consultant had on behalf of any member of the Company Group, or (y) involve direct or indirect oversight of, or responsibility for, duties or responsibilities that are the same or similar to the duties or responsibilities that Consultant had on behalf of any member of the Company Group; |
ii. | appropriate any Business Opportunity of, or relating to, the Company Group located in the Market Area of which Consultant becomes aware during the period of Consultants employment by or other service relationship with a member of the Company Group; |
iii. | solicit, canvass, approach, encourage, entice or induce any customer or supplier of any member of the Company Group located in the Market Area with whom or which Consultant had contact on behalf of any member of the Company Group to cease or lessen such customers or suppliers business with the Company Group; or |
iv. | solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the Company Group located in the Market Area to terminate his, her or its employment or engagement with any member of the Company Group; provided, however, that (a) this prohibition shall not apply to general solicitations, in any medium, not specifically targeted at the employees or contractors of any member of the Company Group, and (b) Consultant shall not hire any employee or contractor of any member of the Company Group who responds to such a general solicitation. |
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(f) The Parties agree that the Companys sole remedy for a breach of the covenants set forth in this Section 7 by the Consultant will be cessation of any future payments or provision of the benefits set forth in Section 2 of the Separation Agreement. Before exercising this remedy, the Company must provide Consultant with written notice of any claimed breach of covenant and allow Consultant no less than 30 days to cure any claimed breach before taking any action to pursue the remedy.
(g) The covenants in this Section 7, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (or portion thereof) shall not affect the provisions of any other covenant (or portion thereof). Moreover, in the event any arbitrator or court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent which such arbitrator or court deems reasonable, and this Agreement shall thereby be reformed.
(h) The following terms shall have the following meanings:
i. | Business shall mean the design, fabrication, installation, and operation of large audio visual communication systems for Sports, Commercial, and Transportation. |
ii. | Business Opportunity shall mean any commercial, investment or other business opportunity relating to the Business. |
iii. | Market Area shall mean: (A) during that portion of the Prohibited Period that exists during the Term, any country or territory where any member of the Company Group has locations or customers or prospective customers; and (B) during that portion of the Prohibited Period that exists following the Expiration Date, (1) any county in which the Company or another member of the Company Group for which Consultant performed services conducted Business as of the Expiration Date or in the twelve (12) months prior to the Expiration Date or (2) any other area that is within a five-hundred (500)-mile radius of a location where any member of the Company Group is engaged in the Business (including any customer location at which any member of the Company Group performs material operations) or at which any member of the Company Group otherwise owns property or interests related to the Business for which Consultant had material responsibility during the twelve (12) months prior to the Expiration Date. |
iv. | Prohibited Period shall mean the 24 (twenty-four) month period beginning on the Effective Date. |
8. Consultants Representations and Warranties. Consultant represents and warrants to the Company that Consultant has the right to enter into this Agreement, to grant the rights granted herein and to perform fully all of Consultants obligations in this Agreement, and entering into this Agreement with the Company and performance of the Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant
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is subject. Consultant shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and Consultant shall devote sufficient resources to ensure that the Services are performed in a timely and reliable manner. Consultant agrees to perform the Services in compliance with all applicable federal, state, and local laws and regulations, including by maintaining all licenses, permits, and registrations required to perform the Services. Consultant expressly promises, acknowledges, and agrees that, in no event will Consultant violate any obligation that Consultant has to any prior employer or other third party during the Term or in the course of performing any Services, and in no event will Consultant use or disclose any confidential information belonging to any prior employer or other third party in the course of performing Services. Consultant promises, represents, and agrees that Consultant shall not introduce documents or other materials containing confidential information of any prior employer or other third party to the premises or property (including computers and computer systems) of the Company or any of its affiliates.
9. Applicable Law; Venue. This Agreement is entered into under, and shall be governed for all purposes by, the laws of the state of South Dakota without reference to the principles of conflicts of law thereof. Any dispute, controversy or claim between Consultant on the one hand, and the Company or any of its affiliates, on the other hand, arising out of or relating to this Agreement shall be resolved in state or federal court, as applicable, located in Sioux Falls, South Dakota. THE PARTIES EXPRESSLY, KNOWINGLY, AND VOLUNTARILY WAIVE THEIR RIGHTS TO A JURY TRIAL.
10. Entire Agreement; Amendments. This Agreement constitutes the entire and final agreement between the Parties with respect to the subject matters hereof. Subject to Section 11 below, this Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by the Parties.
11. Severability; Reformation. If any provision of this Agreement (or part thereof) as applied to either Party or to any circumstances shall be adjudged by a tribunal of competent jurisdiction to be void or unenforceable, the same shall in no way affect any other provision (or part thereof) of this Agreement or the validity or enforceability of this Agreement.
12. Waiver. Any waiver of a provision of this Agreement shall be effective only if it is in a writing signed by the Party entitled to enforce such term and against which such waiver is to be asserted. No delay or omission on the part of either Party in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement nor shall any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under this Agreement.
13. Assignment; Successors. This Agreement may not be assigned by either Party without the written consent of the other Party. Subject to the preceding sentence, this Agreement shall apply to, be binding in all respects upon and inure to the benefit of the Companys successors and assigns.
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14. Notices. All notices, requests, demands, claims and other communications permitted or required to be given hereunder must be in writing and shall be deemed duly given and received (a) if personally delivered, when so delivered, (b) if mailed, three (3) business days following the date deposited in the U.S. mail, certified or registered mail, return receipt requested, (c) if sent by e-mail, once received by the recipients e-mail server, or (d) if sent through an overnight delivery service in circumstances to which such service guarantees next day delivery, the day following being so sent:
If to the Company, addressed to:
Daktronics
Attn: Carla Gatzke
201 Daktronics Drive
Brookings, South Dakota 57006
If to Consultant, addressed to:
Reece A. Kurtenbach at the most recent address in the Companys records.
15. Certain Construction Rules. The Section headings contained in this Agreement are for convenience of reference only and shall in no way define, limit, extend or describe the scope or intent of any provisions of this Agreement. As used in this Agreement, unless otherwise provided to the contrary, (a) all references to days, months or years shall be deemed references to calendar days, months or years and (b) any reference to a Section shall be deemed to refer to a section of this Agreement. The words hereof, herein, and hereunder and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specifically provided for herein, the term or shall not be deemed to be exclusive, and the term including shall not be deemed to limit the language preceding such term. Neither this Agreement nor any uncertainty or ambiguity herein shall be construed against any Party, whether under any rule of construction or otherwise. This Agreement has been reviewed by each of the Parties and shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the Parties.
16. Execution of Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of this Agreement and of signature pages by .pdf or e-mail transmission shall constitute effective execution and delivery of this Agreement as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by facsimile or e-mail shall be deemed to be their original signatures for all purposes. Electronic signature via DocuSign will also be deemed to be an original signature.
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17. Code Section 409A. Notwithstanding anything to the contrary contained herein, this Agreement and the payments hereunder are intended to satisfy or be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations and other guidance thereunder (collectively, Section 409A). Accordingly, all provisions herein, or incorporated by reference herein, shall be construed and interpreted to satisfy or be exempt from the requirements of Section 409A. Further, for purposes of Section 409A, each payment of compensation under this Agreement shall be treated as a separate payment of compensation.
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IN WITNESS WHEREOF, the Parties have duly executed this Consulting Agreement, effective for all purposes as provided above.
DAKTRONICS, INC. | ||
By: | ||
Name: | ||
Title: | ||
Date: | ||
CONSULTANT | ||
By: | ||
Reece A. Kurtenbach | ||
Date: |