Exhibit 10.1
EMPLOYEE CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is entered into this 20th
day of August 2001 is by and amongst DUCT Construction Utility & Technologies,
Inc. (the "Company") and Xxxxxxx Xxxx (The "Employee").
WHEREAS, Employee has served as the Company's Chief
Executive Officer since the acquisition by the Company of HK
Utility Construction, Inc.; and
WHEREAS, the Company desires to continue to engage Employee to continue
to serve as its chief executive officer and oversee corporate operations at both
the Board and officer level; and
WHEREAS, due to cash flow problems, the Company has not
been able to adequately compensate the Employee;
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration receipt whereof is hereby
acknowledged it is agreed.
1. TERM OF EMPLOYMENT
The Company hereby confirms the employment of the Employee as its chief
executive officer until December 31, 2001. It may be extended for an additional
one year term on the mutual consent of the parties. However, this Agreement may
be terminated earlier as hereinafter provided.
2. DUTIES OF EMPLOYEE
The Employee shall do and perform all services, acts, or things
necessary or advisable to serve as its chief executive officer including but not
limited to meeting with investment bankers, identifying potential acquisition
candidates, conducting
necessary due diligence to the extent not delegated to others assist in
establishing company policies and strategic planning, identify potential
acquisition candidates, assist in financial planning and capital formation and
such other matters as may be mutually acceptable to the Company and the
Employee. However, Employee shall at all times be subject to the direction of
the policies established by the Board of Directors of the Company. Employee is
expected to work as much time as may be necessary to carry out Employee's job
responsibilities but in no event less than 40 hours per week.
The Employee agrees that to the best of Employee's ability and
experience, Employee will at all times loyally and conscientiously perform all
of the duties and obligations required of Employee either expressly or
implicitly by the terms of this Agreement, and devote as much time and efforts
to the Company's business as needed.
During the term of this Agreement, or such shorter period of time
should this Agreement be terminated prior to its stated termination date,
Employee shall not invest in, carry on, engage in or become involved whether as
an employee, agent, officer, director, stockholder (excluding ownership of not
more than five percent (5%) of the outstanding shares of a publicly-held
corporation which ownership does not involve managerial or operational
responsibility), manager, partner, joint venturer, participant, consultant or
otherwise) in any business enterprise which competes directly with the business
of the Company. The restrictions set forth in this paragraph shall apply for any
employment, work, operations or investment in the United States. The parties
agree that this restriction is reasonable in terms of scope and duration.
Any breach of this non-compete provision may cause irrevocable harm to
the Company and as a result the parties agrees that injunctive relief may be
sought as a remedy in the case of a breach and the parties hereto expressly
waive any requirements to post bond in the event that injunctive relief is
sought.
3. COMPENSATION OF EMPLOYEE
(a) As compensation for services to be rendered hereunder, the Employee
shall receive a monthly compensation of $20,000.
(b) As compensation for services previously rendered, the Company shall
issue to the Employee a total of 70,000 shares of the Company's common stock.
Said shares to be registered on form S-8.
(c) Employee shall be offered health insurance coverage at no cost to
the Employee. Employee shall also be entitled to participate in such employee
benefit programs as offered by the Company to other Employees. Employee shall be
entitled to an annual paid vacation of two weeks per year plus five personal
days per year. Any vacation time not used may be accrued to the following year
if the Employee remains employed with the Company.
(d) The Employee shall also be reimbursed for out-of-pocket expenses
incurred by the Employee in the performance of his job responsibilities.
However, any reimbursable expenses in excess of $1,000 must first be approved by
the Company.
4. TERMINATION. This Agreement shall continue until December 31, 2001
and shall continue thereafter for one year terms unless terminated sooner as
hereinafter provided. The Company shall have the right to terminate this
Agreement for good cause or by reason of Employee's disability on thirty (30)
days prior written notice to Employee. If such termination is for good cause or
by reason of Employee's disability, a notice of termination specifying the
nature of the good cause or disability, as the case may be shall be given
Employee. If the Employee is terminated for any other reason than good cause,
the Company shall be obligated to pay Employee a severance payment of the lesser
of $30,000 or the remaining sums due under the agreement.
5. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
(a) DISABILITY shall mean Employee's inability caused by
mental or physical illness to satisfactory perform his obligations and duties
hereunder for a consecutive period in excess of 120 days during the term of this
Agreement or for a period of 180 out of a total of 360 work days
(b) GOOD CAUSE shall mean any breach by Employee of Employee's
obligations hereunder, habitual neglect of duties, continued incapacity or
inability to perform the obligations set forth in this Agreement or the
conviction of any felony.
6. NOTICE. All notices or other communications which are required or
which may be given pursuant to the terms of this Agreement shall be in writing
and shall be delivered personally (and receipted for) or by registered or
certified mail, postage prepaid, return receipt requested. Any such notice shall
be deemed effective when personally delivered or five (5) days following its
deposit in the United States mail as specified.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes any
prior agreements or understandings respecting such subject matter. Employee
shall not assign any right hereunder, nor delegate any obligation, and any
purported assignment or delegation by Employee shall be void. Any modification
of this Agreement must be in writing and executed by both parties to this
Agreement.
8. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns.
9. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio. In the
event of any dispute arising under this Agreement, the prevailing party shall be
entitled to recover all costs including reasonable attorneys' fees.
10. SEVERABILITY. If any provision of this Agreement is for any reason
determined to be invalid or unenforceable, such determination shall not affect
the validity or enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above.
DUCT Utility Construction & Employee
Technologies, Inc.
/s/C.Xxxxx Xxxxxx /s/Xxxxxx Xxxx
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BY: C. Xxxxx Xxxxxx, pres Xxxxxxx Xxxx
