CONSULTING AGREEMENT
EXHIBIT
10.20
CONSULTING AGREEMENT (this “Agreement”), made and
entered into as of the 13th day of
May, 2010, by and between SSGI, Inc., a Florida corporation (the “Company”), and Xxxxx
X. Xxxxx, Xx., an individual resident of the State of Florida (“Consultant”).
WITNESSETH:
WHEREAS, the Company desires
to retain Consultant to render consulting and advisory services for the Company
on the terms and conditions set forth in this Agreement, and Consultant desires
to be retained by the Company on such terms and conditions.
NOW THEREFORE, in
consideration of the premises, the respective covenants and commitments of the
Company and Consultant set forth in this Agreement, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company and Consultant agree as follows:
1. Retention of Consultant;
Services to be Performed. The Company hereby retains Consultant to render
such business, management, advisory and transition services (including
attendance at management and Board of Director meetings) as the Company may
request from time to time, up to a maximum of (a) 80 hours per month during the
first one hundred and twenty (120) days of the term of this Agreement (the
“Transition
Period”), and (b) 40 hours per month after the Transition Period; provided, however, that, during
the Transition Period, Consultant’s services shall be limited to making and
receiving phone calls, attending meetings locally, and providing general
counseling to the Company with respect to the existing customer, vender and
other relationships of B & M Construction Co., Inc., a Florida corporation
(“B & M”),
and the overall integration of B & M with and into the
Company. Consultant hereby accepts such engagement and agrees to
perform such services for the Company upon the terms and conditions set forth in
this Agreement. During the term of this Agreement, Consultant shall
devote such of his business time, attention, skill and energy to the business of
the Company as is necessary to adequately perform his services hereunder. During
the term of this Agreement, Consultant shall report to the President of the
Company.
2. Term. Unless
terminated at an earlier date in accordance with Section 6 of this agreement,
the term of this Agreement shall commence on the date of this Agreement and
shall continue for a continuous term of eighteen (18) months
thereafter. After the initial 18-month term of this Agreement, this
Agreement shall continue on a month-to-month basis until either party notifies
the other party of such party’s desire not to so continue the term of this
Agreement.
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3. Compensation. As
compensation in full for Consultant’s services hereunder, the Company shall pay
to Consultant a consulting fee at a rate of $400 per hour of service rendered to
the Company (subject to a maximum of $3,200 per day, regardless of how many
hours of service provided during that day). The consulting fee shall be payable
to Consultant monthly in arrears upon presentment to the Company of a monthly
invoice specifying (a) the number of hours of services provided by Consultant
during such month, (b) the days on which such services were provided, and (c) a
brief description of the services provided on each day of such
month. Each such invoice shall be paid within ten (10) days of the
Company’s receipt thereof. Notwithstanding the foregoing, during the
Transition Period, Consultant shall provide services hereunder without
compensation or other remuneration and shall not invoice the Company for such
services provided.
4. Expenses. Consultant
shall be reimbursed by the Company for any out-of-pocket expenses that are
reasonably incurred by Consultant in performing his duties under this Agreement,
subject to the presentment by Consultant to the Company of appropriate receipts
and expense reports.
5. Protection of Trade Secrets,
Know-How and/or Other Confidential Information of the
Company.
(a) Confidential
Information. Except as permitted or directed by the Company’s Board of
Directors, during the term of this Agreement or at any time thereafter
Consultant shall not divulge, furnish or make accessible to anyone or use in any
way (other than in the ordinary course of the business of the Company) any
confidential or secret knowledge or information of the Company which Consultant
has acquired or become acquainted with or will acquire or become acquainted with
prior to the termination of the period of his engagement by the Company, whether
developed by himself or by others, concerning any trade secrets, confidential or
secret designs, processes, formulae, plans, devices or material (whether or not
patented or patentable) directly or indirectly useful in any aspect of the
business of the Company, any customer or supplier lists of the Company, any
confidential or secret development or research work of the Company, or any other
confidential information or secret aspects of the business of the Company.
Consultant acknowledges that the above-described knowledge or information
constitutes a unique and valuable asset of the Company acquired at great time
and expense by the Company and its predecessors, and that any disclosure or
other use of such knowledge or information other than for the sole benefit of
the Company would be wrongful and would cause irreparable harm to the Company.
Both during and after the term of this Agreement, Consultant will refrain from
any acts or omissions that would reduce the value of such knowledge or
information to the Company. The foregoing obligations of confidentiality,
however, shall not apply to any knowledge or information which is now published
or which subsequently becomes generally publicly known in the form in which it
was obtained from the Company, other than as a direct or indirect result of the
breach of this Agreement by Consultant.
(b) Copyrightable
Material. All right, title, and interest in all copyrightable material
which Consultant shall conceive or originate, either individually or jointly
with others, and which arise out of the performance of this Agreement, will be
the property of the Company and are by this Agreement assigned to the Company
along with ownership of any and all copyrights in the copyrightable
material. Consultant agrees to execute all papers and perform all
other acts necessary to assist the Company to obtain and register copyrights on
such materials in any and all countries. Where applicable, works of
authorship created by Consultant for the Company in performing his
responsibilities under this Agreement shall be considered “works made for hire”
as defined in the U.S. Copyright Act.
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(c) Know-How and Trade
Secrets. All know-how and trade secret information conceived or
originated by Consultant which arises out of the performance of his obligations
or responsibilities under this Agreement or any related material or information
shall be the property of the Company, and all rights therein are by this
agreement assigned to the Company.
6. Termination.
Notwithstanding any contrary provision contained elsewhere in this Agreement,
this Agreement and the rights and obligations of the Company and Consultant
hereunder (other than the rights and obligations of the parties under Section 5)
shall be terminated upon the occurrence of any of the following
events:
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(a)
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Immediately
in the event of Consultant’s death;
or
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(b)
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Immediately
in the event that Consultant becomes disabled so that he is unable to
render his normal services under this Agreement for a continuous period of
thirty (30) days.
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In the event this Agreement is
terminated pursuant to this Section 6 prior to the expiration of the term
hereof, Consultant shall be entitled to receive his consulting fees earned
through the date of termination, but all other rights to receive consulting fees
or other remuneration hereunder shall terminate on such date.
7. Miscellaneous.
(a) Assignment. This
Agreement and the rights and obligations of the parties hereunder shall not be
assignable, in whole or in part, by either party without the prior written
consent of the other party.
(b) Governing Law; Exclusive Jurisdiction and
Venue. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF FLORIDA AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WITHIN SAID STATE. Each of the Company and Consultant (i) hereby
irrevocably submits to the exclusive jurisdiction of the United States District
Court for the Southern District of Florida and the courts of the State of
Florida located in Palm Beach County, Florida, for the purposes of any suit,
action or proceeding arising out of or relating to this Agreement, and (ii)
hereby waives, and agrees not to assert in any such suit, action or proceeding,
any claim that he or it is not personally subject to the jurisdiction of any
such court, that the suit, action or proceeding is brought in an inconvenient
forum or that the venue of the suit, action or proceeding is
improper.
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(c) Entire Agreement.
This Agreement evidences the entire understanding and agreement of the parties
hereto relative to the consulting arrangement between Consultant and the Company
and the other matters discussed herein. This Agreement supersedes any and all
other agreements and understandings, whether written or oral, relative to the
matters discussed herein. This Agreement may only be amended by a
written document signed by both Consultant and the Company.
(d) Injunctive Relief.
Consultant acknowledges that it would be difficult to fully compensate the
Company for damages resulting from any breach by Consultant of the provisions of
Section 5 of this Agreement. Accordingly, in the event of any actual
or threatened breach of such provisions, the Company shall (in addition to any
other remedies that it may have) be entitled to temporary and/or permanent
injunctive relief to enforce such provisions, and such relief may be granted
without the necessity of proving actual damages.
(e) Severability. To the
extent any provision of this Agreement shall be determined to be invalid or
unenforceable, such provision shall be deleted from this Agreement, and the
validity and enforceability of the remainder of such provision and of this
Agreement shall be unaffected. In furtherance of and not in
limitation of the foregoing, Consultant expressly agrees that should the
duration of or geographical extent of, or business activities covered by, any
provision of this Agreement be in excess of that which is valid or enforceable
under applicable law, then such provision shall be construed to cover only that
duration, extent or activities that may validly or enforceably be covered.
Consultant acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement shall be construed in a manner that renders its
provisions valid and enforceable to the maximum extent (not exceeding its
express terms) possible under applicable law.
(f) Status of Consultant.
In rendering services pursuant to this Agreement, Consultant shall be acting as
an independent contractor and not as an employee or agent of the
Company. As an independent contractor, Consultant shall have no
authority, express or implied, to commit or obligate the Company in any manner
whatsoever, except as specifically authorized from time to time in writing by an
authorized representative of the Company, which authorization may be general or
specific. Nothing contained in this Agreement shall be construed or applied to
create a partnership. Consultant shall be responsible for the payment of all
federal, state or local taxes payable with respect to all amounts paid to
Consultant under this Agreement; provided, however, that if the
Company is determined to be liable for collection and/or remittance of any such
taxes, Consultant shall immediately reimburse the Company for all such payments
made by the Company.
[Remainder
of page intentionally left blank; signature page to
follow.]
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IN WITNESS WHEREOF, the
Company and Consultant have executed this Agreement as of the date set forth in
the first paragraph.
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx, Chief
Executive Officer
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/s/ Xxxxx X. Xxxxx, Xx.
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Xxxxx
X. Xxxxx,
Xx.
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