EXHIBIT 10.36
EMPLOYMENT AGREEMENT
Agreement dated this 4th day of January, 1999, by and between Able Telcom
Holding Corp. with its address at 0000 Xxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000, its subsidiary MFS Transportation Systems, Inc. with its address
at 000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xx. Xxxxxx, XX 00000, ("Employer"), and G.
Xxxxx Xxxxxx, with his address at 0000 Xxxxxx Xxxx Xxxx., Xxxxx Xxxxx, Xxxxxxx
00000, ("Employee").
WITNESSETH:
WHEREAS, Employer is engaged in telephone and telecommunication installation and
service, as well as system development, project management, and installation of
conventional and electronic toll and traffic management systems; and
WHEREAS, Employer desires to employ Employee as President and CEO of its MFS
Transportation Systems, Inc. subsidiary; and
WHEREAS, Employer desires to avail itself of the services of the Employee in
order that his knowledge and ability may be utilized in the conduct and
development of the business and affairs of the Employer; and
WHEREAS, Employee has evidenced his willingness to enter into an employment
agreement with respect to his employment by Employer, pursuant to the terms and
conditions hereinafter set forth.
NOW THEREFORE, in consideration of the foregoing and mutual promises and
covenants herein contained, it is agreed as follows:
1. EMPLOYMENT: DUTIES
Employee shall devote his full time to the performance of services as President
and CEO of its MFS Transportation Systems, Inc. subsidiary, subject at all times
to the Board of Directors and CEO of Able Telcom Holding Corp. Employee shall be
in charge of all of the business of MFS Transportation Systems, Inc. and MFS
Transtech, Inc. and the performance of such services and duties as the Board of
Directors and/or CEO of Able Telcom Holding Corp. shall determine.
2. FULL TIME EMPLOYMENT
Employee hereby accepts employment by Employer upon the terms and conditions
contained herein and agrees that during the term of this Agreement, Employee
shall devote all of his business time, attention and energies to the business of
Employer.
3. TERM
Employee's employment hereunder shall be for a term of two (2) years to commence
on the date hereof.
In the event employee voluntarily resigns, Employer's obligations are limited to
payment of the base salary through the last day of Employee's employment. Stock
options are exercisable per the stock option plan provisions and no acceleration
of the un-vested shares will be made to employee.
4. TERMINATION FOR CAUSE
Not withstanding any other provision of this Agreement, Employee may be
terminated on ninety (90) days notice without further benefits or compensation
for any of the following reasons: a) misuse, misappropriation or embezzlement of
any Employer property or funds; b) conviction of a felony; or c) breach of any
material provision of this Agreement.
5. TERMINATION WITHOUT CAUSE
Termination without cause can only be effected by an action of the CEO of Able
Telcom Holding Corp. and /or its Board of Directors representing a majority of
the members approving such termination. In the event of a termination without
cause, the Employee shall be paid the remainder of the base salary due under the
one year contract period, with a minimum of one hundred and eighty (180) days
severance pay (base salary only). Stock options shall automatically become
vested and exercisable.
6. COMPENSATION
As full compensation for the performance of his duties on behalf of Employer,
Employee shall be compensated as follows:
i) BASE SALARY Employer during the term hereof shall pay Employee a base
salary at the rate of One Hundred and Fifty Thousand dollars($150,000)
per annum, payable no less frequently than monthly installments.
ii) REIMBURSEMENT OF EXPENSES. Employer shall reimburse Employee for the
expenses incurred by Employee in connection with his duties hereunder,
including travel and entertainment, such reimbursement to be made in
accordance with regular Employer policy and upon presentation by
Employee of the details of, and vouchers for, such expenses.
iii) SALARY ADJUSTMENTS Prior to the expiration of each contract year, the
CEO and/or the Board of Directors of Able Telcom Holding Corp. shall
review the Employee's salary and benefits and if appropriate, at their
sole discretion, shall increase the salary and benefits for the next
succeeding year.
IV) PERFORMANCE BONUS Employee shall be eligible to receive a performance
bonus at the expiration of each contract year. The amount of such bonus
to be determined by the Employee's success in the performance of his
duties as determined by the CEO and Board of Directors of Able Telcom
Holding Corp. and shall be awarded at their sole discretion.
7. OPTIONS
Subject to the approval of the Board of Directors of Able Telcom Holding Corp.,
Employee will receive an option to acquire Forty Thousand (40,000) shares of
Able Telcom Holding Corp., stock at a price equal to the opening price as quoted
by NASDAQ on the date of grant by the Board. This option shall become fully
vested as follows: 20,000 immediately, 10,000 on December 31,1999, and 10,000 on
December 31, 2000. This option will automatically vest if Able Telcom Holding
Corp. is sold and/or if there is a change in control of Able Telcom Holding
Corp. as of the date of such change in control, if such date is prior to January
1, 2000, if such change in control or sale results from a transaction not
formally under consideration by the Board, as of the date of this agreement.
8. FRINGE BENEFITS
During the term of this Agreement, Employer shall provide at its sole expense to
the Employee hospitalization, major medical, life insurance and other fringe
benefits on the same terms and conditions as it shall afford other management
employees of equivalent rank.
9. UPON TERMINATION OF EMPLOYMENT
Subsequent to the termination of the employment of Employee, Employee will not
interfere with or disrupt or attempt to disrupt Employer's business relationship
with its customers or suppliers. Further, Employee will not solicit any of the
employees of Employer to leave the Employer for a period of one (1) year
following such termination. In addition, Employee agrees that all information
received from principals and agents of Employer will be held in total confidence
for a period of one (1) year following termination of employment, to the extent
such information is proprietary and not generally available to the public or
sources outside the Employer's Company.
10. INCAPACITY
In the event that Employee shall become incapacitated or unable to perform the
duties of his employment hereunder for the balance of the current one year
period (hereinafter referred to as the "Disability Period"), the employee,
nevertheless, shall be entitled to full salary and other payments not including
bonus, provided for hereunder during the Disability Period; provided, however,
that any amount paid to the Employee under any Employer provided disability
insurance will be subtracted from payments to be made to the Employee by the
Employer. In the event that the Employee is incapacitated for a period which
exceeds the Disability Period, Employee shall not be entitled to receive the
compensation and other payments provided for hereunder for any time period of
this contract. Employee shall be considered to be incapacitated when he is
unable to perform the normal duties required of him hereunder. Two (2) licensed
medical doctors, chosen by the Employer, shall determine incapacity.
11. NOTICES
All notices hereunder shall be in writing and shall be sent to the parties at
the respective addresses above set forth. All notices shall be delivered in
person or given by registered or certified mail, postage prepaid, and shall be
deemed to have been given when delivered in person or deposited in the United
States mail. Either party may designate any other address to which notice shall
be given, by giving notice to the other such change of address in the manner
herein provided. Employer, or its management, directors, representatives,
employees or affiliates will not make any public announcements or provide any
other information related to Employee, directly or indirectly, without the
express written consent of Employee.
12. SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be declared, by a court of competent
jurisdiction, to be invalid, illegal or incapable of being enforced in whole or
in part, the remaining conditions and provisions or portions thereof shall
nevertheless remain in full force and effect and enforceable to the extent they
are valid, legal and enforceable, and no provision shall be deemed dependent
upon any other covenant or provision unless so expressed herein.
13. ENTIRE AGREEMENT: MODIFICATION
All prior agreements (prior to January 1, 1999) with respect to the subject
matter hereof between the parties are hereby cancelled. This Agreement contains
the entire agreement of the parties relating to the subject matter hereof, and
the parties hereto have made no agreements, representations or warranties
relating to the subject matter of this Agreement which are not set forth herein.
No modification of this Agreement shall be valid unless made in writing and
signed by the parties hereto.
14. BINDING EFFECT
The rights, benefits, duties and obligations under this Agreement shall inure
to, and be binding upon, the Employer, its successors and assigns, and upon the
Employee and his legal representatives, heirs and legatees. This Agreement
constitutes a personal service agreement, and the performance of the Employee's
obligations hereunder may not be transferred or assigned by the Employee.
15. NON-WAIVER
The failure of either party to insist upon the strict performance of any of the
terms, conditions and provisions of this Agreement shall not be construed as a
waiver or relinquishment of this Agreement shall not be construed as a waiver or
relinquishment of future compliance therewith, and said terms, conditions and
provisions shall remain in full force and effect. No waiver of any term or
condition of this Agreement on the part of either party shall be effective for
any purpose whatsoever unless such waiver is in writing and signed by such
party.
16. GOVERNING LAW
This Agreement shall be construed and governed by the laws of the State of
Florida.
17. ARBITRATION
Any controversy or claim arising under, out of, or in connection with this
Agreement or any breach or claimed breach hereof, shall be settled by
arbitration before the American Arbitration Association, in Palm Beach County,
Florida, before a panel of three arbitrators, in accordance with its rules, and
judgment upon any award rendered may be entered in any court having jurisdiction
thereof.
18. CONTRACT
This contract supersedes all previous contracts between Employer and Employee.
19. HEADINGS
The headings of the paragraphs listed herein are inserted for convenience and
shall not affect any interpretation of the Agreement.
IN WITNESS WHEREOF the parties have set their hands and seals this 4th day of
January, 1999.
Witness: Employer: Able Telcom Holding Corp.
By: __________________________ By: /s/ XXXXX X. XXX, XX.
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Xxxxx X. Xxx, Xx.
Chief Executive Officer
Witness: Employee:
By: __________________________ By: /s/ G. XXXXX XXXXXX
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G. Xxxxx Xxxxxx
