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EXHIBIT 10.49
EMPLOYMENT AGREEMENT
Agreement dated this 21st day of February, 2000, by and between Able Telcom
Holding Corp., with its address at 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, XX 00000, ("Employer"), and XXXXXX X. XXXXXX ("Employee") of 0000
Xxxxxxx Xxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS, Employer is engaged in the telecommunication development, installation
and service, business and manufacture, sale and installation of highway signs
and traffic control products, and
WHEREAS, Employer desires to employ Employee as the Director of Compliance for
Operations; 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 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 agree as follows:
1. EMPLOYMENT: DUTIES
Employer hereby employs the Employee as the Director of Compliance for
Operations. Subject at all times to the direction of the Chief Executive
Officer, the Employee shall be in charge of the overall business operations of
Employer and of such other services and duties as the Chief Executive Officer
shall determine. However, the duties and responsibilities assigned to the
Employee during the term of employment shall be substantially similar in type
and character to those ordinarily assigned to and performed by persons employed
as high level executives by corporations carrying on a business similar to
Employer.
2. FULL TIME EMPLOYMENT
Employee hereby accepts employment by Employer upon the terms and conditions
contained herein and agree 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 three (3) years to
commence on the date hereof. This Agreement may be extended for an additional
three-year term after the initial term of three (3) years. The Employee/Employer
must give a minimum of ninety days (90) prior written notice to the
Employee/Employer that either party elects to have the Agreement terminate
effective at the end of any term. If Employer violates a major provision of this
Agreement, Employee may terminate this Agreement and receive an amount equal to
the provisions under paragraph 5 of this agreement titled " Termination without
Cause." At the end of the three-year period, the Employee may sign a consulting
agreement. The terms of either an extension of this Agreement or of a consulting
agreement will be negotiated not later than the 30th month of this Agreement.
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4. TERMINATION FOR CAUSE
Notwithstanding 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 by the Board of
Directors with a majority of the members approving such termination. In the
event of termination without cause or a substantial change of job
responsibility, Employee will receive bi-weekly the balance of his yearly base
salary for the remaining term of this agreement plus regular company fringe
benefits. All of said payments will be without any rights of mitigation. In no
case shall Employee receive less than the total compensation for the remaining
term, plus payment of phantom stock and option "in money" values, as severance
pay.
6. COMPENSATION
As full compensation for the performance of his duties on behalf of Employer,
Employee shall be compensated as follows:
a. Base Salary: Employer during the term hereof shall pay
Employee a base salary at the rate of one hundred eighty-two
thousand dollars ($182,000) per annum, payable no less
frequently than in monthly installments. Effective February 1,
2000.
b. Bonus: Employer shall pay Employee promptly after the end of
each fiscal year of Employer during the term of this Agreement
a cash bonus of up to the annual salary if Employer and its
subsidiaries exceed performance and/or other goals reasonably
attainable.
c. 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.
d. Salary Adjustments: Prior to the expiration of each contract
year, the Board of Directors may review Employee's salary and
benefits and, if appropriate, in its sole and absolute
discretion, may increase such salary and benefits for the next
succeeding year.
e. Automobile Allowance: Employer shall provide Employee with an
automobile allowance of five hundred dollars ($500) per month.
7. OPTIONS
Employee will receive, and will be issued when a shareholder approved plan
allows, an option to purchase 125,000 shares of common stock with a strike price
and vesting schedule as listed below:
SHARES STRIKE PRICE PER SHARE VESTING
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25,000 $6.00 February 11, 2000
50,000 8.50 February 11, 2001
50,000 9.50 February 11, 2002
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8. FRINGE BENEFITS
During the term of this Agreement, Employer shall provide at its sole expense to
the Employee and family hospitalization, major medical, life insurance, in
accordance with Able Telcom benefit plans, and other fringe benefits on the same
terms and conditions as it affords other executive management Employees.
9. UPON TERMINATION OF EMPLOYMENT
Subsequent to the termination of the employment of Employee, Employee will not
interfere with, 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 two (2) years
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 two (2) years following termination of employment, to the extent
such information is proprietary and not generally available to the public or
sources outside the 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 three 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 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 after the
end of the Disability Period. In no event shall the disability payment period
exceed the period of this Agreement. Employee shall be considered incapacitated
when the Board of Directors determines that he is unable to perform the normal
duties required of him hereunder. Incapacity shall be determined by two (2)
medical doctors assigned by Employer.
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 any other
information related to Employee, directly or indirectly, without the express
written consent of Employee, except as required by law or regulation
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.
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13. ENTIRE AGREEMENT: MODIFICATION
All prior agreements with respect to the subject matter hereof between the
parties are hereby canceled. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof, supersedes any and all previous
agreements whether written or oral 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 and 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
Georgia.
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 Xxxxxx County,
Georgia, 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. Neither party shall resort to litigation.
18. HEADINGS
The headings of the paragraphs herein are inserted for convenience and shall not
affect any interpretation of this Agreement.
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IN WITNESS WHEREOF the parties have set their hands and seals this __________
day of ___________________, 2000.
Witness: Employer: ABLE TELCOM HOLDING CORP.
By: By:
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C. Xxxxx Xxxxxx
Chairman of the Board
Witness: Employee:
By: By:
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Xxxxxx X. Xxxxxx
