EXHIBIT 10.28
EMPLOYMENT AGREEMENT
Agreement dated this 27th day of April, 1998, by and between Able Telcom Holding
Corp., with its address at 0000 Xxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxx Xxxxx,
Xxxxxxx, 00000, ("Employer"), and Xxxx X. Xxxxx, 0000 Xxxxxxx Xxxxx #X00, Xxxx
Xxxx Xxxxx, Xxxxxxx, 00000, ("Employee").
WITNESSETH:
WHEREAS, Employer is engaged in the telephone and telecommunication installation
and service, and manufacture sale and installation of highway signs and traffic
control products.
WHEREAS, Employer desires to employ Employee as the Vice President & Chief
Financial Officer of Employer.
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.
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, is consideration of the foregoing and mutual promises and
covenants herein contained, it is agree as follows:
1. EMPLOYMENT: DUTIES
Employer hereby employs Employee as the Vice President & Chief Financial Officer
of Employer. Subject at all times to the direction of the Board of Directors and
C.E.O. of Employer, Employee shall be responsible for the performance of such
services and duties as the Board of Directors and President 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 Vice President &
Chief Financial Officer 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 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 thereunder shall be for a term of one (1) year to commence
on the date hereof. This Agreement may be extended for an additional three (3)
one year terms after the initial term of one (1) year. The Employee/Employer
must give a minimum of ninety (90) days 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 item 5 of this agreement titled "Termination without
Cause".
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4. TERMINATION FOR CAUSE
Not withstanding any other provision of this Agreement, Employee may be
terminated on thirty (30) days notice without further benefits or compensation
for any of the following reasons: a) misappropriation or embezzlement of any
Employer property or funds; b) conviction of a felony, c) breach of any material
provision of this agreement.
5. TERMINATION WITHOUT CAUSE
Termination without cause can only be affected by an action by the Board of
Directors representing a majority of the members approving such termination. In
the event of the termination without cause, the Employee will be paid on years
severance pay of $150,000 and regular company fringe benefits. Severance will be
paid on the day of termination of $100,000 with the remainder of $50,000 to be
paid within 45 days from the date of termination. In the case of a change of
control/ownership (merger, acquisition, etc.) or a change to the current job
responsibilities as Vice President & Chief Financial Officer as defined in the
Xxxx X. Xxxxx Employment Agreement dated April 27, 1998 severance pay of
$150,000 will be paid upon the day of that change.
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 fifty thousand dollars ($150,000) per annum, payable
no less frequently than in 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
Board of Directors will review Employee's salary and benefits and if appropriate
in its sole and absolute discretion will increase such salary and benefits for
the next succeeding year.
iv) AUTOMOBILE ALLOWANCE. Employer shall provide Employee with an allowance of
Five Hundred Dollars ($500) per month.
7. OPTIONS
Employee will receive 50,000 share stock options (subject to) approval of the
Board of Directors. If there is a change of control, or sale of Able Telcom
Holding than the 50,000 share options will vest immediately. Otherwise the
50,000 share options will vest after one year of employment.
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.
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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 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.
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 contractual
Contract Period (hereinafter referred to as the "Disability Period"), the
Employee nevertheless shall be entitled to full salary and other payments not
including bonus or stock options, 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 Contract. Employee shall
be considered to be incapacitated when 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 Employer, directly or indirectly, without the expressed
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 enforce 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 no expressed herein.
13. ENTIRE AGREEMENT: MODIFICATION
All prior agreements (prior to October 1, 1998) 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, 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.
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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 thereof, 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 Employee and Employer.
19. READINGS
The headings of the paragraphs herein are inserted for convenience and shall not
affect any interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have set their hands and seals this 1st day of
October, 1998.
Witness: Employer: ABLE TELCOM HOLDING CORP.
By: /s/ [ILLEGIBLE] By: /s/ XXXXXXX XXXXXX
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[ILLEGIBLE] Xxxxxxx Xxxxxx
Chief Executive Officer
Witness: Employee: Xxxx X. Xxxxx
By: /s/ XXXXXXXXX XXXXXXX By: /s/ XXXX X. XXXXX
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