CONSULTING AGREEMENT
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This agreement ("Agreement") is dated as of February 16, 2005 and is by and
between Able Energy Inc. its subsidiaries, affiliates and assignees ("Able") and
Xxxxxxx Xxxxxxxxxx ("Xxxxxxxxxx).
WITNESSETH
WHEREAS, Able desires to retain Xxxxxxxxxx as a consultant ("Consultant") for
Able and Xxxxxxxxxx wishes to serve as a Consultant for Able;
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. THE SERVICES
It is hereby agreed that Xxxxxxxxxx shall be retained by Able to provide
business management services to Able, to assist Able in new business
development and to assist Able in acquisitions, mergers and financings.
The foregoing services of Xxxxxxxxxx to Able shall be at the direction
of the Board of Directors of Able during normal business hours and at
such times as are mutually convenient for Xxxxxxxxxx and Able.
Xxxxxxxxxx shall be available for a minimum of 8 hours of service per
week which Xxxxxxxxxx shall be required to provide to Able. Able
acknowledges that Xxxxxxxxxx shall only provide services to Able on a
part time basis and that Xxxxxxxxxx shall provide services to others,
subject to the terms and conditions of this Agreement; however, no such
other services shall be in conflict with or compete with the business of
Able and its subsidiaries, affiliates and assigns. Xxxxxxxxxx shall
advise Able in writing any services he is providing to all other third
parties during the term of this Agreement.
2. COMPENSATION FOR THE SERVICES; TERM
In consideration for the services rendered by Xxxxxxxxxx to Able as
Consultant, Able shall pay Xxxxxxxxxx Fifty Thousand ($60,000.00)
Dollars per year (the " Annual Compensation"), payable monthly in
arrears, in twelve (12) equal monthly installments; without deductions
for taxes, social security payments, health care benefits, payroll
taxes, costs or offsets. It is agreed and understood that Xxxxxxxxxx
shall be an independent contractor of Able and that Xxxxxxxxxx shall be
solely responsible for all taxes, social security payments, payroll
taxes, costs and other expenses allocable or attributable to his role as
Consultant for Able, except as otherwise provided herein. This Agreement
shall have a term ("Term") of two (2) years, commencing from the date of
this Agreement and ending two (2) years thereafter, for a total
compensation ("Total Compensation") of One Hundred Thousand
($120,000.00) dollars. The Total Compensation shall be the only
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compensation to which Xxxxxxxxxx is entitled from Able as and in his
role as Consultant for Able, notwithstanding any financings, mergers,
acquisitions, or other benefits Xxxxxxxxxx may bring to Able, it being
fully understood and agreed by the parties hereto that Xxxxxxxxxx shall
not be entitled to any commissions, equity participations or other
benefits from fulfilling his role as Consultant for Able, unless
otherwise agreed to by Able and Xxxxxxxxxx.
Able shall reimburse Xxxxxxxxxx for all expenses incurred by him in the
performance of his duties hereunder provided; however, that for all
expenses over and above $200 in the aggregate during any thirty day
period he shall obtain prior written consent from Able's President, CFO
or COO. Xxxxxxxxxx shall provide receipts or other written evidence of
all such expenses to Able at the time of request for reimbursement. All
of such expenses shall be reimbursed to Xxxxxxxxxx within 30 days of the
submission to Able of a written request therefore, together with written
evidence of such expenses.
During the Term of this Agreement, Able shall provide Xxxxxxxxxx and his
immediate family with medical, health and hospitalization insurance
comparable to the benefits provided to him during his former term of
employment with Able. Xxxxxxxxxx shall reimburse Able for 50% of the
actual cost of such insurance to Able.
In addition to the compensation stated above, Xxxxxxxxxx shall receive
options to purchase 100,000 shares of Able common stock pursuant to
Able's stock option plan. The exercise price of such options shall be
the market price on the date of grant as specified by the Board of
Directors and such options shall have a term of five years. All of such
options and the common stock issuable thereunder shall be registered
pursuant to Form S-8.
Able shall assign title and ownership of the automobile currently used
by Xxxxxxxxxx to Xxxxxxxxxx upon the expiration of the purchase lease
agreement for the automobile. In the event Able shall be required to
make payments for more than six months from the date hereof with respect
to such automobile, Xxxxxxxxxx shall reimburse Able for all of such
amounts.
3. REPORTS; DUTIES; RESPONSIBILITIES
At the request and direction of the Board of Directors of Able, it is
understood and agreed that Xxxxxxxxxx shall supply the Board of
Directors of Able with a report of Xxxxxxxxxx'x actions and activities
as Consultant, detailing the nature and extent of such actions and
activities, the results thereof and anything else done in connection
with the fulfillment of his activities and obligations as Consultant on
behalf of Able. It is clearly understood and agreed that all business
opportunities which Xxxxxxxxxx obtains in connection with his duties and
obligations as Consultant shall belong solely to Able and Xxxxxxxxxx
shall not retain any business opportunity for himself.
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4. INDEPENDENT CONTRACTOR STATUS
Xxxxxxxxxx is not an employee or partner of Able for any purpose
whatsoever, but is acting as an independent contractor. As such, neither
party has the authority to bind the other, nor make any unauthorized
representations on the behalf of the other. Xxxxxxxxxx does not have the
right or authority to create a contract or obligation, either express or
implied, on behalf of, in the name of or binding upon Able; including,
without limitation, to pledge Able's credit, or to extend credit in
Able's name, unless otherwise agreed to with the express written consent
of Able. Xxxxxxxxxx shall have no right to commit Able or any of its
affiliates or subsidiaries in any manner whatsoever, without the express
written consent of Able.
5. SERVICES TO OTHERS
Xxxxxxxxxx shall have the right to engage in other business activities,
provided such services and activities are not provided to a competitor
of Able. Xxxxxxxxxx shall be prohibited from engaging in the home
heating oil business in any manner including but not limited to the
methodology utilized by XxxxxXxxxxx.Xxx as well as all other business
of Ablein the United States for a period of five (5) years from the
beginning of the Term.
6. INDEMNIFICATION
Xxxxxxxxxx hereby agrees to indemnify Able, and each of its officers,
directors, employees, legal representatives and assigns (collectively,
"Indemnitees") and hold each of them harmless from and against any and
all acts, statements, omissions, or decisions made by him as Consultant
or otherwise. This indemnity and hold harmless obligation shall include
expenses and fees, including reasonable attorneys fees, incurred by any
Indemnitee in connection with the defense of any act, suit or proceeding
arising out of the foregoing.
Able will protect, indemnify and hold harmless Xxxxxxxxxx against any
claims or litigation including any damages, liability, cost and
reasonable attorney's fees as incurred with respect thereto resulting
from Xxxxxxxxxx'x duties hereunder, except as such may arise from the
grossly negligent or intentional acts of Xxxxxxxxxx. This indemnity and
hold harmless obligation shall include expenses and fees, including
reasonable attorneys fees, incurred by Xxxxxxxxxx in connection with the
defense of any act, suit or proceeding arising out of the foregoing.
However, it is understood and agreed that Able shall have the absolute
right to utilize its attorneys for the protection and defense of
Xxxxxxxxxx.
7. ASSIGNMENT. The rights and obligations of the parties hereunder cannot
be assigned delegated to any third party without the written consent of
the other party hereto.
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8. TERMINATION. In the event Xxxxxxxxxx shall be convicted of or plead
guilty to a crime constituting a felony, Able shall have the right to
terminate this agreement. Upon any such termination, Xxxxxxxxxx shall
retain all rights to the stock options and automobile provided for in
Section 2 hereof and shall be paid all compensation and expense
reimbursement though the date of termination.
9. LEGAL REPRESENTATION. Able and Xxxxxxxxxx each acknowledge that they
have each received the benefit of independent legal counsel in
connection with the negotiation and execution of this Agreement.
10. ARBITRATION. Any controversy or claim arising out of or relating to any
interpretation, breach or dispute concerning any of the terms or
provisions of this Agreement, which disagreement is not settled within
thirty days after it arises, shall be settled by binding arbitration in
New York City, New York in accordance with the laws of the State of New
York and under the rules then obtaining of the American Arbitration
Association and judgment upon the award rendered in said arbitration
shall be final and may be entered in any court of the State of New York
having jurisdiction thereof. Any party hereto may apply for such
arbitration.
11. CONFIDENTIALLY. This entire Agreement, including the terms of this
Agreement, shall remain confidential in its entirety and will not be
disclosed to anyone without first receiving written consent to do so,
unless required to do so by the Securities Act of 1934 and 1933, as
amended. This is a material part of this Agreement.
12. COMPLIANCE WITH LAW. During the Term, Xxxxxxxxxx shall comply with all
laws and regulations applicable to consultants in the conduct of Able's
business and performance of its obligations hereunder.
13. NO ORAL CHANGE: WAIVER. This Agreement may only be changed, modified, or
amended in writing by the mutual consent of the parties hereto. The
provisions of this Agreement may only be waived in or by writing signed
by the party against whom enforcement of any waiver is sought.
14. SEVERABILITY. If any provision of this Agreement shall be held or deemed
to be, or shall in fact be, inoperative or unenforceable as applied in
any particular case because it conflicts with any other provision or
provisions hereof, or any other provision or provisions hereof, or any
constitution or statute or rule of public policy, or for any other
reason, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable to any extent
whatsoever. The invalidity of any one or more phrases, sentences,
clauses, sections or subsections of this Agreement shall not affect the
remaining portions of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts when taken together will
constitute one and the same agreement.
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16. ENTIRETY
This instrument sets forth the entire agreement between Xxxxxxxxxx and
Able. No promise, representation or inducement, except as herein set
forth, has been made by either party to this Agreement. Should any
provision of this Agreement be void or unenforceable, the rest of this
Agreement shall remain in full force. This Agreement may not be
cancelled, altered, or amended except in writing.
ABLE ENERGY, INC.
BY: /s/ Xxxxxxxxxxx Xxxxxx
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TITLE: Chief Financial Officer
/s/ Xxxxxxx Xxxxxxxxxx
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