FORM OF CONSULTING AGREEMENT
Exhibit 10.14
FORM OF
CONSULTING AGREEMENT
CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (this “Agreement”), is dated as
of October 1, 2009, by
and among FECR Rail Corp., Florida East Coast Railway LLC (together
with FECR Rail Corp., the “Company”), and
(“Consultant”).
WHEREAS, the Company desires to engage the services of Consultant upon the terms and subject
to the conditions hereinafter set forth, and Consultant desires to accept such engagement.
NOW, THEREFORE, for and in consideration of the premises, the mutual promises, covenants and
agreements contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Consulting Period. This Agreement shall become effective on the date hereof and
shall continue in effect until terminated in accordance with Section 5 hereof (the “Consulting
Period”).
2. Consulting Services. During the Consulting Period, Consultant shall consult with
the Company and its subsidiaries as to strategic initiatives designed to grow the Company’s and its
subsidiaries’ revenue and enhance the value of their franchise. Such initiatives are expected to
include developing active rail service to the Port of Miami, continuing to grow the Company’s
intermodal franchise by expanding relationships with Class I railroads and pursuing additional
revenue opportunities with both existing and new industrial customers. The services provided by
Consultant pursuant to this Agreement are hereinafter referred to as the “Services.”
3. Independent Contractor.
(a) Independent Contractor Status. Nothing in this Agreement shall be construed to
constitute the Company and Consultant as partners or as joint venturers, as agent of the other, or
as employer and employee. Consultant’s relationship to the Company during the Consulting Period
shall only be that of an independent contractor and Consultant shall perform the Services as an
independent contractor.
(b) Exercise of Independent Judgment. The Company shall not, with respect to the
Services, exercise or have the power to exercise such level of control over Consultant as would
indicate or establish that a relationship of employer and employee exists between Consultant and
the Company. Consultant shall have full and complete control over the manner and method of
rendering the Services.
(c) Inability to Bind. Consultant shall not have any right or authority to assume or
create any obligation or responsibility, express or implied, on behalf of or in the name of the
Company or any of its subsidiaries, or to bind such entities in any manner, except as may be
authorized in writing by the Board of Directors of the Company (the “Board”), and shall not
make any contrary representation to any third party. Consultant shall not direct the work of any
employee of the Company or make any management decisions on behalf of the Company.
(d) No Right to Benefits. During the Consulting Period, Consultant shall not be
entitled to, and shall make no claim to, rights or benefits afforded to the employees of the
Company
or any of its subsidiaries, including, without limitation, medical, dental, disability or
unemployment insurance, workers’ compensation insurance, pension and retirement benefits,
profit-sharing, or rights under any other benefit plan or program applicable to employees of the
Company or any of its subsidiaries.
4. Compensation. In consideration for Consultant’s performance of the services
hereunder, Consultant shall receive a grant of restricted stock units with respect to the common
shares of FECR Rail Corp. (the “Equity Grant”), in the amount and on the terms and conditions
set forth in the Restricted Stock Unit Award Agreement by and between
FECR Rail Corp. and Consultant,
dated as of the date hereof (the “Award Agreement”), as attached hereto. No withholding or
deduction from any amounts payable under the Award Agreement shall be made by the Company. It is
intended that Consultant shall be solely responsible for the payment of any federal, state, local
or other taxes, including but not limited to, estimated taxes and self-employment taxes, as well as
any interest or penalties which may be assessed, imposed or incurred as a result of the
compensation paid under this Section 4.
5. Termination.
(a) Termination of this Agreement. This Agreement shall terminate at the earliest to
occur of the following: (i) the date on which the Company delivers written notice to Consultant
that the Company is terminating the consulting relationship because of a “Disability” (as defined
below); (ii) the date of Consultant’s death; (iii) the date on which the Company delivers written
notice to Consultant that the Company is terminating the consulting relationship for “Cause” (as
defined below) or without Cause; or (iv) the date on which Consultant delivers written notice to
the Company that the Consultant is terminating the consulting relationship for any reason or for no
reason.
(b) Benefits Upon Termination. Upon a termination of the consulting relationship, the
Equity Grant shall be subject to the applicable treatment set forth in the Award Agreement. Other
than as set forth in the immediately preceding sentence, Consultant shall not be entitled to any
payments or benefits upon a termination of this Agreement.
(c) Certain Definitions.
(i) An “affiliate” of, or a person “affiliated” with, a specified person, is a
person that directly, or indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, the person specified.
(ii) “Cause” means (A) conviction of a felony or crime of dishonesty, or, (B) with
respect to the Company, any subsidiary of the Company, FECR Rail LLC or any affiliate of the
Company (excluding, the Company and its subsidiaries and FECR Rail LLC) that engages Consultant as
an employee or consultant (collectively, “Affiliated Engagers”), (1) fraud, (2) violation
of a material rule or policy applicable to Consultant, (3) willful breach or neglect of any
reasonable assignment of duties, (4) failure to comply with any reasonable request relating to
consulting services made by the Company, its subsidiaries, FECR Rail LLC or any Affiliated Engager,
and with respect to Consultant’s status as an employee with any Affiliated Engager, failure to
comply with a direction from a senior officer or the board of directors of such affiliate, (5)
violation of any restrictive covenants contained in any agreement
entered into between the Consultant and the Company or any Affiliated
Engager (including without limitation, the Award Agreement), or (6) willful
breach of fiduciary duties as a member of the board of directors of the Company, any of its
subsidiaries, FECR Rail LLC or any Affiliated Engager, if applicable.
(iii) “Disability” means, as determined by the Board in good faith, Consultant’s
inability, due to disability or incapacity, to perform all of Consultant’s duties under this
Agreement or under any other agreement(s) between the Company and Consultant for (A) periods
aggregating one hundred eighty (180) days, whether or not continuous, in any continuous period of
three hundred and sixty five (365) days or, (B) where Consultant’s absence is adversely affecting
the performance of the Company in a significant manner, periods greater than ninety (90) days and
Consultant is unable to resume Consultant’s duties on a full time basis within ten (10) days after
receipt of written notice of the Board’s determination under this clause (B).
6. Severability. If any provision of this Agreement shall be declared to be invalid
or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof, which shall remain in full force and effect.
7. Entire Agreement. The provisions contained herein constitute the entire agreement
between the parties with respect to the subject matter of this Agreement and supersede any and all
prior agreements, understandings and communications between the parties, oral or written, with
respect to such subject matter.
8. Modifications. Any waiver, alteration, amendment or modification of any provisions
of this Agreement shall not be valid unless in writing and signed by each party hereto.
9. Assignment; Binding Effect. Neither party may assign any of its or his rights or
delegate any of its or his duties under this Agreement without the written consent of the other
party and any attempted assignment in violation of this provision shall be void. Subject to the
foregoing limitations, this Agreement shall be binding upon and inure to the benefit of the
successors-in-interest and permitted assigns of the parties hereto.
10. Notices. All notices and other communications required or permitted under this
Agreement shall be made in writing and shall be deemed given if delivered personally, sent by
nationally recognized overnight courier service or by facsimile. Any notice or other communication
shall be deemed given on the date of delivery, or on the date one (1) business day after it shall
have been given to a nationally-recognized overnight courier service.
11. Choice of Law; Venue. This Agreement shall be governed by and construed in
accordance with the law of the State of Delaware, without regard to conflicts of laws principles
thereof. Any legal action, suit or proceeding arising out of or in connection with this Agreement
shall be brought in the United States District Court for the Middle District of Florida or in the
courts of the State of Florida (in each case applying the laws of the State of Delaware).
12. Section Headings. The section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or interpretation of this
Agreement.
13. Counterparts. This Agreement may be executed in one or more counterparts, which
shall, collectively and separately, constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first
above written.
| Consultant | ||||||
| FECR Rail Corp. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Florida East Coast Railway LLC | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page to Consulting Agreement]
Schedule
A Consulting Agreement, substantially in the form to which this Schedule is attached, has been
entered into with the following individuals:
1. Xxxx X.
Xxxxx
2. Xxxxx Xxxxxxx
3. Xxxxx Xxxxx
4. Xxxx Xxxxxxxx
5. Xxxxxxx Xxxxxxxxx
6. Xxxxx X. Xxxxxxxx
7. Xxxxx Xxxxx
2. Xxxxx Xxxxxxx
3. Xxxxx Xxxxx
4. Xxxx Xxxxxxxx
5. Xxxxxxx Xxxxxxxxx
6. Xxxxx X. Xxxxxxxx
7. Xxxxx Xxxxx
