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EXHIBIT 10.33.1
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 XXXXX X. XXX, XX. ("Employee") of 0000
Xxxxxx Xxxxx Xxxxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Employer is engaged in the telephone and telecommunication 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 Chief Executive Officer and
President; 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 Chief Executive Officer and
President. Subject at all times to the direction of the Board of Directors, the
Employee shall be in charge of the overall business operations of Employer and
of such other services and duties as the Board of Directors 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 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 three (3) years to
commence on the date hereof. This Agreement will automatically be extended for
an additional three-year term after the initial term of three (3) years. 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 during the term of this agreement: a) material
misuse, misappropriation or embezzlement of any Employer property or funds; b)
conviction of a felony or c) material breach of any 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 in cash immediately receive 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 the 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 three hundred fifty
thousand dollars ($350,000) per annum, payable no less
frequently than in monthly installments.
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
or Employer will provide Employee, at Employee's option, with
an automobile and reimbursement of its operating costs.
f. Housing Allowance: Employer shall provide Employee with a
housing allowance of fifteen hundred dollars ($1,500) per
month.
7. OPTIONS
Employee will receive, when allowed by a shareholder-approved plan, an option to
purchase 100,000 shares of common stock with a strike price equal to the NASDAQ
price at the close of business on award date. Said option will vest immediately
upon approval by shareholders.
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8. FRINGE BENEFITS
During the term of this Agreement, Employer shall provide to the Employee and
his 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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Xxxxx X. Xxx
