EXHIBIT 10.33
[LOGO]
EMPLOYMENT AGREEMENT
Agreement dated this 1st day of December, 1998, by and between Able Telcom
Holding Corp., with its address at 0000 Xxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxx
Xxxxx, Xxxxxxx, 00000, ("Employer"), and Xxxxx X. Xxx 0000 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000 ("Employee").
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 Interim 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, is 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 Interim Chief Executive Officer and
Interim 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 two (2) years to commence
on the date hereof. This Agreement may be extended for an additional two year
term after the initial term of two (2) years. 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
paragraph 5 of this agreement titled " Termination without Cause". At the end of
the two-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 20th month of this Agreement.
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 representing 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 90 days severance pay.
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 eighty thousand ($180,000) 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 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.
iv) AUTOMOBILE ALLOWANCE. Employer shall provide Employee with an automobile
allowance of five hundred dollars ($500) per month.
v) HOUSING ALLOWANCE: Employer shall provide employee with a housing allowance
of fifteen hundred ($1,500) per month.
7. OPTIONS
Employee will receive as of December 31, 1998 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 December 31, 1998. Said option will vest immediately.
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 executive
management employees.
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, 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 two 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 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 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.
13. ENTIRE AGREEMENT: MODIFICATION
All prior agreements (prior to December 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.
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
Florida.
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 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. 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.
IN WITNESS WHEREOF the parties have set their hands and seals this 22 day of
December, 1998.
Witness: Employer: ABLE TELCOM HOLDING CORP.
By: /s/ J. XXXXX XXXXXX By: /s/ C. XXXXX XXXXXX
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C. Xxxxx Xxxxxx
Chairman of the Board
Witness: Employee:
By: /s/ J. XXXXX XXXXXX By: /s/ XXXXX X. XXX
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Xxxxx X. Xxx
