Exhibit 10.3 - Xxxxxxx X. Mango, Jr. Consulting Agreement (August 1, 2000 -
July 31, 2002)
Exhibit 10.3 - Pg. 1
CONSULTING AGREEMENT
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THIS CONSULTING AGREEMENT (the "Agreement") is made and entered into this
1st day of August, 2000, between Eagle Capital International, Ltd., a Nevada
corporation, having an address at 0000 Xxxxxxxxx Xxxx., Xxxxx 000X, Xxxx Xxxxx,
Xxxxxxx 00000 ("Eagle" or the "Company") and MAG Development Company, a
Delaware corporation having an address at 00 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Consulting").
RECITALS
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WHEREAS, Eagle is a building materials and construction company performing
services in the building trades business; and
WHEREAS, Consultant specializes in providing certain consulting services
to construction companies; and
WHEREAS, Consultant has proposed to perform certain services for the
benefit of Eagle, and Eagle desires that Consultant perform such services; and
WHEREAS, Eagle and Consultant wish to enter into this Agreement to set
forth all of the terms and conditions upon which such work will be performed;
and
WHEREAS, it is acknowledged that concurrent with the execution of this
Agreement, Eagle and Xxxxxxx X. Mango, Jr. ("Mango"), a principal of
Consultant, are entering into an employment agreement (hereinafter referred
to as the "Mango Employment Agreement").
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Eagle and Consultant hereby agree
as follows:
1. Retention of Consultant. Eagle will retain Consultant and Consultant
agrees to provide advice pertaining to the construction industry as more
specifically outlined below upon the terms and conditions contained in this
Agreement.
2. Term. This Agreement shall be for a period of twenty-four (24)
months beginning August 1, 2000, and ending on July 30, 2002. At all times,
this Agreement shall run concurrently with the Mango Employment Agreement.
Not less than one hundred and twenty (120) days prior to the expiration of
this Agreement, Consultant shall contact the Company to discuss whether this
Agreement will be modified or extended.
3. Duties.
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3.1 During the term of this Agreement, the Consultant will provide
the Company with consulting advice regarding the supervision, management, and
Exhibit 10.3 - Pg. 2
operations of Eagle's building materials and construction business, provided
that the Consultant shall not be required to undertake duties not reasonable
within the scope of the consulting advisory service in which Consultant is
engaged generally. In performance of these duties, the Consultant shall act
in good faith and provide the Company with the benefits of its best judgment
and efforts. It is understood and acknowledged by the parties that the value
of the Consultant's advice is not measurable in any quantitative manner, and
that the amount of time spent rendering such consulting advice shall be
determined according to the Consultant's discretion.
3.2 Consultant represents to the Company that:
3.2.1 Consultant provides consulting advisory services;
3.2.2 Consultant is free to enter into this Agreement; and
3.2.3 the services to be provided pursuant to this
Agreement are not in conflict with any other contractual or other
obligation to which Consultant is bound.
4. Compensation.
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4.1 Eagle shall pay Consultant for all services hereunder as
follows:
4.1.1 Six Thousand Dollars ($6,000.00) per month, in
advance on the 1st day of each month commencing August 1, 2000 through
January 1, 2001; and
4.1.2 Fifteen Thousand Dollars ($15,000.00) per month, in
advance on the 1st day of each month from February 1, 2001 through July 1,
2002.
The monthly fee amounts shall be pro-rated for any partial month
periods within the Term.
4.2 In addition to payment of the fees described above, Eagle shall
reimburse Consultant for such reasonable out-of-pocket expenses (such as travel
expenses) incurred directly in connection with the performance of the services
hereunder.
4.3 The fees set forth above include all applicable federal, state
and local taxes currently in force.
5. Trade Secrets/Non-Competition.
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5.1 Trade Secrets.
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5.1.1 Consultant promises and agrees that Consultant will
not disclose or utilize any trade secrets, confidential information, or
Exhibit 10.3 - Pg. 3
other proprietary information acquired during the course of its service
with Eagle and/or its related business entities. As used herein "trade
secret" means the whole or any portion or phase of any formula, pattern,
device, combination of devices, or compilation of information which is
for use, or is used, in the operation of Eagle's business and which
provides Eagle an advantage, or an opportunity to obtain an advantage,
over those who do not know or use it. "Trade secret" also includes any
scientific, technical, or commercial information, including any design,
list of suppliers, list of customers, or improvement thereof, as well as
pricing information or methodology, contractual arrangement with vendors
or suppliers, business development plans or activities, or Eagle
financial information. However, "trade secret" shall not include
information that is known to the public generally or is obtained through
sources outside Eagle.
5.1.2 During the term of this Agreement and for a period
of twenty-four (24) months from the expiration or termination of this
Agreement, and provided that Eagle does not terminate this Agreement prior
to the expiration of the initial six (6) months of this Agreement,
Consultant agrees to refrain from engaging in a business which directly
competes with the business of Eagle, whether as a partner, consultant,
owner, director, officer or employee, from soliciting current or former
contacts of Eagle within the United States of America, from soliciting
existing contacts of Eagle wherever located, and from disclosing customer
lists, trade secrets and other confidential information.
5.1.3 For a period of twenty-four (24) months from the
expiration or termination of this Agreement, Consultant promises and
agrees that it will not, without the express written consent of the
Chairman of Eagle's Board of Directors, whose consent will not be
reasonably withheld, directly or indirectly employ, or directly or
indirectly solicit to employ as a consultant or employee, any person who
is exclusively employed as a consultant or employee of Eagle as of August
1, 2000, or any person who was an employee or consultant of Eagle during
the six (6) months preceding August 1, 2000.
5.2 Injunctive Relief. In recognition of the possibility that any
violation of this provision by Consultant may cause irreparable or
indeterminate damage of injury to Eagle, Consultant expressly stipulates
and agrees that Eagle shall be entitled, upon five (5) business days written
notice to Consultant, to obtain an injunction from any court of competent
jurisdiction restraining any violation or threatened violation of this
provision. Such right to an injunction shall be in addition to, and not
in limitation of, any other rights or remedies Eagle may have for damages.
Exhibit 10.3 - Pg. 4
6. Termination and Compensation upon Termination.
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6.1 Termination Events. This Agreement shall terminate upon any of
the following events:
6.1.1 The Company or Consultant may terminate this Agreement
upon one hundred twenty (120) days written notice to the other.
6.1.2 The termination of the Mango Employment Agreement.
6.1.3 The expiration of the natural term of this Agreement.
6.2 Compensation upon Termination. In the event of the termination
of this Agreement, the Consultant shall be entitled to receive any compensation
due and owing under this Agreement at the time of termination under the same
formula as set forth in the Mango Employment Agreement for "base compensation".
7. Entire Agreement. This Agreement represents the entire understanding
and agreement between the parties with respect to the subject matter of this
Agreement, and supersedes all other negotiations, understandings (including any
prior employment agreement) and representations, if any, made between such
parties.
8. Amendments. This Agreement shall not be altered, amended or modified
unless it be in writing and signed by all parties to this Agreement.
9. Assignments. Neither the Company nor Consultant may assign or
transfer this Agreement or any obligation under this Agreement without the
prior written approval of the other.
10. Binding Effect. All of the terms and provisions of this Agreement,
whether so expressed or not, shall be binding upon, inure to the benefit of,
and be enforceable by the parties and their respective personal
representatives, legal representatives, heirs, successors and permitted
assigns.
11. Severability. If any provision of this Agreement or any other
agreement entered into pursuant to this Agreement is contrary to, prohibited by
or deemed invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or deemed
invalid under applicable law or regulation, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder of such provision shall not be invalidated and
shall be given full force and effect so far as possible. If any provision of
this Agreement may be construed in two or more ways, one of which would render
the provision invalid or otherwise voidable or unenforceable and another of
which would render the provision valid and enforceable, such provision
Exhibit 10.3 - Pg. 5
shall have the meaning which renders it valid and enforceable.
12. Notices. All notices, requests, demands, consents and other
communications required or permitted under this Agreement shall be in writing
(including telex and telegraphic communication) and shall be (as elected by the
person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed (airmail if international) by registered or
certified mail (postage prepaid), return receipt requested, addressed to:
If to Consultant: MAG Development Company
Attn: Xxxxxxx X. Mango, Jr.
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
If to the Company: Xxxxxxx X'Xxxxx, Chairman and CEO
Eagle Capital International, Ltd.
0000 Xxxxxxxxx Xxxx., Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx, P.A.
0000 Xxxxxx Xxxx
Xxxxx 000, Xxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Each such notice shall be deemed delivered: (a) on the date delivered if
by personal delivery; (b) on the date of transmission with confirmed answer
back if by telefax or other telegraphic method; or (c) on the date upon which
the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities or courier service as not deliverable,
as the case may be, if mailed or couriered.
13. Jurisdiction and Venue. The parties acknowledge that a substantial
portion of negotiations, anticipated performance and execution of this
Agreement occurred or shall occur in Palm Beach County, Florida. Regardless
of any location of such occurrences, each of the parties irrevocably and
unconditionally: (a) agrees that any suit, action or legal proceeding arising
out of or relating to this Agreement shall be brought in the courts of record
of the State of Florida in Palm Beach County or the Federal District Court of
the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; (c)
waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts; and (d) agrees that service
of any court paper may be effected on such party by mail, as provided in this
Agreement, or in such other manner as may be provided under applicable laws or
court rules in State of Florida.
14. Attorneys Fees: The parties covenant and agree that if a default or
disagreement occurs pursuant to or concerning this Agreement which necessitates
legal proceedings, the prevailing party shall be entitled to recover reasonable
Exhibit 10.3 - Pg. 6
costs and attorneys fees, inclusive of appellate and bankruptcy proceedings.
15. Governing Law. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the internal laws of the State of Florida without regard to principles of
conflicts of laws.
16. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall be deemed to be an original and such
counterparts shall together constitute one and the same instrument.
EAGLE CAPITAL
INTERNATIONAL, LTD.
By:_________________________
Xxxxxxx X'Xxxxx
Its: Chairman and CEO
MAG DEVELOPMENT COMPANY
By:_________________________
Its:_________________________
Exhibit 10.3 - Pg. 7
