Exhibit 10.10
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of October 24, 2004, by
and between Alternative Construction Company, Inc., (the "Corporation"), a
Florida Corporation, and Avante Holding Group, Inc., a Florida Corporation (the
"Consultant").
RECITALS
A. The Corporation is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Florida. The Corporation is a startup company, which intends to
acquire Alternative Construction Technologies Corporation, a
manufacturer of structural insulated panels (SIPs) which are
marketed both domestically and internationally. The Corporation
may also engage in other related and affiliated businesses.
B. The Consultant has specialized corporate expertise and
diligently worked with the founders of the company in various
phases. Consultant has devoted considerable time and effort,
which has been invaluable to the creation and initial operations
of the Corporation. The Corporation finds the corporate
management experience and knowledge of the Consultant to be
essential to the success of the Corporation.
C. The Corporation desires to engage the Consultant, and the
Consultant desires to be so engaged, on the terms and conditions
set forth below.
AGREEMENT
Now therefore, in consideration of the Recitals, which shall be deemed
to be a substantive part of this Agreement, and the mutual covenants, promises,
agreements, representations, hereinafter set forth, the parties hereto do hereby
covenant, promise, agree, represent and warrant as follows:
1. Consulting.
1.1. The Corporation hereby contracts the Consultant to
fulfill the duties of Vice President of Corporate
Finance and to render services for and on behalf of the
Corporation in that position, and the Consultant shall
not be able to bind the Corporation without a Corporate
Resolution executed by the Corporation, and the
Consultant shall render such other and further services
for and on behalf of the Corporation as may be assigned
reasonably, from time-to-time, to the Consultant by the
Board of Directors of the Corporation (the "Services").
The Consultant hereby accepts such consulting with the
Corporation and agrees to render the Services for and on
behalf of the Corporation on the terms
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Consultant Corporation
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and conditions set forth in this Agreement. During the
term of this Agreement, the Consultant will report
directly to the Board of Directors of the Corporation.
The power to direct, control and supervise the services
to be performed, the means and manner of performing the
Services and the time for performing the Services shall
be exercised by the Board of Directors, provided,
however, that the Board of Directors shall not impose
any consulting constraints or duties which would require
the Consultant to violate any law, statutes, ordinance,
rule or regulation now or hereinafter in effect.
1.2. The starting base salary for the Consultant shall be
Eight Thousand Dollars ($8,000) per month payable in
equal monthly installments. Avante will xxxx the Company
at the end of each month for services rendered. This fee
will accrue and will be payable effective the sooner of
(i) 90 days after the receipt by the Company of at least
$500,000 in equity sales; or (ii) such time when the
Company's books reflect at least a combination of paid
in capital and/or gross sales, the combined total of
which exceed $750,000. The Consultant's base salary may
be increased each year effective January 1st by the
Compensation Committee of the Corporation's Board of
Directors, as shall be determined by the Compensation
Committee, however, the compensation may not be reduced
below the compensation paid (excluding bonus) in the
previous year without the mutual written consent of the
Consultant, unless there are not funds in the
Corporation available to pay such amounts. It is
understood that all payments to Consultant will be
responsible for all federal, state and local withholding
taxes. It is understood that Consultant may elect to
convert payment into Common Stock at a 10% discount to
the then current market price. Such election must be
approved by the Board of Directors of the Corporation.
Any stock conversion will have piggy back registration
rights.
1.3. In addition to the base salary, Consultant will receive
annual incentive bonus compensation equal to half of one
percent (.5%) of annual Gross Revenues (GR) plus
one-quarter of one percent (.25%) of the annual growth
in Gross Revenues (Bonus Year Gross Revenues less Prior
Year Gross Revenues) plus one and one-half percent
(1.5%) of Net Income (NI). The formula for calculation
of the annual incentive bonus is: .005GR + .0025 (Bonus
Year GR less Prior Year GR) + .015NI where GR and NI are
greater than or equal to zero. The annual incentive
bonus will be calculated based on the Corporation's
financial results as of December 31st of each year with
the bonus payable by April 15th of the following year.
1.4. In addition to all other compensation the Consultant
will be eligible for incentive stock options as may be
awarded from time-to-time by the
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Corporation and its Board of Directors. Whether
consultant is awarded all or any portion of these stock
options will be based upon specific criteria established
by the Corporation and its Board of Directors. These
criteria will reflect overall performance as compared to
planned goals of the Corporation, as well as the
Consultant's contribution to the Corporation's
performance. The Consultant shall also be eligible for a
deferred compensation plan to be created by the
Corporation.
1.5. The Consultant shall be reimbursed by the Corporation
for all reasonable business, promotional, travel and
entertainment expenses incurred or paid by the
Consultant in the course of carrying out the normal
duties and responsibilities of the Consultant's
position. In the event the Consultant is required, at
his sole discretion, to hire additional personnel to
maintain the services required, the Company will
reimburse the Consultant as part of this reimbursable
expense. The Consultant will advise the company in
advance prior to adding personnel. Reimbursement is
contingent upon the Consultant furnishing to the
Corporation in a timely fashion the appropriate
documentation required by the Internal Revenue Code in
connection with such expenses and shall furnish such
other documentation and accounting as the Corporation
may reasonably request.
1.6. The Services will be performed primarily at the
Consultant's headquarters office which has been
established by the Consultant in Brevard County,
Florida.
1.7. Consultant's functions are to provide web hosting, web
site design, corporate recordkeeping, investor
relations, financial planning and other activities as so
designated by the Board of Directors of the Corporation.
2. Term.
2.1. Subject to the provisions for termination of this
Agreement set forth below, the term of consulting shall
continue for a period of Three years and thereafter
shall automatically renew for one additional three-year
term.
2.2. Consultant may elect to terminate this Agreement for
Good Reason upon 30 days' written notice to the
Corporation. "Good Reason" means any of the following:
(a) the Corporation reduces the Consultant's position,
duties, compensation or authority, (b) the Corporation
merges, consolidates with another entity or sells more
than 50% of any class of its stock to a non-shareholder
without the consent of the Consultant, or (c) the
Corporation commits a material breach of
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this Agreement which is not cured by the Corporation
within 30 days after receiving written notice thereof
from the Consultant.
2.3. If (i) the Corporation terminates the Consultant during
the term of this Agreement, and the termination is
determined to not have been for "cause"; or, (ii) the
Consultant terminates this Agreement during the term of
the Agreement, and the termination is for Good Reason,
then the Corporation will pay the Consultant's salary,
benefits and bonuses provided for in Paragraph 1 for the
remainder of the current year. If the Corporation should
dispute whether or not the termination is "with cause"
or for Good Reason, whatever the case may be, then the
Corporation shall pay as a condition to bringing such
action into the registry of the court all amounts that
will be due the Consultant as Consultant's salary,
benefits and bonuses provided for in Paragraph 1 if the
Corporation does not prevail in any of its allegations
in such dispute, as security for the payment in full if
the Consultant should prevail in whole or in part.
2.4. For purposes of this Agreement termination "with cause"
shall mean termination for any of the following reasons:
2.4.1. The Consultant abuses alcohol or other
substances while performing his Services for the
Corporation which abuse negatively affects the
performance of this duties, such abuse is
habitual, and the Consultant fails to seek
competent abuse counseling within 30 days of
written notice by the Board of Directors;
2.4.2. The Consultant is convicted of any felony for
any crime involving the moral turpitude arising
out of his Services for the Corporation or any
other activity;
Performance of Services.
3.1 The Consultant shall devote sufficient time to the
Corporation's business to render the Services. The
Consultant shall comply with all laws, statutes,
ordinances, rules and regulations relating to the
Services. The Consultant may engage in other activities
during the term of this Agreement; provided that such
activities do not materially interfere with the business
of the Corporation. Consultant is an entrepreneur,
investment banker and venture capitalist, and as such
will devote substantial time to other interests. The
Consultant may engage in other activities during the
term of this Agreement.
4. Confidential Information, Trade Secrets, Inventions and
Creations.
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4.1 The Consultant acknowledges that in the Consultant's
consulting hereunder, the Consultant will be making use
of, acquiring and adding to the Corporation's trade
secrets and its confidential and proprietary information
of a special and unique nature and value relating to
such matters as, but not limited to, the Corporation's
business operation, internal structure, financial
affairs, programs, software, systems, procedures,
manuals, confidential reports, lists of clients and
prospective clients and sales and marketing methods, as
well as the amount, nature and type of services,
equipment and methods used and preferred by the
Corporation's clients and the fees paid by such clients,
all of which shall be deemed to be confidential
information. The Consultant acknowledges that such
confidential information has been and will continue to
be of central importance to the business of the
Corporation and that disclosure of it to or its use by
others could cause substantial loss to the Corporation.
In consideration of consulting by the Corporation, the
Consultant agrees that during his consulting the
Consultant shall not, for any purpose whatsoever,
directly or indirectly, divulge or disclose to any
person or entity any of such confidential information
which was obtained by the Consultant as a result of the
Consultant's consulting with the Corporation or any
trade secrets of the Corporation, but shall hold all of
the same confidential and inviolate.
5. Indemnification.
5.1 The Corporation shall indemnify the Consultant, hold the
Consultant harmless, and defend the Consultant to the
fullest extent permitted by applicable law from and
against all claims, threats, suits (except those arising
from disputes between the Corporation and the
Consultant), damages, penalties, liabilities, cost and
expenses including, without limitation, legal fees,
costs and disbursements (all collectively referred to as
"liabilities") incurred, suffered, or expended by or
threatened against the Consultant with respect to any
action or inaction in the course or performance of the
Consultant's duties under this Agreement except for
liabilities arising entirely out of the gross negligence
or willful misconduct of the Consultant. If any claims
are made against Consultant he shall be entitled to an
advance of his legal fees upon request to the Board of
Directors. This indemnification shall continue in effect
after the expiration or termination of this Agreement
and shall not be deemed exclusive of any other
indemnification right to which the Consultant may be
entitled under applicable law, agreement or the vote of
the Board of Directors.
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6. Notices. All notices and other communications required or
permitted to be given by this Agreement shall be in writing and
shall be given and shall be deemed received if and when either
hand-delivered or refused, or deemed received three-days after
being mailed by registered or certified U.S. mail, return
receipt requested, postage prepaid, and if to the
Corporation to: And if to the Consultant:
Alternative Construction Company Avante Holding Group, Inc
0000 X. Xxxxxx Xxxx Xxxx. 0000 X. Xxxxxx Xxxx Xxxx
Xxxxx 000 Xxxxx 000
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
or at such other address as either party hereto shall notify the
other of in writing.
7. Governing Law, Jurisdiction and Venue. The laws of the State of
Florida shall govern this Agreement without regard to any of its
conflict of law provision.
8. Attorneys' Fees. In any action to enforce this Agreement or for
damages relating to a breach of this Agreement, the Corporation
shall pay attorneys' fees, costs and expenses incurred in such
action including those of Consultant.
9. Noncompete. During the term of this Agreement and for a period
of two years thereafter, Consultant agrees that he will not be
employed by or otherwise engaged in any business which competes
with that of the Corporation. In addition Consultant shall not,
during such two year period, contact any of the Corporation's
customers or consultants concerning any business or potential
business which would compete with that of the Corporation. The
provisions of this Section 9 shall not apply if it is determined
that this Agreement was terminated by the Consultant for Good
Reason.
10. Miscellaneous.
10.1 This Agreement shall be binding upon and inure to the
benefit of the Corporation, its successors and assigns.
This Agreement shall be binding upon the Consultant and
his heirs, personal and legal representatives, and
guardians, and shall inure to the benefit of the
Consultant. Neither this Agreement nor any part hereof
or interest herein shall be assigned by the Consultant.
If there is a sale of the Corporation or change in
control thereof, as a condition precedent to any such
sale or change in control, the acquiring corporation or
controlling person must assume responsibility for this
agreement
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and all payments due hereunder, in writing, as a
condition to any such transaction. If such person or
entity does not assume liability for this agreement,
then such inaction shall constitute a breach hereunder
and Consultant shall be entitled to the payment provided
for in Section 2.3 hereof as liquidated damages.
10.2 The terms and provisions of this Agreement may not be
modified except by written instrument duly executed by
each party hereto.
10.3 The use of any gender herein shall be deemed to be or
include the other genders and the neuter and the use of
the singular herein shall be deemed to be and include
the plural (and vice versa), wherever appropriate.
10.4 This Agreement sets forth the entire, integrated
understanding and Agreement of the parties hereto with
respect to the subject matter hereof.
10.5 The headings in this Agreement are included for the
convenience of reference and shall be given no effect in
the construction of this Agreement.
IN WITNESS WHEREOF, the parties have executed, acknowledged, sealed and
delivered this Agreement the day and year first hereinabove set forth.
ALTERNATIVE CONSTRUCTION COMPANY, INC AVANTE HOLDING GROUP, INC.
By: /s/ /s/
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Director President
Dated October 24, 2004 Dated October 24, 2004
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