EXHIBIT 10.38
[LOGO]
EMPLOYMENT AGREEMENT
Agreement dated this 12 day of November, 1998, by and between Able Telcom
Holding Corp., with its address at 0000 Xxxxx Xxxxx, Xxxxx 0000, Xxxx Xxxx
Xxxxx, Xxxxxxx, 00000, ("Employer"), and Xxxxxxx X. Xxxxxx, 000 Xxxxx Xxxxxx,
Xxx. X-0 Xxxxxxx Xxxxx, Xxxxxxx 33062("Employee").
WITNESSETH:
WHEREAS, Employer is engaged in the telephone and telecommunication installation
and service, and manufacture sale and installation of highway signs and traffic
control products.
WHEREAS, Employer desires to employ Employee as the CEO Of Able International of
Employer.
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.
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 as the Chief Executive Officer of Able International, a
subsidiary of Employer. Subject at all times to the direction of the Board of
Directors and CEO of Employer, Employee shall be in charge of the overall
business operations of International and the performance of such services and
duties as the Board of Directors and CEO 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 CEO 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 may be extended for additional one
(1) one year terms after the initial term of three (3) 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 item 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 this agreement will be negotiated
not later than the 30th month of this Agreement.
4. TERM1NATION FOR CAUSE
Notwithstanding any other provision of this Agreement, Employee may be
terminated on thirty (30) 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,
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 the termination without cause, the Employee will be paid one-year's
severance pay plus regular company fringe benefits. Severance of $100,000 will
be paid on the date of termination with the remainder of $100,000 payable within
45 days from the date of termination.
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 two hundred thousand dollars ($200,000) 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.
7) OPTIONS
Employee will receive a 100,000 share stock option subject to approval of Board
of Directors. If there is a change of control or sale of Able Telcom Holding
then the 100,000 share option will vest immediately. Otherwise 34,000 options
will vest after one year of employment and 33,000 options will vest each year
thereafter.
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 management
employees. Employer shall also pay all fringe benefits plus $60,000 per year for
the number of years equal to his years of service. This $60,000 per year will
start at the Employee's termination date.
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 three (3) 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 three (3) 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 one 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 enforce 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 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 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.
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 30 day of
November, 1998.
Witness: Employer: ABLE TELCOM HOLDING CORP.
By: /s/ XXXXXXX By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Chairman of the Board
Witness: Employee:
By: /s/ XXXXXX XXXXXXX By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx
[SEAL] [SEAL]
/s/ XXXXXXXXX XXXXXXX /s/ XXXXXXXXX XXXXXXX
