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EXHIBIT 10.3
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made as of the 1st
day of December, 1995, by and between X. X. Xxxxxxx, Inc. ("Corporation"), a
Florida corporation, and X. X. Xxxxxxx, an individual residing at 6780 C.R.
466A, Wildwood, Florida ("Consultant").
WHEREAS Consultant has considerable knowledge and experience
relating to the business of the Corporation as a result of his prior
affiliation with the Corporation as a director, officer, stockholder and
employee; and
WHEREAS Consultant desires to aid and assist the Corporation
as a consultant by providing certain advisory services to the Corporation; and
WHEREAS the Corporation desires to engage Consultant as a
consultant to render certain advisory services to the Corporation; and
WHEREAS the Corporation and Consultant desire to set forth
herein their understandings and agreements:
NOW THEREFORE, in consideration of the foregoing, of the
mutual promises herein set forth, and of other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
11. Engagement of Consultant
a. The Corporation does hereby appoint and engage Consultant as
its consultant and advisor with respect to the matters
specified in Section 2 hereof for the compensation hereinafter
set forth.
b. Consultant hereby accepts his appointment and engagement by
the Corporation as a consultant and advisor to the Corporation
with respect to the matters specified in Section 2 hereof for
the compensation hereinafter set forth.
12. Activities of Consultant. During the term of this Agreement specified
in Section 4 hereof ("Term"), Consultant shall undertake for and on
behalf of, and to the extent specifically requested in writing by, the
Board of Directors or the President of the Corporation, or by Xxxxxxx
X. Xxxxxxxx, to make himself available to advise the Corporation and
its officers and directors at all reasonable times, by telephone, by
letter or in person with respect to the business of the Corporation
and with respect to past matters or transactions of the Corporation.
In addition, the Consultant shall make himself available, upon
reasonable advance notice, to participate in the Corporation's
negotiation of new, and
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renegotiation of existing, service contracts. In no event shall
Consultant be required to engage in the foregoing activities for more
than one hundred (100) days in any single contract year during the
Term unless Consultant, in his sole discretion, deems that more hours
are necessary to carry out his duties hereunder.
13. Compensation of Consultant. The Corporation hereby covenants and
agrees to pay Consultant the sum of One Hundred Fifteen Thousand
Dollars ($115,000) per year, payable in equal monthly installments.
14. Term. The Term shall commence as of the date hereof and shall
continue for three (3) years.
15. Expenses; Office Space
a. During the Term, the Corporation shall pay or promptly
reimburse Consultant for all travel, entertainment, telephone,
and other expenses paid or incurred by Consultant in
connection with the performance of his activities,
responsibilities, and services under this Agreement, upon
presentation of expense statements, vouchers, or other
evidence of expense in conformity with the Corporation's
requirements with respect to the manner of reporting of such
expenses and the prior approval of all travel and
entertainment expenditures.
b. The Corporation shall provide Consultant with a private office
at the Corporation's offices at 000 XxXxxxxxx Xx., Xxxxxxxx,
Xxxxxxx and with reasonable secretarial and other support
services that may be needed from time to time.
16. Representations and Warranties of the Corporation
The Corporation represents and warrants to Consultant as follows:
a. The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of its
jurisdiction of incorporation.
b. The Corporation has full power and legal right and authority
to execute, deliver, and perform this Agreement, the officers
executing this Agreement on behalf of the Corporation have
full power and authority to do so and this Agreement is
binding upon and enforceable against the Corporation in
accordance with its terms.
c. There is (i) no suit, action, proceeding or claim, (ii) no
investigation or inquiry by any administrative or governmental
body, and (iii) no legal, administrative agency or arbitration
proceeding pending or, to the best of the Corporation's
knowledge, threatened against the Corporation or to which the
Corporation is or might become a party, which questions or
challenges the validity of this
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Agreement, or any action taken pursuant to this Agreement by
the Corporation, and to the best knowledge of the Corporation
there is no basis or ground for any suit, action, claim,
investigation, inquiry or proceeding.
17. Covenants of the Corporation
a. The Corporation shall promptly forward to Consultant any mail,
telephone messages, telegrams, notices, or other papers or
documents of a personal nature that are delivered to, or
received by, the Corporation.
b. The Corporation shall indemnify and hold harmless Consultant
fully, completely, and absolutely against and in respect of
(i) any and all losses and damages resulting from any
misrepresentation or breach of any warranty, covenant, or
agreement by the Corporation made or contained in this
Agreement, and (ii) any and all actions, suits, proceedings,
claims, demands, judgments, costs, and expenses, including
attorneys' fees, incident to the foregoing.
18. Independent contractor. Consultant shall at all times be an
independent contractor, rather than a coventurer, agent, employee, or
representative of the Corporation. The Corporation hereby
acknowledges that Consultant may engage directly or indirectly in
other businesses and ventures, not otherwise proscribed by the
Noncompetition Agreement of even date herewith between the Corporation
and Consultant, and shall not be required to perform any services
under this Agreement when, or for such periods in which, the rendering
of services shall unduly interfere with Consultant's other businesses
and ventures provided that such undertakings of Consultant shall not
preempt Consultant's availability during the Term
19. Binding effect; assignment. This Agreement shall be binding upon, and
shall inure to the benefit of, Consultant and the Corporation and
their respective heirs, executors or administrators, personal and
legal representatives, estate, legatees, and successors. The
obligations under this Agreement may not be assigned by the
Corporation or Consultant without the prior written consent of the
other party hereto, except that this Agreement may be assigned by the
Corporation to any entity controlled by, or under common control with,
the Corporation.
20. Notices. All notices and other communications hereunder or in
connection herewith shall be deemed to have been duly given if they
are in writing and delivered personally or sent by registered or
certified mail, return receipt requested and first-class postage
prepaid. They shall be addressed:
a. to Xxxxxxx X. Xxxxxxxx, c/o Able Telcom Holding Corp., 0000
Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, if to
the Corporation and
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b. to X.X. Xxxxxxx, 0000 X.X. 000X, Xxxxxxxx, Xxxxxxx 00000, if
to Consultant, unless notice of a change of address is given
to either party by the other pursuant to the provisions of
this Section 10.
21. Governing law. This Agreement shall be governed by and construed
under the laws of the State of Florida.
22. Miscellaneous
a. This Agreement shall constitute the only agreement between the
Corporation and Consultant relating to the subject matter of
Sections 1 and 2 hereof, and no representations, promises,
understandings, or agreements, oral or otherwise, not herein
contained shall be of any force or effect; provided, however,
that the validity or enforceability of the Noncompetition
Agreement or the Stock Purchase Agreement among Able Telcom
Holding Corporation (the ultimate parent of the Corporation),
Consultant and Xxxx X. Xxxxxxx shall not be affected in any
way.
b. No modification or waiver of any provision of this Agreement
shall be valid unless it is in writing and signed by the party
against whom it is sought to be enforced. No waiver at any
time of any provision of this Agreement shall be deemed a
waiver of any other provision of this Agreement at that time
or a waiver of that or any other provision at any other time.
c. The captions and headings contained herein are solely for
convenience and reference and do not constitute a part of this
Agreement or affect in any way the meaning or interpretation
of this Agreement.
d. To the extent possible, each provision of this Agreement shall
be interpreted in a manner as to be valid, legal and
enforceable. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective solely to the extent of such
provision which is invalid or unenforceable within rendering
invalid or unenforceable the remaining terms and conditions
hereof.
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IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed by its duly authorized officers and its corporate seal
to be affixed hereto, and Consultant has executed this Agreement, all effective
as of the day and year first above written.
CONSULTANT:
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X. X. Xxxxxxx
X. X. XXXXXXX, INC.:
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
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