EXHIBIT 10.45
CONSULTING AGREEMENT
AND
EMPLOYMENT AGREEMENT
Agreement dated this 15th day of March, 1999, by and between Able Telcom Holding
Corp. ("ATHC") with its address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, and ▇▇▇▇▇ ▇. Brands ("BRANDS") of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Able Telcom Holding Corp. is engaged in the telephone and
telecommunication installation and service, and manufacture, sale and
installation of highway signs and traffic control products; and
WHEREAS, Able Telcom Holding Corp. desires to employ Brands as its Senior
Executive Vice President; and
WHEREAS, Able Telcom Holding Corp. desires to avail itself of the services of
Brands in order that his knowledge and ability may be utilized in the conduct
and development of the business and affairs of Able Telcom Holding Corp.; and
WHEREAS, Brands has evidenced his willingness to enter into an employment
agreement with respect to his employment by Able Telcom Holding Corp., 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. CONSULTING
For the period commencing March 15, 1999-April 2, 1999 Brands will serve as a
consultant to Able Telcom Holding Corp. Brands shall be compensated twenty
thousand ($20,000) dollars payable as follows: $10,000 on April 15, 1999
$10,000 on May 15, 1999
2. EMPLOYMENT: DUTIES
Brands shall devote his full time to the performance of services as Senior
Executive Vice President or to such other services as may from time to time be
designated by the Able Telcom Holding Corp.'s Chief Executive Officer or Board
of Directors. Brands agrees to perform Able Telcom Holding Corp.'s services well
and faithfully and to the best of Brands's ability to carry out the policies and
directives of the Company.
3. FULL TIME EMPLOYMENT
Brands hereby accepts employment by Able Telcom Holding Corp. upon the terms and
conditions contained herein and agrees that during the term of this Agreement,
Brands shall devote all of his business time, attention and energies to the
business of Able Telcom Holding Corp; provided, however, the parties agree that
Brands may devote a limited amount of time to serving as a director of other
companies and during the inception of this agreement , in transition from other
business responsibilities.
4. TERM
Brands employment hereunder shall be for a term of one (1) year to commence on
April 5, 1999. This Agreement may be extended for an additional two (2) years
term after the initial term of one (1) year. Either party must give a minimum of
ninety (90) days prior written notice to the other party that either party
elects to have the Agreement terminate effective at the end of any term. If Able
Telcom Holding Corp. violates a major provision of this Agreement, Brands may
terminate this Agreement and receive an amount equal to the provisions under
paragraph 6 of this agreement titled " Termination without Cause". At the end of
the initial one year period, Brands may sign a consulting agreement. The terms
of that Agreement will be negotiated not later than January 5, 2000.
5. TERMINATION FOR CAUSE
Notwithstanding any other provision of this Agreement, Brands 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 Able
Telcom Holding Corp. property or funds; b) conviction of a felony or, c) breach
of any material provision of this Agreement.
6. TERMINATION WITHOUT CAUSE
Termination without cause can only be effected by an action of the Board of
Directors. In the event of the termination without cause, Brands will be paid
severance pay equal to the term remaining in this agreement plus regular company
fringe benefits for the remaining term of the contract. Severance of $50,000
will be paid on the day of termination with the balance, if any, paid bi-weekly
over the next 3 months. Fringe benefits will continue to be paid for the term
remaining.
7. COMPENSATION
As full compensation for the performance of his duties as Senior Executive Vice
President on behalf of Able Telcom Holding Corp., Brands shall be compensated as
follows:
i) BASE SALARY. Employer during the term hereof shall pay Employee a base
salary as follows:
April 2, 1999-April 30, 1999 $5,750
May 1, 1999-May 31, 1999 $2,500
June 1, 1999-May 31, 2000 $12,500 monthly
However if another executive or management employee other than a Chief Executive
Officer is hired during the initial term of this agreement at a compensation
rate greater than $12,500 per month, that compensation rate shall immediately
become the compensation rate for Brands for the remainder of the term.
ii) REIMBURSEMENT OF EXPENSES. Able Telcom Holding Corp. shall reimburse Brands
for the expenses incurred by Brands in connection with his duties hereunder,
including travel and entertainment, such reimbursement to be made in accordance
with regular Able Telcom Holding Corp. policy and upon presentation by Brands of
the details of, and vouchers for, such expenses.
iii) AUTOMOBILE ALLOWANCE. Able Telcom Holding Corp. shall provide Brands with
an automobile allowance of five hundred dollars ($500) per month. As its option
Able Telcom Holding Corp. may provide Brands with a late model Lincoln Town Car
and reimbursement of its operating costs.
iv) HOUSING ALLOWANCE. Able Telcom Holding Corp. shall provide Brands with a
housing allowance of fifteen hundred ($1,500) dollars per month effective August
1, 1999. During the period of April 2, 1999-July 31, 1999 Brands will be
reimbursed for actual expenses incurred.
8. OPTIONS
Brands will receive as at March 21, 1999 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 the last business day prior to April 5, 1999.
VESTING DATE
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April 5, 1999 75,000
June 21, 2000 25,000 (Subject to divestiture if Brands is not an
Able Telcom Holding Corp. employee on
April 5, 2000).
In the event of a change in control/ownership these options will vest
immediately. Said options must be exercised within 2 years of each vesting date.
9. FRINGE BENEFITS
During the term of this Agreement, Able Telcom Holding Corp. shall provide at
its sole expense to Brands hospitalization, major medical, life insurance and
other fringe benefits on the same terms and conditions as it shall afford other
management employees.
10. UPON TERMINATION OF EMPLOYMENT
Subsequent to the termination of the employment of Brands, Brands will not
interfere with or disrupt or attempt to disrupt Able Telcom Holding Corp.'s
business relationship with its customers or suppliers. Further, Brands will not
solicit any of the employees of Able Telcom Holding Corp. to leave the Able
Telcom Holding Corp. for a period of three (3) years following such termination.
In addition, Employee agrees that all information received from principals and
agents of Able Telcom Holding Corp. 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.
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. Able Telcom Holding Corp., or its management, directors,
representatives, employees or affiliates will not make any public announcements
or any other information related to Brands, directly or indirectly, without the
express written consent of Brands, 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 with respect to the subject matter hereof between the
parties are hereby cancelled. 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 Able Telcom Holding Corp., its successors and
assigns, and upon the Brands and his legal representatives, heirs and legatees.
This Agreement constitutes a personal service agreement, and the performance of
Brands's obligations hereunder may not be transferred or assigned by Brands.
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 15th day of
March, 1999.
Witness: Employer: ABLE TELCOM HOLDING CORP.
By: __________________________ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇
Chief Executive Officer
Witness: Employee:
By: __________________________ By: /s/ ▇▇▇▇▇ ▇. BRANDS
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▇▇▇▇▇ ▇. Brands