CONSULTING AGREEMENT
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 1900 Corporate Blvd., Suite 400E, Boca
Raton, Florida 33431 ("Eagle" or the "Company") and MAG Development Company, a
Delaware corporation having an address at 30 Winding Lane, Greenwich,
Connecticut 06831 (the "Consulting").
RECITALS
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 Wilfred C. 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.
3.1 During the term of this Agreement, the Consultant
will provide the Company with consulting advice regarding the
supervision, management, and 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.
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.
5.1 Trade Secrets.
5.1.1 Consultant promises and agrees that
Consultant will not disclose or utilize any trade secrets,
confidential information, or 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.
6. Termination and Compensation upon Termination.
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 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: Wilfred C. Mango, Jr.
30 Winding Lane
Greenwich, Connecticut 06831
If to the Company: Anthony D'Amato, Chairman and CEO
Eagle Capital International, Ltd.
1900 Corporate Blvd., Suite 400E
Boca Raton, Florida 33431
With a copy to: David A. Carter, Esq.
David A. Carter, P.A.
2300 Glades Road
Suite 210, West Tower
Boca Raton, Florida 33431
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 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:
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Anthony D'Amato
Its: Chairman and CEO
MAG DEVELOPMENT COMPANY
By:
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Its:
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mangoconsulting.agr