Exhibit
10.31


 


CONSULTING AGREEMENT


 


This Agreement (“Agreement”)
is entered into on the 7th day of August, 2010, between Sabre Industries, Inc.
whose address is 1120 Welsh Road, Ste. 210 North Wales, PA 19454  (hereinafter “Company”) and David de Poincy whose
address is 2117 Dana Court, Flower Mound, Texas 75028 (hereinafter “Consultant”).


 


For good and valuable consideration which
sufficiency is hereby acknowledged, the parties hereto agree as follows:


 


1.             Term. The term of
this Agreement shall be for six (6) months, beginning June 7, 2010,
and shall be month-to-month following expiration of the initial six (6) month
period.  The Agreement may be terminated
by either party upon sixty (60) days’ written notice.


 


2.             Services.  Consultant agrees that he possesses specific
knowledge and experience from his prior employment at Company that may be
needed from time to time.  In the event
Company requests assistance from Consultant, Consultant agrees to cooperate and
assist Company as requested in Company’s sole discretion.  This assistance shall include, but not be
limited to, participation on conference calls, availability for telephonic and
in-person consultation, and on-site assistance with operations at any facility
or at the site of ongoing field operations for Company, upon receiving
reasonable notice of such a request.


 


3.             Compensation. Company
shall, during the Term of this Agreement, pay Consultant $16,500.00 per month
as compensation for the Services.  If Consultant is requested
to appear in person at any Company facility or in the field, Company shall
reimburse Consultant for all reasonable travel expenses.


 


4.             Independent
Contractor Relationship. The relationship of
Consultant and/or his employees (hereinafter Consultant) to Company is solely
that of an independent contractor. Consultant is solely responsible for the
conduct and control of the Services and is not an employee of Company for any
purpose. Consultant is solely responsible for and shall pay all federal, state
and local income taxes, Social Security taxes and any other similar
obligations, under any law or regulation, domestic or foreign, arising from its
performance of this Agreement or receipt of compensation thereof. Consultant
understands that no medical, dental, health, vacation or sick leave or other
benefits including, without limitation, stock option or bonus plans, and/or 401(K) contributions
and/or participation, provided to Company’s employees shall be provided to
Consultant by Company during or after the term of this Agreement. Consultant
shall promptly return all equipment purchased by Company for Consultant’s use
during the term of this Agreement to Company at the termination of this
Agreement. Consultant shall not enter into, nor represent it has the authority
to enter into, any contracts or commitments on behalf of Company, and shall
hold Company harmless from any loss, damage, liability or expense resulting
from any illegal or tortuous acts or omissions of Consultant.


 


5.             Consultant Warrants.


 


a.             Consultant
and/or his employees (hereinafter Consultant) has the experience and skills
necessary to perform and provide the Services required pursuant to this
Agreement. All Services provided by Consultant shall be performed (a) in a
professional manner, with a high grade, nature and quality, commensurate with
that which is customary in the industry, and (b) in compliance with all
applicable federal, state and local laws, rules, regulations and ordinances and
of Company’s applicable rules while Consultant is on Company’s premises.


 


b.             Consultant
shall not, without Company’s prior written approval, alter, enlarge or limit
orders, make representations or guarantees concerning Company’s Authorized
Products and Services or accept the return of, or make allowance for such
Authorized Products and Services.


 


c.             Consultant
shall furnish to Company’s Credit Department any information, which 


 


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Consultant
may have from time to time relative to the credit standing of any of Consultant’s
customers.


 


d.             Consultant
shall abide by Company’s policies and communicate the same to Company’s
customers when applicable.


 


e.             Consultant
shall not directly or indirectly call upon or solicit any customer with the
intention of diverting or attempting to divert such customer to use any
equivalent to products and services of the Company.


 


6.             Confidential
Information.


 


a.             Company Information.  Consultant agrees at all times during the
term of this Agreement, to hold in strictest confidence, and not to use, except
for the benefit of Company, or to disclose to any person, firm, corporation or
other entity without written authorization of Company, any Confidential
Information of Company which Consultant obtains or creates.  Consultant further agrees not to make copies
of such Confidential Information except as authorized by Company.


 


Consultant
understands that “Confidential Information” means any Company proprietary
information, technical data, trade secrets, or know-how, including, but not
limited to, information relating to past, present, or future business of
Company, or any plans therefore, market information, actual or prospective
personnel or clients, strategy, budgets, pricing, research, development,
operating results, services, business plans or designs, cost and pricing strategies
or information, client requirements and preferences, marketing research, work
product (including all documentation, creative works, know-how and information
created in whole or in part by Consultant during Consultant’s Relationship with
Company whether or not copyrightable or otherwise protectable) or other
competitively sensitive business information, and all related databases,
compilations and records disclosed to Consultant by Company, either directly or
indirectly, in writing, orally or by drawings or observation by Consultant
during the period of the Relationship, whether or not during working hours.


 


Consultant
understands that “Confidential Information” includes, but is not limited to,
information pertaining to any aspects of Company’s business which is either
information not known by actual or potential competitors of Company or is
proprietary information of Company or its customers or suppliers, whether of a
technical nature or otherwise. Consultant further understands that “Confidential
Information” does not include any of the foregoing items which have become
publicly and widely known and made generally available (without expending
significant time or effort) through no wrongful act of Consultant’s or of
others who were under confidentiality obligations as to the item or items
involved.


 


All
“Confidential Information” is and shall remain Company’s exclusive property,
and Consultant further agrees that all information used by Consultant in
connection with his/her job is confidential and valuable property of Company,
and that any such information developed by Consultant during the performance of
such employment is and shall remain the exclusive property of Company.  Consultant recognizes and acknowledges that
Company’s business matters and affairs (including, but not limited to, the
nature and extent of Company’s assets and holdings and any information related
to Company’s business relationships, developmental concepts, business practices
and policies, pricing structures, methods of business operation, operational
techniques, banking and lending relationships, or details of any financial
information related to the size and scope of Company,) are valuable to Company
and included within the definition of Confidential Information.


 


b.             Former Contractor or
Employee Relationship. Consultant represents that performance of
all terms of this Agreement as a Consultant has not breached and will not
breach any agreement to keep in confidence proprietary information, knowledge
or data acquired by Consultant in confidence or trust prior or subsequent to
the commencement of this Agreement and/or the payment of commissions to
Consultant by Company, and Consultant will not disclose to Company direct or
advise Company to use, any inventions, confidential or proprietary information
or material belonging to any previous employer or any other party.


 


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7.             Non-Compete.  Independent of any
obligation under any other contract or agreement between Consultant and
Company, and in consideration for the amounts paid pursuant to Paragraph 3,
during the performance of this Agreement in the continental United States and
any geographic region outside the continental United States in which Company
does business, Consultant shall not, directly or indirectly, whether as an
individual for his own account or for the benefit of others, own, manage,
operate, join, control, finance or participate in, or participate in the
ownership, management, operation, control or financing of, or be connected as a
principal, agent, representative, consultant, employee, investor, owner,
partner, manager, joint venturer or otherwise with, or permit his name to be
used by or in connection with any business, enterprise or other entity engaged
in competition with Company or its parent or subsidiary corporations or any
other entities affiliated with Company (its “Affiliates”) in any area in which
Company or its Affiliates does business (provided, however, that the
restrictions set forth in this clause shall not apply to involvement that
consists solely of “beneficially owning,” as such term is used in Rule 13d-3
promulgated under the Exchange Act, 2% or less of the outstanding securities of
any class of securities issued by a publicly-traded entity).


 


8.             Non-Solicitation.  In consideration for a
portion of the compensation paid pursuant to Paragraph 3, Consultant shall not,
directly or indirectly:


 


a.             For the duration of this
Agreement, contact with intent to solicit, hire, or attempt to contact, solicit
or hire any employee or independent contractor personnel of Company or its
Affiliates with whom Consultant had personal contact and did business with
while employed by Company;


 


b.             For the duration of this
Agreement, solicit, call upon or otherwise contact or offer products or
services to any customers or accounts of Company or its Affiliates with which
Consultant had any contact or association;


 


c.             For the duration of this
Agreement,  solicit or attempt to induce
or cause any employee of Company or its Affiliates to leave the employ of
Company or its Affiliates; or hire or otherwise accept the services of any
employee or former employee of Company or its Affiliates, whether solicited or
not solicited by Consultant;


 


d.             For the duration of this
Agreement, induce or attempt to induce any supplier, licensee or other business
relation of the Company or its Affiliates to cease doing business with the
Company or its Affiliates, or in any way interfere with the relationship
between any such supplier, licensee or business relation and Company (or its
Affiliates).


 


9.             Injunctive
Relief.  The parties
acknowledge that Consultant’s breach of any provision of this Agreement will
cause Company irreparable injury and damage. 
Consultant, therefore, expressly agrees that Company shall be entitled
to injunctive and other equitable relief in the event of, or to prevent, his
breach of any provision of this Agreement. 
Exercise of rights to equitable relief, however, shall not be construed
as waiver of any other right or remedy the Company may have for damages or
otherwise.


 


10.          Return
of Company Documents. 
Consultant agrees that, at the time of termination of this Agreement, it
will deliver to Company (and will not keep in his/her possession, recreate or
deliver to anyone else) any and all devices, records, data, notes, reports,
proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, laboratory notebooks, materials, flow charts; equipment, other
documents or property, or reproductions of any aforementioned items developed
by Consultant pursuant to the terms of this Agreement or otherwise belonging to
Company, its successors or assigns. 
Consultant further agrees that any property situated on Company’s
premises and owned by Company, including disks and other storage media, filing
cabinets or other work areas, is subject to inspection by Company personnel at
any time with or without notice.


 


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11.          Representations
and Covenants.


 


a.             Consultant agrees to execute
promptly any proper oath, or verify any proper document, required to carry out
the terms of this Agreement upon Company’s reasonable and necessary written
request to do so.


 


b.             Consultant hereby warrants
that he/she is not now under any legal or contractual obligation that would
conflict in any manner with the obligations and duties he/she is undertaking
herein, and that his/her execution of this Agreement will not breach any
agreement to which he/she is now a party.


 


c.             Consultant certifies and
acknowledges that he/she has carefully read all of the provisions of this
Agreement and that he/she understands and will fully comply with such
provisions.


 


12.          General
Provisions.


 


a.             In the event
any of the foregoing restrictions are held to be in any respect an unreasonable
restriction upon Consultant, then the court so holding shall reduce the
territory to which it pertains and/or the period of time in which it operates,
or effect any other change to the extent necessary, to render any of the
restrictions enforceable.  Each of the
terms and provisions of this Agreement is, and is to be deemed, severable in
whole or in part, and if any term or provision, or the application thereof to
circumstances other than those as to which it is held invalid, illegal or
unenforceable, shall not be affected thereby, and shall remain in full force
and effect.


 


b.             The captions
contained herein are solely for the convenience of the parties, and shall not
be deemed to govern the meaning or intent of any of the provisions of this
Agreement.


 


c.             The rights and
obligations of Company hereunder shall inure to the benefit of, and be binding
upon, any successor or assign of Company. 
This Agreement is personal to Consultant and Consultant may not assign
his rights or delegate his shall not be assigned by it to any other party
whatsoever.


 


d.             The waiver or
non-enforcement by Company, of any breach of any provision of this Agreement,
shall not operate or be construed as a waiver of any subsequent breach by
Consultant.


 


e.             This Agreement,
unless stated otherwise herein, may only be amended by the written mutual
agreement of the parties hereto.


 


f.              The provisions
of this Agreement shall survive the assignment of this Agreement by Company to
any successor in interest or other assignee.


 


g.             Consultant
acknowledges and specifies that this Agreement is supported by adequate
consideration in the form of Consultant’s contract for services with Company.


 


h.             Consultant
acknowledges and specifies that he entered knowingly into this Agreement.


 


13.          Non-Disparagement.  The parties agree that their professional and
personal reputations are important and should not be impaired by either party
after this Agreement is executed. 
Consultant agrees not to disparage the professional or personal
reputation of Company, its officers, shareholders, directors, or management,
and Company agrees that it will not disparage Consultant’s professional or
personal reputation.


 


14.          Indemnity.  Excluding any claims based upon the
negligence, willful misconduct, or breach of this Agreement by Company,
Consultant hereby agrees to indemnify, defend and hold Company harmless from
and against any and all claims, damages, losses and expenses, including but not
limited to attorneys’ fees and disbursements, arising out of or resulting from
any claim, action or other proceeding (including without limitation any
proceeding by any of that is based upon (a) Consultant’s breach of this
Agreement, (b) the unauthorized conduct or actions of Consultant within or
outside the scope of this Agreement, or (c) any negligent act or omission
or willful misconduct of Consultant.


 


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15.          Governing
Law. This Agreement and the obligations of the parties
hereunder shall be interpreted, construed and enforced in accordance with the
laws of Texas, except for its conflict of laws rules and principles. Any
legal action or proceedings with respect to this Agreement shall be initiated
in the jurisdiction of the state or federal courts of the State of Texas and
venued in the State of Texas for resolution.


 


16.          Disputes
and Arbitration.  The parties
agree that any disputes or questions arising during the performance of this
Agreement, including any disputes regarding the construction or application of
this Agreement, shall be arbitrated in accordance with the rules of the
American Arbitration Association then in force. 
If the parties cannot agree on an arbitrator within ten (10) days
after a demand for arbitration is made by either party, either or both parties
may request the American Arbitration Association to name a panel of five (5) arbitrators.  Company shall then strike two (2) names
on the list and Consultant shall then strike two (2) names from the list
and the remaining name shall be the arbitrator. 
The decision of the arbitrator shall be final and binding upon the
parties both as to law and to fact, and shall not be appealable to any court in
any jurisdiction over the parties.  The
expenses of the arbitrator shall be shared equally by the parties, unless the
arbitrator determines that the expenses shall be otherwise assessed.


 


17.          Termination. Either party may terminate
this Agreement for any reason, or for no reason, by written notice of
termination via certified mail, return receipt requested, at the address in
Paragraph 18 of this Agreement.  Such
termination shall be effective sixty (60) days after the date of postmark of
any notice.  The ability of either party
to terminate this Agreement shall in no way be interpreted as an at-will
employment provision and shall not otherwise affect Consultant’s status as an
independent contractor under this Agreement. 
In the event of a termination, compensation due pursuant to Paragraph 3
for the month in which the Agreement was terminated shall be prorated to the
date of termination, with no further compensation due after the date of
termination.  In the event Company
terminates the Agreement for a breach by Consultant, Consultant shall not be
entitled to further payments of the base compensation or payment of commissions
set forth in Paragraph 3 earned beyond the date of the breach.


 


18.          Notices.  Any notice or other communication required or
desired to be given in this Agreement shall be in writing and addressed to the
parties, respectively, as follows:


 


David
de Poincy


2117
Dana Court


Flower
Mound, Texas  75028


(817)
948-5733


 


James
D. Mack


Sabre
Industries, Inc.


1120 Welsh Road, Suite 210


Gwynedd Corporate Center


North Wales, PA 19454


 


19.          Entire
Agreement; Modifications. This Agreement
constitutes the entire agreement and understandings between the parties, and
supersedes all offers, negotiations and other agreements concerning the subject
matter contained herein. This Agreement, however, shall not supersede or
replace the terms of the Severance Agreement and Release between de Poincy and
Sabre.  This Agreement may not be
modified in any way without the written consent of both parties.


 


IN WITNESS WHEREOF, the parties
have executed this Agreement as of the date first above written.


 


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  David
  de Poincy

  	
   

  	
  Sabre
  Industries, Inc.,

  
	
   

  	
   

  	
  a
  Delaware Corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  David J. de Poincy

  	
   

  	
  By:

  	
  /s/
  James M. Tholey

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  8/7/10

  	
   

  	
  Name:

  	
  J.M.
  Tholey

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Date:

  	
  8/9/10

  



 


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