Exhibit 10.19


 


AMENDED
AND RESTATED CONSULTING AGREEMENT


 


AMENDED AND RESTATED CONSULTING AGREEMENT
(this “Agreement”), by and between SCL Ventures, Ltd. (the “Company”), and
Anthony F. Giordano (the “Consultant”).


 


W I T N E S S E T H:


 


The Company desires to engage the Consultant
to render consulting services to it and the Consultant is willing to provide
such consulting services to the Company, on the terms and conditions herein
provided.


 


In order to effect the foregoing, the parties
hereto wish to enter into a consulting agreement on the terms and conditions
set forth below.  Accordingly, in
consideration of the premises and the respective covenants and agreements of
the parties herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:


 


1.               Engagement.  The Company
hereby agrees to engage the Consultant to provide consulting services to the
Company pursuant to the terms and conditions of this Agreement and the
Consultant hereby agrees to provide such services to the Company.


 


2.               Term.


 


(a)                                  The term of this
Agreement (the “Term”) shall commence on April 1, 2004 and, unless
sooner terminated pursuant to paragraph (b) of this Section 2, shall
terminate on March 30, 2006; provided, however, that
notwithstanding the foregoing, the Term shall thereafter be automatically
extended for each succeeding one (1) year period, unless either party hereto
shall provide the other party with written notice at least ninety (90) days
prior to the end of the then current Term, advising that the party providing
the notice shall not agree to so extend the Term.


 


(b)                                 The Company or the
Consultant may terminate this Agreement at any time upon sixty (60) days prior
written notice; provided, however, that the Company may agree to
reduce or waive such prior written notice requirement by written agreement with
the Consultant.


 


(c)                                  Upon the termination of
this Agreement pursuant to paragraph (b) of this Section 2, neither the
Company nor the Consultant shall have any liability or obligation to the other,
except for (i) the obligation of the Company to pay the Consultant any due and
payable consulting fee pursuant to Section 5 for his consulting services
rendered to the Company prior to the termination of this Agreement, (ii) the
obligation of the Company to reimburse expenses incurred by the Consultant
pursuant to Section 6 and (iii) the restrictive covenant obligations of
the Consultant pursuant to Section 7, all of which shall survive such
termination; provided, however, that if the Company shall terminate
this Agreement pursuant to paragraph (b) of this Section 2, other than on
account of its reasonable determination that the actions or inaction of the
Consultant in the performance of (or failure to perform) his duties under this
Agreement were willfully negligent, constituted willful misconduct or were
materially injurious to the business affairs of the Company, within thirty (30)
days of such termination, the Company shall also make a lump sum cash payment
to the Consultant in the aggregate amount of the remaining monthly consulting
fee payments the Consultant would have received from the Company under
Section 5 through the end of the then Term, had such termination not
occurred.


 


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3.               Consulting Services. 
During the Term, the Consultant shall provide such consulting services
to the Company as the Company shall agree upon mutually with the Consultant,
including but not limited to those set forth on Exhibit A hereto (which Exhibit
may be amended in writing as agreed to by the Company and the Consultant).


 


4.               Nature of Relationship. 
The Consultant shall perform his consulting services hereunder in the
capacity of an independent contractor and not as an employee of the
Company.  Any provision to the contrary
in this Agreement notwithstanding, the Consultant shall have no power or
authority to execute or otherwise enter into any agreement on behalf of, or in
any way to bind, the Company.  The
Consultant shall not be considered as being employed by the Company for any
purpose, including without limitation, with respect to employee benefits
generally applicable to the Company’s employees.  The Company shall carry no workers’ compensation insurance or
health or accident insurance for the Consultant.  The Company shall pay no amounts on account of the Consultant for
purposes of Social Security, unemployment insurance or federal or state
withholding taxes and the Company shall not provide any other contributions or
benefits for the Consultant which might be expected in the context of an
employer-employee relationship.


 


5.               Consulting Fee. 
Upon the full execution of this Agreement, the Company shall pay the
Consultant a one-time initial consulting fee equal to One Hundred Fifty
Thousand Dollars ($150,000).  In addition,
during the Term, the Company shall pay the Consultant a monthly consulting fee,
in arrears, in an amount equal to Twenty Thousand Dollars ($20,000), with each
such monthly payment being payable on the first business day of the Company of
each next succeeding month.


 


6.               Expenses.  During the term
of this Agreement, the Company shall, upon receipt from the Consultant of
appropriate documentation consistent with the Company’s regular corporate
policies regarding expense reimbursement, reimburse the Consultant for his
ordinary and customary expenses incurred in performing his consulting services
hereunder, including expenses for non-commutation travel, all in accordance
with the Company’s regular corporate policies regarding expense reimbursement; provided,
however, that if the Consultant is to incur expenses in connection with
any single business activity or trip in excess of Twenty-Five Thousand Dollars
($25,000), the Company shall not reimburse such expenses unless the Consultant
obtains the consent of the Company’s Chief Executive Officer or Chief Financial
Officer thereto.


 


7.               Restrictive Covenants.


 


(a)                                  Reasonable Covenants.  It is expressly understood by and between
the Company and the Consultant that the covenants contained in this
Section 7 are an essential element of this Agreement and that but for the
agreement by the Consultant to comply with these covenants and thereby not to
diminish the value of the organization and goodwill of the Company or any
affiliate or subsidiary of the Company, including relations with their
employees, clients, customers and accounts, the Company would not enter into
this Agreement.  The Consultant has
independently consulted with his legal counsel and after such consultation agrees
that such covenants are reasonable and proper.


 


(b)                                 Noncompetition; No
Diversion of Customers; No Solicitation of Employees, Etc.  During the term of this Agreement and for
one (1) year after the end of the term of this Agreement, the Consultant shall
not:


 


(i)                                     engage, anywhere within the geographical
areas in which the Company, and/or any of its affiliates or subsidiaries have
conducted their business operations or provided services as of the date hereof
or at any time prior to the end of the term of this Agreement, directly or
indirectly, alone, in association with or as a shareholder, principal, agent,
partner, officer, director, employee or consultant of


 


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any other organization, in any business conducted by the Company or any
of its affiliates or subsidiaries;


 


(ii)                                  divert to any competitor of the Company
or any of its affiliates or subsidiaries, any customer of the Company or any of
its affiliates or subsidiaries;


 


(iii)                               solicit or encourage any officer,
employee or consultant of the Company or any of its affiliates or subsidiaries
to leave the employ of the Company or any of its affiliates or subsidiaries for
employment by or with any competitor of the Company or any of its affiliates or
subsidiaries;


 


provided, however, that the Consultant may
invest in stocks, bonds or other securities of any competitor of the Company or
any of its affiliates or subsidiaries if:


 


(A)                              such stocks, bonds, or other securities are listed on any national or
regional securities exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934;


 


(B)                                his investment does not exceed, in the case of any class of the capital
stock of any one issuer, one percent (1%) of the issued and outstanding shares,
or, in the case of other securities, one percent (1%) of the aggregate
principal amount thereof issued and outstanding; and


 


(C)                                such investment would not prevent, directly or indirectly, the
transaction of business by the Company and/or of its affiliates or subsidiaries
with any state, district, territory or possession of the United States or any
governmental subdivision, agency or instrumentality thereof by virtue of any
statute, law, regulation or administrative practice.


 


If, at any time, the provisions of this
Section 7(b) shall be determined to be invalid or unenforceable by reason
of being vague or unreasonable as to area, duration or scope of activity, this
Section 7(b) shall be considered severable and shall become and shall be
immediately amended solely with respect to such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court
or other body having jurisdiction over the matter and the Consultant hereby
agrees that this Section 7(b) as so amended shall be valid and binding as
though any invalid or unenforceable provision had not been included
herein.  Except as provided in this
Section 7, nothing in this Agreement shall prevent or restrict the
Consultant from engaging in any business or industry in any capacity.


 


(c)                                  Nondisclosure of Confidential
Information.  The
Consultant shall keep secret and confidential and shall not disclose to any
third party in any fashion or for any purpose whatsoever, any information
regarding this Agreement, or any other information regarding the Company or its
affiliates or subsidiaries which is not available to the general public, and/or
not generally known outside the Company or any such affiliate or subsidiary, to
which he has or shall have had access at any time during the course of his
consulting engagement with the Company, including, without limitation, any
information relating to the Company’s (and its affiliates’ or subsidiaries’):


 


(i)                                     business, operations, plans, strategies,
prospects or objectives;


 


(ii)                                  products, technologies, processes,
specifications, research and development operations and plans;


 


(iii)                               customers and customer lists;


 


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(iv)                              distribution, sales, service, support and
marketing practices and operations;


 


(v)                                 financial condition and results of
operations;


 


(vi)                              operational strengths and weaknesses; and


 


(vii)                           personnel and compensation policies and
procedures.


 


Notwithstanding the foregoing provisions of
this Section 7, the Consultant may discuss this Agreement with the members
of his immediate family and with his personal legal and tax advisors and may
disclose the existence of his consulting relationship with the Company to any
third party.


 


(d)                                 Specific Performance.  Without intending to limit the remedies
available to the Company or its affiliates or subsidiaries, the Consultant
hereby agrees that damages at law would be an insufficient remedy to the
Company or its affiliates or subsidiaries in the event that the Consultant
violates any of the provisions of this Section 7, and that, in addition to
money damages, the Company or its affiliates or subsidiaries may apply for and,
upon the requisite showing, have injunctive relief in any court of competent
jurisdiction to restrain the breach or threatened breach of or otherwise to
specifically enforce any of the covenants contained in this Section 7.


 


8.                                       Non-Assignability. 
Except with the written consent of both parties, neither the Consultant
nor the Company shall have any right to anticipate, alienate, sell, assign,
transfer, pledge, encumber or otherwise dispose of any right, interest, benefit
or payment under this Agreement and any attempted anticipation, alienation,
sale, assignment, transfer, pledge, encumbrance or other disposition of any of
such rights, interest, benefits or payments contrary to the provisions hereof
shall be null and void and without effect. 
All rights, interests, benefits and payments under this Agreement shall,
to the maximum extent permitted by law, be exempt from the claims of any
creditor or other person prior to the actual receipt thereof by the person
entitled to receive the same hereunder. 
Notwithstanding anything to the contrary contained in this
Section 8, the Consultant’s rights to receive payments hereunder may be
transferred by will or the laws of descent and distribution.


 


9.                                       Parties Bound. 
The rights and obligations of the Company under this Agreement shall
inure to the benefit of and shall be binding upon its affiliates, subsidiaries,
successors and assigns.


 


10.                                 Notice.  For the purposes
of this Agreement, notices, demands and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
delivered or (unless otherwise specified) mailed by United States certified or
registered mail, return receipt requested, postage prepaid, addressed as
follows:


 


If to the Consultant:


 


Anthony F. Giordano


20678 North West 27th Avenue


Boca Raton, Florida 33434


 


If to the Company:


 


SCL Ventures, Ltd.


515 East Las Olas Boulevard, Suite 1350


Fort Lauderdale, Florida 33011


 


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or to such other address as either party may have furnished to the
other in writing in accordance herewith except that notices of change of
address shall be effective solely upon their receipt.


 


11.                                 Severability.  If any provision of this Agreement (or part
hereof) shall be held to be invalid or unenforceable under applicable law, the
invalidity or unenforceability thereof shall not affect the validity or
enforceability of the remaining provisions hereof and each such other provision
(or the remainder of such provision) shall, to the full extent consistent with
applicable law, continue in full force and effect.


 


12.                                 Books
and Records.  The Consultant hereby
agrees that all books and records relating in any manner to the business of the
Company or that of its affiliates or subsidiaries, and all other files, books
and records and other materials owned by the Company or its affiliates or
subsidiaries or used by them in connection with the conduct of their businesses,
whether prepared by the Consultant or otherwise coming into the Consultant’s
possession, shall be the exclusive property of the Company or its affiliates or
subsidiaries regardless of which party prepared the original material, books or
records.  All such books, records and
other materials shall be returned immediately to the Company or its affiliates
or subsidiaries upon the termination of the Consultant’s services hereunder.


 


13.                                 Successors.  Notwithstanding anything to the contrary
contained in Section 8, this Agreement cannot be assigned by the Company
or its affiliates or subsidiaries except that it shall be binding automatically
on any successors and assigns of all or substantially all of the business
and/or assets of the Company (whether direct or indirect, by purchase, merger,
consolidation or otherwise).  This
Agreement and all rights of the Consultant hereunder shall inure to the benefit
of and be enforceable by the Consultant’s personal or legal representatives.


 


14.                                 Arbitration.  Except as provided in Section 7(d), all
controversies, claims or disputes arising out of or relating to this Agreement,
shall be settled by arbitration under the rules of the American Arbitration
Association, as the sole and exclusive remedy of either party, and judgment
upon such award rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction.  The costs of
arbitration shall be borne by the unsuccessful party or otherwise as determined
by the arbitrators in their discretion. 
Arbitration shall be held in Fort Lauderdale, Florida.


 


15.                                 Governing
Law.  The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Florida without regard to conflicts of law principles.


 


16.                                 Amendments.  No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Consultant and such officer of the Company
as may be specifically designated for such purpose by the Company.  No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.  No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.


 


17.                                 Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.


 


18.                                 Entire
Agreement.  This Agreement sets forth
the entire agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises, covenants,
arrangements, communications, representations and/or warranties, whether oral
or written, by any officer, employee or representative of any party
hereto.  The parties hereto hereby
acknowledge that no agreement or representation, oral or otherwise, express or
implied, with respect to the subject matter hereof has been made by either
party which is not set forth expressly in this Agreement.


 


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19.                                 Hold
Harmless.  The Company hereby agrees
to hold harmless the Consultant from any liability arising out of the
Consultant’s performance under this Agreement to the fullest extent permitted
by law for a director or officer of the Company, except to the extent of the
Consultant’s gross negligence or willful misconduct.


 


20.                                 Survival.  The obligations of the parties
hereto contained in Sections 2(c), 7, 14 and 19 shall survive the termination
of this Agreement.


 


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IN WITNESS WHEREOF, the parties have executed
this Agreement to be effective as of the Effective Date set forth in
Section 2(a) hereof.


 


	
  ATTEST:

  	
  SCL VENTURES, LTD.

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Kathrine Berry

  	
   

  	
  By:

  	
  /s/ Mitchell J. Sepaniak

  	
   

  
	
  Kathrine Berry

  	
   

  	
  Name: Mitchell J. Sepaniak

  
	
   

  	
   

  	
  Title:

  	
  President and

  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Kathrine Berry

  	
   

  	
  /s/ Anthony F. Giordano

  	
   

  
	
  Kathrine Berry

  	
  Anthony F. Giordano

  	
   

  
							



 


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