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Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), made effective
as of May 12, 1997, by Integrated Site Development, Inc., a Delaware
corporation (the "Corporation"), and Xxx X. Xxxxxx, III (the "Executive"), an
individual residing in Saline County, Arkansas.
W I T N E S S E T H:
WHEREAS, the Corporation is engaged in all aspects of wireless
communications site acquisition, tower development and ownership, site
management, co-location marketing, project management, and site maintenance;
WHEREAS, by virtue of Executive's demonstrated and expected experience
and service to the Corporation, the Corporation wishes to employ Executive, and
Executive desires to accept employment with the Corporation, all upon the terms
and conditions enumerated below;
WHEREAS, as a part of said employment by the Corporation, Executive is
expected to make new contributions and inventions of value to the Corporation
and Executive will otherwise have access to confidential and proprietary
information of the Corporation;
WHEREAS, the Corporation desires to receive from Executive a covenant
not to disclose certain information relating to the Corporation's business and
certain other covenants;
WHEREAS, the obligations of the Corporation pursuant to the Membership
Interests Contribution Agreement, of even date herewith, by and among the
Corporation and Executive, Xxxxxxxx X. Xxxxxx, Xxxxxx Family Limited
Partnership, Central Arkansas Opportunity Foundation, Telesite Services, LLC
and Metrosite Management, LLC are conditioned upon and subject to the
Corporation and Executive entering into this Agreement; and
WHEREAS, Executive is the owner, of record and beneficially, of
490,517 shares of the Common Stock, par value $0.001 per share, of the
Corporation (the "Shares").
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration,
including the employment of Executive by the Corporation and the compensation
received by Executive from the Corporation from time to time, and specifically
the compensation to be received by the Executive pursuant to paragraphs 5(a),
(c) and (d) herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending legally to be bound, hereby agree
as follows:
1. EMPLOYMENT. The Corporation hereby employs Executive and
Executive hereby accepts employment upon the terms and conditions hereinafter
set forth. Upon termination of this Agreement as provided herein, Executive's
employment with the Corporation shall immediately terminate. Executive agrees
to serve as the Vice President of the Corporation and as
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the Vice Chairman of the Board of Directors of the Corporation. Executive's
principal responsibilities are set forth on Exhibit A attached hereto.
2. TERM. Subject to the provisions for termination that are
hereinafter provided, the term of this Agreement shall be deemed to have
commenced on May 12, 1997 (the "Effective Date") and shall continue until May
31, 1999, and thereafter shall automatically be renewed on a year-to-year basis
on the same terms and conditions set forth herein unless terminated as provided
herein or unless amended or modified by mutual agreement of the parties hereto.
(As used throughout this Agreement, "Term" shall include the initial term and
any renewals or extensions thereof in accordance with this Agreement).
3. DUTIES. Executive shall faithfully perform all duties set forth
on Exhibit A hereto and in the Bylaws of the Corporation related to the
position or positions held and those additional duties that are prescribed from
time to time by the Board of Directors, the Chairman of the Board, or other
designated parties within the Corporation.
4. EXCLUSIVE SERVICE. Executive agrees to devote substantially all
of his full time and attention to the performance of his duties and
responsibilities on behalf of the Corporation and in furtherance of only its
best interests. Executive agrees to comply with all policies, standards and
regulations of the Corporation now existing or hereafter promulgated.
5. COMPENSATION. During the Term of this Agreement, Executive's
compensation shall be determined and paid as follows (all payments are subject
to required withholding):
(a) Base Salary. Executive shall receive as compensation
a salary of Three Hundred Fifty Thousand Dollars ($350,000.00) per
year for the initial term to be paid consistent with the payroll
payment schedule of the Corporation. Thereafter, Executive's salary
will be subject to annual review by the Board of Directors of the
Corporation based on merit and area job size benchmarking.
(b) Benefits. In addition to Executive's salary,
Executive shall receive those benefits provided from time-to-time to
other executive employees of the Corporation. All such benefits are
subject to change from time-to-time by the Corporation without the
consent of Executive or any other employee of the Corporation.
(c) Vacation. Executive shall be entitled to two (2)
weeks paid vacation per fiscal year (with the vacation for any partial
year being prorated). Vacation days may not be used in any subsequent
fiscal year and no cash shall be paid in lieu of unused vacation.
(d) Business Expenses. The Corporation shall pay all
reasonable expenses incurred by Executive directly related to conduct
of the business of the Corporation, provided Executive complies with
the policies for reimbursement or advance of business expenses
established by the Board of Directors of the Corporation, which shall
include at a minimum providing reasonable evidence of such expenses
and the business reason for such expenses.
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6. TERMINATION. This Agreement shall or may be terminated, as the
case may be, upon the terms and conditions hereinafter provided. Upon
termination, all salary due as of the date of termination shall be paid:
(a) Voluntary Termination. This Agreement shall be
considered voluntarily terminated by the parties upon the occurrence
of any of the following events, whichever shall first occur:
(i) If Executive or the Corporation shall have given
written notice to the other of intention not to renew this
Agreement for the coming year, such notice to be delivered at
least ninety (90) days prior to the last day of the initial
term or any renewal term.
(ii) At any time on or after May 31, 1999 upon
ninety (90) days, prior written notice by the Corporation or
Executive to the other that this Agreement shall be
terminated.
(b) Involuntary Termination. The Corporation may
terminate this Agreement upon notice in writing to Executive (or his
personal representative) in any of the following events:
(i) In the event of the death of Executive, in which
case this Agreement immediately shall be terminated; provided
such termination shall not prejudice any benefits payable to
Executive's spouse or beneficiaries which are fully vested as
of the date of death.
(ii) In the event of the permanent disability (as
hereinafter defined) of Executive, in which case this
Agreement immediately shall be terminated; provided such
termination shall not prejudice any benefits payable to
Executive, Executive's spouse or beneficiaries which are fully
vested as of the date of permanent disability.
(iii) In the event of the liquidation, dissolution
or discontinuance of business by the Corporation in any manner
or the filing of any petition by or against the Corporation
under any federal or state bankruptcy or insolvency laws,
which petition shall not be dismissed within sixty (60) days
after filing; provided such termination shall not prejudice
Executive's rights as a shareholder or a creditor of the
Corporation.
(iv) At the election of the Corporation "for cause",
as hereinafter defined, immediately upon written notice to
Executive. "For cause" shall mean:
(1) Any material breach of the terms of this
Agreement by Executive, or the failure of Executive
to diligently and properly perform his duties for the
Corporation which is not otherwise cured or remedied
within thirty (30) days of Executive's receipt of
written notice from the Corporation alleging such
breach or failure (the foregoing cure period
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shall apply only if such breach or failure is curable
and only to the first two (2) such alleged breaches
or failures); or
(2) Any material failure to comply with the
policies and/or directives of the Board of Directors
which is not otherwise cured or remedied within
thirty (30) days of Executive's receipt of written
notice from the Corporation alleging such breach or
default (the foregoing cure period shall apply only
if such failure is curable and only to the first two
(2) such alleged failures); or
(3) Any dishonest or illegal action
(including, without limitation, embezzlement) or any
other action whether or not dishonest or illegal by
Executive which is materially detrimental to the
interest and well-being of the Corporation,
including, without limitation, harm to its
reputation; or
(4) Executive fails to fully disclose any
material conflict of interest he may have with the
Corporation in a transaction between the Corporation
and any third party which is materially detrimental
to the interest and well-being of the Corporation; or
(5) Any adverse act or omission which would
be required to be disclosed pursuant to public
securities laws or which would limit the ability of
the Corporation or any entity affiliated with the
Corporation to sell securities under any Federal or
state law or which would disqualify the Corporation
or any affiliated entity from any exemption otherwise
available to it, all of which are materially
detrimental to the interest and well-being of the
Corporation.
7. PERMANENT DISABILITY DEFINED. For purposes of this Agreement,
Executive shall be considered permanently disabled when a qualified medical
doctor mutually acceptable to the Corporation and Executive or his personal
representative shall have certified in writing that: (i) he is unable because
of a medically determinable physical or mental disability to perform
substantially all of his duties for more than ninety (90) calendar days
measured from the last full day of work; or (ii) by reason of mental or
physical disability, it is unlikely that he will be able, within ninety (90)
calendar days, to resume substantially all business duties and responsibilities
in which he was previously engaged and otherwise discharge his duties under
this Agreement.
8. CONFIDENTIALITY AND COVENANT NOT TO COMPETE.
(a) Confidentiality. Executive acknowledges that, in and
as a result of his employment by the Corporation, he has been and will
be making use of, acquiring and/or adding to confidential information
of a special and unique nature and value, including, without
limitation, the Corporation's trade secrets, products, systems,
programs, procedures, manuals, guides (as periodically updated or
supplemented), confidential reports and communications (including,
without limitation, customer information, technical information on the
performance and reliability of the Corporation's products and the
development or acquisition of future products or product enhancements
by the
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Corporation) and lists of customers, as well as the nature and type of
the services rendered by the Corporation and the fees paid by the
Corporation's customers. Executive further acknowledges that any
information and materials received by the Corporation or Executive
from third parties in confidence (or subject to non-disclosure
covenants) shall be deemed to be and shall be confidential information
within the meaning of this Section 8(a). As a material inducement to
the Corporation to continue to employ Executive and to pay to
Executive compensation as set forth herein for such services to be
rendered to the Corporation by Executive (it being understood and
agreed by the parties hereto that such compensation shall also be paid
and received in consideration hereof), Executive covenants and agrees
that he shall not, except with the prior written consent of the Board
of Directors of the Corporation, at any time during or following the
termination of his employment with the Corporation, directly or
indirectly, divulge, use, reveal, report, publish, transfer or
disclose, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to him as a result
of his employment with the Corporation, including, without limitation,
any Proprietary Information, as defined in Section 9 hereof. The
aforementioned obligation of confidentiality and non-disclosure shall
not apply when:
(i) Public Domain. The Proprietary Information
disclosed to Executive was in the public domain at the time of
disclosure, or at any time after disclosure has become a part
of the public domain by publication or otherwise through
sources other than Executive, directly or indirectly, and
without fault on the part of Executive in failing to keep such
information confidential; or
(ii) Requirement of Law or Order. Disclosure is
required by law or court order or required in the opinion of
Executive's counsel, provided Executive gives the Corporation
prior written notice of any such disclosure and fully
cooperates with the Corporation in connection with, and uses
his best efforts to limit the nature and extent of, such
disclosure; or
(iii) Agreement. Disclosure is made with the prior
written agreement of the Board of Directors of the
Corporation; or
(iv) Prior Information. The information was in
Executive's possession prior to the Effective Date, as shown
by written records in existence prior to the Effective Date;
or
(v) Third Party Disclosure. The Proprietary
Information is lawfully disclosed to Executive after the
termination of his employment by a third party who is under no
obligation of confidentiality to the Corporation with respect
to such information; or
(vi) Independently Developed. Such information is
independently developed by Executive subsequent to the
termination of his employment with the Corporation, as
demonstrated by written records of Executive which are
contemporarily maintained.
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(b) Covenant Not To Compete. It is recognized and understood
by the parties hereto that Executive, through his association with the
Corporation as an employee, has and shall acquire a considerable
amount of knowledge and goodwill with respect to the business of the
Corporation, which knowledge and goodwill are extremely valuable to
the Corporation and which would be extremely detrimental to the
Corporation if used by Executive to compete with the Corporation. It
is, therefore, understood and agreed by the parties hereto that,
because of the nature of the business of the Corporation, it is
necessary to afford fair protection to the Corporation from such
unfair competition by Executive. Consequently, as material inducement
to employ Executive in the aforementioned position, Executive
covenants and agrees to the following:
(i) that at any time while engaged as an employee
of the Corporation and for a period of three (3) years
following his termination, he will not, directly or
indirectly, with or through any family member or former
director, officer or employee of the Corporation, or acting
alone or as a director, employee, agent, consultant, member of
a partnership, firm, corporation or other entity or as a
holder of or investor in as much as 5% of any security of any
class of any corporation or other business entity:
(1) engage anywhere in those states in which
the Corporation conducted business at any time within three
(3) years prior to the termination of Executive's employment
with the Corporation in any business related to wireless
communications site acquisition, tower development and
ownership, site management, co-location marketing, project
management, and site maintenance then being actively pursued
or reasonably anticipated to be pursued by the Corporation at
the time of such termination; or
(2) interfere with, or seek to interfere
with, the relationship between the Corporation and any
affiliate of the Corporation with the following: (a) any of
the employees of such entities; (b) any of the customers of
such entities then existing or existing at any time within two
(2) years prior to termination of Executive's employment with
the Corporation; or (c) any of the suppliers of such entities
then existing or existing at any time within three (3) years
prior to termination of Executive's employment with the
Corporation.
(ii) The parties hereto agree that in the event
that the lengths of time and geographic areas set forth in
paragraph (i) are deemed too restrictive to be enforceable in
any court proceeding, the court may reduce such time
restrictions to that which it deems reasonable under the
circumstances.
9. DEFINITION OF PROPRIETARY INFORMATION. For purposes of this
Agreement, the term "Proprietary Information" shall mean all of the following
materials and information (whether or not reduced to writing and whether or not
patentable or protectable by copyright) which Executive receives, receives
access to, conceives of or develops, in whole or in part, as a direct or
indirect result of his employment with the Corporation, in the course of his
employment with the Corporation (in any capacity, whether executive,
managerial, planning,
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technical, sales, research, development, manufacturing, engineering, or
otherwise) or through the use of any of the Corporation's facilities or
resources:
(a) Manufactured products, assembled or unassembled, and
related goods or systems thereof and any and all future products
developed or derived therefrom;
(b) With respect to the items described in Section 9(a)
above, all specifications, design concepts, documents and manuals; all
security systems relating to the product or procedures; all hardware
and software (and associated source and object codes) relating to
their design or manufacture, if any;
(c) Trade secrets, production processes, marketing
techniques, software programs, marketing plans, formulae, data,
mailing lists, purchasing information, price lists, pricing policies,
quoting procedures, financial information, customer and prospect names
and requirements, customer data, customer site information, pricing
strategies and other materials or information relating to the manner
in which the Corporation does business;
(d) Discoveries, concepts and ideas, whether or not
patentable or protectable by copyright, including, without limitation,
the nature and results of research and development activities,
technical information on product or program performance and
reliability, processes, formulas, techniques, "know-how", source
codes, object codes, designs, drawings and specifications;
(e) Any other materials or information related to the
business or activities of the Corporation which are not generally
known to others engaged in similar businesses or activities;
(f) Any other materials or information that has been
created, discovered or developed, or otherwise become known to the
Corporation which has commercial value in the business in which the
Corporation is engaged; and
(g) All ideas which are derived from or relate to
Executive's access to or knowledge of any of the above-enumerated
materials and information.
Failure to xxxx any of the Proprietary Information as confidential
shall not affect its status as Proprietary Information under the terms of this
Agreement.
10. OWNERSHIP OF INFORMATION.
(a) Executive hereby assigns to the Corporation all of
Executive's right, title and interest in any idea (whether or not
patentable or protectable by copyright), invention, product, design,
formula, computer software program or other computer-related equipment
or technology, conceived or developed in whole or in part, or in which
Executive may have aided development, while employed by the
Corporation, including, without limitation, any Proprietary
Information (an "Invention"). If any one or more of the
aforementioned are deemed in any way to fall within the definition of
"work made by
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hire" as such term is defined in 17 U.S.C. Section 101, such work
shall be considered "work made for hire," copyright of which shall be
owned solely by, or assigned or transferred completely and exclusively
to the Corporation. Executive agrees to execute any instruments and
to do all other things reasonably requested by the Corporation (both
during and after Executive's employment with the Corporation) in order
to more fully vest in the Corporation all ownership rights in those
items thereby transferred by Executive to the Corporation. Executive
further agrees to disclose immediately to the Corporation all
Proprietary Information conceived of or developed in whole or in part
by him during the term of his employment with the Corporation and to
assign to the Corporation any right, title or interest he may have in
such Proprietary Information.
(b) Notwithstanding anything in this Agreement to the
contrary, the obligation of Executive to assign or offer to assign his
rights in an Invention to the Corporation shall not extend or apply to
an Invention that Executive developed entirely on his own time without
using the Corporation's equipment, supplies, facility or trade secret
information unless such Invention (i) relates to the Corporation's
business or actual or demonstrably anticipated research or
development, or (ii) results from any work performed by Executive for
the Corporation. Executive shall bear the burden of proof in
establishing that his Invention qualifies for exclusion under this
Section 10(b). With respect to Section 10(b) it is agreed and
acknowledged that during Executive's employment, the Corporation, with
the concurrence of its Board of Directors and consistent with the
Corporation's mission, may enter other lines of business, which are
related or unrelated to its current lines of business, in which case
this Agreement would be expanded to cover such new lines of business.
11. INDEMNIFICATION. Executive agrees to indemnify and hold
harmless the Corporation, its directors, officers, agents and employees from
and against any liabilities and expenses, including amounts paid in settlement,
incurred by any of them in connection with any claim by any of Executive's
prior employers that the termination of Executive's employment with such
employer, Executive's employment by the Corporation, or use of any skills and
knowledge of Executive by the Corporation is a violation of contract or law.
12. EXECUTIVE REPRESENTATIONS.
(a) Executive represents that his performance of all of
the terms of this Agreement, Employee's employment by the Corporation,
or Employee's use of any skills and knowledge does not and will not
breach any agreement to keep in confidence proprietary information
acquired by Executive in confidence or in trust prior to Executive's
employment by the Corporation. Executive represents that he has not
entered into, and agrees not to enter into, any agreement either oral
or written in conflict herewith.
(b) Executive understands as part of the consideration
for this Agreement and for Executive's employment or continued
employment by the Corporation, that Executive has not brought and will
not bring with Executive to the Corporation, or use in the performance
of Executive's responsibilities for the Corporation, any materials or
documents of a former employer which are not generally available to
the public or which
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did not belong to Executive prior to his employment with the
Corporation, unless Executive has obtained written authorization from
the former employer or other owner for their possession and use and
provided the Corporation with a copy thereof.
(c) Executive understands that during his employment for
the Corporation he is not to breach any obligation of confidentiality
that Executive has to a former employer or any other person or entity.
13. RECORDS. All notes, data, tapes, reference materials,
sketches, drawings, memoranda, models and records in any way relating to any of
the information referred to in Sections 8, 9 and 10 hereof (including without
limitation, any Proprietary Information) or to the Corporation's business shall
belong exclusively to the Corporation and Executive agrees to turn over to the
Corporation all such materials and all copies of such materials in his
possession or then under his control at the request of the Corporation or, in
the absence of such request, upon the termination of Executive's employment
with the Corporation.
14. REASONABLENESS OF RESTRICTIONS.
(a) Executive has carefully read and considered the
provisions of Sections 8, 9 and 10 hereof and, having done so, agrees
that the restrictions set forth therein are fair and reasonable and
are reasonably required for the protection of the interests of the
Corporation, its officers, directors, stockholders and employees.
Executive agrees that the length of time, geographic area and any
other restrictions contained in this Agreement are reasonable to
protect the legitimate interests of the Corporation and do not
unfairly restrict or penalize Executive.
(b) In the event that, notwithstanding the foregoing, any
part of the covenants set forth in Sections 8 through 13 hereof shall
be held to be invalid and unenforceable, the court so deciding may
reduce or limit the terms of such provision to allow such provision to
be enforced.
15. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such
terms, covenants or conditions, nor shall any waiver or relinquishment of any
right or power granted hereunder at any particular time be deemed a waiver or
relinquishment of such rights or power at any time or times. Each party agrees
and acknowledges that nothing herein shall be construed to prohibit the other
party from pursuing any remedies available to it for breach or threatened
breach of this Agreement, including the recovery of money damages.
16. REMEDY. Executive understands and agrees that the Corporation
will suffer irreparable harm in the event that Executive breaches any of his
obligations under this Agreement and that monetary damages will be inadequate
to compensate the Corporation for such breach. Accordingly, Executive agrees
that, in the event of a breach or threatened breach by Executive of any of the
provisions of this Agreement, the Corporation, in addition to and not in
limitation of any other rights, remedies or damages available to the
Corporation at law or in equity, shall be entitled to a permanent injunction in
order to prevent or to restrain any such breach by Executive, or by Executive's
partners, agents, representatives, servants, employers,
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employees and/or any and all persons directly or indirectly acting for or with
him; provided such injunction shall not affect Executive's ownership rights in
the Corporation or compensation earned or due Executive.
17. ATTORNEYS' FEES. In the event that it shall become necessary for
either party to retain the services of an attorney to enforce any terms under
this Agreement, the prevailing party, in addition to all other rights and
remedies hereunder or as provided by law, shall be entitled to reasonable
attorneys' fees and costs of suit.
18. SEVERABILITY. The provisions of this Agreement shall be
deemed severable, and the invalidity or unenforceability of any provision (or
part thereof) of this Agreement shall in no way affect the validity or
enforceability of any other provision (or remaining part thereof).
19. GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the State of Arkansas, without reference to
the choice of law provisions of such laws.
20. NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing and sent by certified or registered mail, return
receipt requested, first-class postage prepaid, in the case of Executive, to
his address as shown on the Corporation's records, and in the case of the
Corporation, to its principal office in the State of North Carolina.
21. BENEFIT. This Agreement shall be binding upon and shall inure
to the benefit of each of the parties hereto, and to their respective heirs,
representatives, successors and permitted assigns. This Agreement shall be
binding upon the Corporation and upon any successor corporation. Executive may
not assign any of his rights or delegate any of his duties under this Agreement
without the prior written consent of the Board of Directors of the Corporation.
22. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understandings by and between the Corporation and Executive with
respect to the covenants herein described, and no representations, promises,
agreements or understandings, written or oral, not herein contained shall be of
any force or effect. No change or modification hereof shall be valid or
binding unless the same is in writing and signed by the parties hereto. No
waiver of any provision of this Agreement shall be valid unless the same is in
writing and signed by the party against whom such waiver is sought to be
enforced; moreover, no valid waiver of any other provision of this Agreement at
any time shall be deemed a waiver of any other provision of this Agreement at
such time nor will it be deemed a valid waiver of such provision at any other
time.
23. CAPTIONS. The captions in this Agreement are for convenience
only and in no way define, bind or describe the scope or intent of this
Agreement.
24. SURVIVAL OF COVENANTS. The provisions set forth in Sections 8
through 13 hereof shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement and affixed their seals as of the day and year first above
written.
INTEGRATED SITE DEVELOPMENT, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
EXECUTIVE:
/s/ Xxx X. Xxxxxx III
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Xxx X. Xxxxxx, III
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EXHIBIT A
PRINCIPAL RESPONSIBILITIES
a. Assist CEO with identifying and qualifying new opportunities
b. Assisting with corporate marketing to service providers
c. Assist with development of strategic plans
d. Participate in the development of corporate presentations
e. Participate in strengthening and developing client
relationships at the management level
f. Oversee Metrosite Management, LLC operations
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