Exhibit 10.8
AGREEMENT dated as of November 18, 1998 between MASTEC, INC. (the
"Company") and XXXX X. XXXXXX (the "Executive").
The Executive is skilled in financial matters and possesses
knowledge of the business, products and operations of the Company. The Executive
and the Company believe that it is in their respective interests to enter into
an employment agreement whereby, for the consideration specified herein,
including options to purchase shares of Common Stock of the Company, $.10 par
value (the "Common Stock"), Executive shall provide the services specified
herein.
ACCORDINGLY, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties agree as follows:
SECTION 1. EMPLOYMENT OF EXECUTIVE.
The Company hereby employs the Executive and the Executive
hereby accepts such employment upon the terms and conditions hereinafter set
forth.
SECTION 2. TERM.
The Executive's employment hereunder shall be for the period
(the "Employment Period") commencing on the date hereof (the "Commencement
Date") and ending on (a) the second anniversary of the date hereof, or (b) such
earlier date upon which the employment of the Executive shall terminate in
accordance with the provisions hereof (the date of termination being hereinafter
called the "Termination Date"). The Employment Period may be extended by
agreement of the Company and the Executive.
SECTION 3. SERVICES; OFFICES.
(a) The Executive shall be the Vice Chairman of the Company. The Executive shall
direct and supervise the finance, administrative and mergers and acquisitions
activities of the Company. The Executive shall report only directly to the
Chairman of the Board of Directors of the Company (the "Board") or to the Board
as a whole. The Company shall maintain for the Executive's exclusive use an
office at the Company's headquarters facility in Miami, Florida and shall
provide secretarial and other support personnel for the Executive, in each case
commensurate with the Executive's status as an executive officer equal to or
higher than all other executive officers of the Company with the exception of
the Chairman of the Company. The Company shall also maintain for the Executive
an office in New York City.
(b) The Company shall use its best efforts to assure that the Executive is
elected a member of the Board. If the stockholders of the Company fail during
the Employment Period to elect the Executive as a director or the Board shall
fail to elect him as a member of the executive committee of the Board or shall
remove him from that office other than a Termination for Cause, the Executive
shall continue to receive the Salary (as defined herein) and the Executive
Option (as defined herein) pursuant to this Employment Agreement.
SECTION 4. TIME TO BE DEVOTED TO COMPANY; NO SERVICES FOR COMPETITOR.
During the Employment Period, the Executive shall devote such
working time, attention and energies as he, in his discretion, deems reasonably
necessary for the business of the Company and any subsidiaries ("Subsidiaries").
The Company acknowledges that the Executive currently is a director of other
companies and is a consultant to various other businesses. The Executive may,
without restriction, carry on his current activities of this nature and any
other activities that he deems appropriate during the Employment Period.
However, notwithstanding the foregoing, the Executive shall not during the
Employment Period be employed by or provide paid consulting services for any
enterprise engaged in a business that competes with the Company. The Executive
resides in New York City, and the Company shall not request or require him to
change residences. The Executive may from time to time provide services
hereunder to the Company at its headquarters in Miami, Florida and at its other
locations.
SECTION 5. COMPENSATION; BONUS.
(a) Upon the execution hereof, the Company shall pay to the Executive as
compensation for services previously rendered a fee of $100,000.
(b) The Company shall pay to the Executive as compensation for services rendered
during the Employment Period a salary of not less than $300,000 per year (the
"Salary"). The Salary shall be paid in semi-monthly installments of $12,500,
subject to withholding of taxes and other deductions required by law.
Notwithstanding anything to the contrary contained herein, the Salary payable
for services rendered during the first twelve months of the Employment Period
shall be paid by the Company to the Executive in any event.
(c) In addition to the Salary, the Company shall pay the Executive a cash
bonus (each, a "Bonus") as follow:
(i) if the price per share of the Common Stock reaches $26 or more (determined
in accordance with clause (f) below) on the last trading day of a calendar year
or for any period of 5 consecutive trading days in the month of December in such
year (the "First Threshold Pricing Period") during the Employment Period, then
the Company shall pay to the Executive a Bonus of $300,000 in January next
following such year; and
(ii) if the price per share of the Common Stock reaches $30 or more (determined
in accordance with clause (f) below) on the last trading day of a calendar year
or for any period of 5 consecutive trading days in the month of December in such
year (the "Second Threshold Pricing Period") during the Employment Period, then
the Company shall pay to the Executive an additional Bonus of $300,000 (for a
total of $600,000 payable under clauses (i) and (ii) of this subsection (c) as
Bonuses), in January next following such calendar year; and
(iii) in the event of a Change of Control during the Employment Period or within
180 days thereafter in a transaction initiated during the Employment Period, if
the average sale price per share of Common Stock related to the Change of
Control is $30 or more, then the Company shall pay to the Executive at the
initial closing of the Change of Control, a Bonus of $600,000. "Change of
Control" means any transaction or any event as a result of which (A) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than a trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or its Subsidiaries or a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportion as their
ownership of stock of the Company, is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Age), directly or indirectly, of
securities of the Company representing [50%] or more of the combined voting
power of the Company's then-outstanding securities; or (B) during any period of
two consecutive years (not including any period prior to the execution of this
Employment Agreement), individuals who at the beginning of such period
constitute the Board and any new director (other than a director designated by a
person who has entered into an agreement with the Company to effect a
transaction described in clauses (A) or (C) of this subsection) whose election
by the Board or nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority thereof; or (C) the shareholders of the Company
approve a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the surviving entity) at least 80% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation (either alone or in combination with new or
additional voting securities held by management of the Company and its
Subsidiaries and any trustee or other fiduciary holding securities under an
employee benefit plan of the Company and its subsidiaries); or (D) the
shareholders of the Company approve an agreement for the sale or disposition by
the Company of all or substantially all the Company's assets.
(d) In addition to the Bonuses that may be awarded pursuant to Sections 5(c)(i),
(ii) or (iii) above, the Board may, on its own initiative and in its sole
discretion, award cash or other bonuses to the Executive, whether or not any of
the performance thresholds in Section 5(c)(i), (ii) or (iii) are achieved by the
Company.
(e) In the event of a Change of Control, the Company shall pay to the Executive,
immediately upon the initial closing of the Change of Control, any unpaid
portion of the Salary in respect of the year in which the Change of Control
occurs and any bonus earned or awarded pursuant to this Employment Agreement or
otherwise awarded by the Board
(f) The price for each share shall be the Fair Value of each share. As used
herein, "Fair Value" means (i) if the Common Stock is traded on the New York
Stock Exchange or another public exchange, the average price at which the Common
Stock traded during the 10 trading days immediately prior to the event for which
Fair Value is to be calculated; (ii) if the Common Stock is available only
"over-the-counter," the average price at which the Common Stock was sold during
the 10 business days immediately prior to the event for which Fair Value is to
be calculated; or (iii) if the Common Stock is not actively traded, its value as
determined in good faith by the Board; provided, however, that if within 10 days
of the determination thereof, the Executive shall object to such fair market
value determination, the Fair Value shall be finally determined by an
independent investment banking firm mutually selected by the Company and the
Executive (or if such selection cannot be made within 10 days after one party
proposes such a firm to the other, by the American Arbitration Association in
accordance with its rules).
SECTION 6. BUSINESS EXPENSES; BENEFITS.
(a) The Company shall pay for or reimburse the Executive (at the Executive's
option), in accordance with its practice for executive officers of the Company,
all reasonable and necessary expenses and other disbursements incurred by the
Executive for or on behalf of the Company in the performance of his duties
hereunder, including, without limitation, first-class travel (including, but not
limited to, airfare) to and from the Company's office or offices on behalf of or
in connection with his services for the Company, and food and first-class
lodging expenses while the Executive is away from home performing services for
the Company. The Executive shall provide such appropriate documentation of
expenses and disbursements as may from time to time be reasonably requested by
the Company.
(b) The Executive (and his family) shall be covered under all of the Company's
group health, dental and disability plans, or, at the Company's option, the
Company shall reimburse Executive the cost of obtaining similar coverage. (c)
The Company shall lease, at its expense, an automobile exclusively for the
Executive's use. (d) The Executive shall receive any and all other benefits
accorded by the Company to executive officers of the Company. (e) The Company
shall pay for any and all attorneys' fees and related expenses incurred by the
Executive with respect to the formulation, negotiation and finalizing of this
Employment Agreement.
SECTION 7. TERMINATION FOR CAUSE.
(a) The Company may terminate the employment of the Executive hereunder at any
time for Cause (as hereinafter defined) (such termination being referred to
herein as a "Termination For Cause") by giving the Executive written notice of
such termination, with such termination to take effect upon the receipt of such
notice. "Cause" means (A) the Executive's conviction of a crime constituting a
felony or (B) any of the following performed or caused by the Executive which
may reasonably be anticipated to have a Material Adverse Effect and which, if
curable, remains uncured for a period of fifteen (15) days after written notice
thereof is delivered from the Company to the Executive: (i) the willful and
continued failure to substantially perform the duties described in Section 3
(other than any failure resulting from an illness or other similar incapacity or
disability), (ii) misappropriation of funds, properties or assets of the Company
or any of its subsidiaries, (iii) commission of a material tort relating to the
Executive's employment with the Company and (iv) breach of any fiduciary duty
owed to the Company or its subsidiaries. "Material Adverse Effect" means a
material adverse effect on the business, operations, financial condition,
results of operations, properties, assets or liabilities of the Company and its
Subsidiaries taken as a whole.
(b) Notwithstanding any provisions contained herein to the contrary, in no event
shall the Company cause a Termination for Cause without a prior hearing or at
least 45 days' notice to the Executive and approval of such Termination for
Cause by the entire Board.
SECTION 8. EFFECT OF TERMINATION FOR CAUSE.
Upon the termination of the Executive's retention hereunder
due to (a) a Termination for Cause or (b) the Executive's incapacity or
disability due to accident, sickness or otherwise so as to render him mentally
or physically incapable of performing the services required to be performed by
him for the Company for a period of four consecutive months, or for 6 months
during any twelve-month period, neither the Executive nor his beneficiary or
estate shall have any further rights or claims against the Company under this
Employment Agreement, except to receive (i) the unpaid portion, if any, of the
Salary or bonuses provided for in Section 5, computed on a pro rata basis to the
Termination Date (based on the actual number of days elapsed over a year of 365
or 366 days, as applicable), (ii) reimbursement for any expenses for which the
Executive shall not have been reimbursed as provided in Section 6, and (iii)
rights to the Options (as defined below) as provided in Section 11 hereof.
SECTION 9. OPTIONS TO PURCHASE COMMON STOCK OF THE COMPANY
The Company hereby confirms that effective as of November 18,
1998 (the "Grant Date") it, acting through its Board of Directors (the
"Executive Option"), (i) has granted to the Executive, options to purchase up to
250,000 shares of Common Stock, pursuant to a Stock Option Agreement (the
"Executive Option Agreement") dated November 18, 1998 between the Executive and
the Company, and (ii) has granted to Xxxxxx Xxxxxx options (the "Xxxxxx Option")
to purchase up to 7,500 shares of Common Stock, pursuant to a Stock Option
Agreement (together with the Executive Option Agreement, the "Option
Agreements"), on the terms and subject to the conditions set forth in Sections
10 through 13 hereof. Shares reserved under the Executive Option and the Xxxxxx
Option are called "Reserved Shares." The price for the Options per share is
equal to $20.5625, except for 4,812 shares granted as incentive stock options
under the Executive Option Agreement which are issued at $20.7813 per share.
SECTION 10. TERM.
The term of each Option commenced on the Grant Date and shall
expire on the seventh anniversary of the date hereof, unless such Option shall
theretofore have been terminated in accordance with the terms of its respective
Option Agreement.
SECTION 11. TIME OF EXERCISE.
(a) Unless accelerated as provided herein, the Executive Option shall become
exercisable on each date set forth below (each, a "Vesting Date") as to that
number of Reserved Option Shares set forth opposite such Vesting Date:
Vesting Date ..................................... No. of Reserved Option Shares
Grant Date ............................................ 66,110
May 18, 1999 ......................................... 149,564
November 18, 2000 ..................................... 34,326
(b) The Xxxxxx Option shall be immediately exercisable as of the Grant Date
(a "Vesting Date").
(c) Reserved Option Shares which vest under this Section 11 may be purchased
upon exercise of an Option and are called "Vested Option Shares" hereunder.
(d) The unvested portion of the Executive Option (i.e., that portion which
does not constitute Vested Option Shares) shall terminate or accelerate
upon a termination of the Executive's employment with the Company as follows:
(i) in the event (A) that the Executive voluntarily terminates his employment
with the Company other than a termination by the Executive under Section
3(b) of this Employment Agreement or under circumstances where the Company
has not breached or potentially breached a provision of this Employment
Agreement, or (B) of a Termination for Cause, the unvested portion of the
Executive Option shall terminate effective immediately.
(ii) in the event (A) that the Executive's employment with the Company is
terminated by the Company without Cause or (B) the Executive dies or is
incapacitated, then the unvested portion of the Option shall vest
immediately; and
(iii)in the event of a Change of Control of the Company n connection with which
the Executive's employment with the Company is terminated by the Company
for any reason within the twelve-month period immediately following such
Change of Control, any unvested portion of the Option shall accelerate and
vest in full effective as of such termination date.
SECTION 12. EXECUTIVE'S EMPLOYMENT.
The Option shall not be affected by any change of duties or
position of the Executive.
SECTION 13. NOTICES.
All notices, claims, certificates, requests, demands and other
communications relating hereto shall be in writing and shall be deemed to have
been duly given and delivered if personally delivered or if sent by
nationally-recognized overnight courier guaranteeing next business day delivery,
by telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) if to the Company, to:
Mastec, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000-0000
Telephone: 000-000-0000
Telecopy: 000-000-0000
Attention: Xxxxx Mas; and
(b) if to the Executive, to:
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx, 00xx XX
Xxx Xxxx, Xxx Xxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery (or if not delivered during
regular business hours on such day, on the next business after the date sent),
(ii) in the case of nationally-recognized overnight courier, on the next
business day after the date sent, (iii) in the case of telecopy transmission,
when received (or if not received during regular business hours on such day, on
the next business day after the date sent), and (iv) in the case of mailing, on
the third business day following that on which the piece of mail containing such
communication is posted.
SECTION 14. ENFORCEMENT; SEVERABILITY; ETC.
It is the desire and intent of the parties that the provisions
of this Employment Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Employment Agreement shall be adjudicated to be invalid or unenforceable, such
provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made.
SECTION 15. BINDING AGREEMENT; BENEFIT.
The provisions of this Employment Agreement will be binding
upon, and will inure to the benefit of, the respective heirs, legal
representatives, successors and assigns of the parties.
SECTION 16. WAIVER OF BREACH.
The waiver by either party of a breach of any provision of
this Employment Agreement must be in writing and shall not operate or be
construed as a waiver of any other breach.
SECTION 17. ENTIRE AGREEMENT; AMENDMENTS.
This Employment Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements or understandings between the parties with respect thereto.
This Employment Agreement may be amended only by an agreement in writing signed
by the parties.
SECTION 18. HEADINGS.
The section headings contained in this Employment Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Employment Agreement.
SECTION 19. ASSIGNMENT.
This Employment Agreement is personal in its nature and the
parties shall not, without the consent of the other, assign or transfer this
Employment Agreement or any rights or obligations hereunder; provided, however,
that the Company may assign this Employment Agreement to any of its affiliates
and the provisions of this Employment Agreement shall inure to the benefit of,
and be binding upon, each successor of the Company, whether by merger,
consolidation, transfer of all or substantially all of its assets, or otherwise.
SECTION 20. COUNTERPARTS.
This Employment Agreement may be executed in counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
Xxxx X. Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this
Employment Agreement effective as of the date first above written.
MASTEC, INC.
By: /s/ Xxxxx Mas
-----------------
Name: Xxxxx Mas
Title: President and Chief Executive Officer
By: /s/ Xxxx-Xxxxx Xxxxxx
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Xxxx-Xxxxx Xxxxxx
