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EXHIBIT 10.9
THIS AGREEMENT IS SUBJECT TO THE TERMS OF (i) THAT CERTAIN SUBORDINATION
AGREEMENT, DATED AS OF OCTOBER 12, 1994, BY AND AMONG THE HOLDERS OF JUNIOR
CLAIMS, NATIONSBANK OF TEXAS, N.A., AS A HOLDER OF A SENIOR CLAIM, FIRST
INTERSTATE BANK OF TEXAS, N.A., AS A HOLDER OF A SENIOR CLAIM, AND FIRST
INTERSTATE BANK OF TEXAS, N.A., AS AGENT FOR THE HOLDER OF THE SENIOR CLAIMS,
AS AMENDED, (ii) THAT CERTAIN SELLER/BANC ONE SUBORDINATION AGREEMENT, DATED AS
OF OCTOBER 12, 1994, AS AMENDED, BY AND AMONG THE HOLDERS OF JUNIOR CLAIMS AND
BANC ONE CAPITAL PARTNERS II, LIMITED PARTNERSHIP, AS A HOLDER OF SENIOR
SUBORDINATE CLAIMS, AS AMENDED, AND (iii) THAT CERTAIN INTERCREDITOR AGREEMENT,
DATED AS OF OCTOBER 12, 1994, BY AND AMONG XXX XXXXX ENTERPRISES, XXX XXXXX,
ROMEO LAUREL AND XXXXXX X. XXXXX, SUMMIT CAPITAL INC. AND THE XXXXX-XXXXX CORP.
INCENTIVE COMPENSATION TRUST, AS AMENDED.
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of October 17,
1994, by and between Xxx Xxxxx (the "Consultant") and Xxxxx-Xxxxx Corp. (the
"Company").
W I T N E S S E T H :
WHEREAS, the Company desires to engage the Consultant to assist the
Company in its business ventures and operations thereof, and the Consultant
desires to assist the Company;
WHEREAS, the nature of the services to be provided may involve granting
the Consultant access to certain confidential information belonging to the
Company;
NOW, THEREFORE, in consideration of the premises and the compensation
and other remuneration to be paid by the Company for such consulting services
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. CONSULTING SERVICES. The Company hereby agrees to retain the
Consultant and the Consultant hereby agrees to serve the Company from October
12, 1994, through October 12, 1999, upon the terms and conditions hereinafter
set forth. During the term of this Agreement the Consultant agrees to hold
himself available to consult on a part-time basis and shall provide consulting
services to the Company from time to time, as such services are needed
provided, however, that Consultant shall not be required to provide more than
10 hours per month of consulting services to the Company pursuant to the terms
of this Agreement. The parties to this Agreement specifically acknowledge and
agree that (i) Consultant is not obligated hereunder to devote full-time to the
Company pursuant to this Agreement, (ii) Consultant will have other clients
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and businesses that require his services and (iii) the Company will act in
connection with this Agreement with due regard to such other clients and
businesses of Consultant.
2. COMPENSATION. As compensation for the Services to be rendered by
the Consultant hereunder, and without regard to whether the Company actually
avails itself of such services, the Company shall pay to the Consultant
$150,000 per year payable in twelve monthly installments of $12,500 on the
fifth day of each month, commencing on November 5, 1994.
3. DUTIES. The duties of the Consultant shall be to provide the
Company with the benefit of his experience in the tower ownership and
construction business and on various aspects of the business of Xxxxx-Xxxxx
Holdings, Inc. and its subsidiaries, as such issues should arise provided,
however that the parties agree that such services shall be provided at
Consultant's offices and Consultant shall not be obligated hereunder to travel
or attend meetings other than at Consultant's office. In addition to the
compensation provided in Section 4, if Consultant travels at the request of the
Company, the Company shall reimburse Consultant for all reasonable and
necessary travel expenses incurred.
4. DISCLOSURE OF INFORMATION. The Consultant acknowledges that the
Company's trade secrets and proprietary information and know-how, as they may
exist from time to time, are valuable, special and unique assets of the
Company's business, access to and knowledge of which are essential to the
performance of the Consultant's duties hereunder. The Consultant will not at
any time disclose such secrets, information or know-how to any person or entity
for any reason whatsoever, except as required in connection with the business
of the Company, nor shall the Consultant make use of any such property for his
own purposes or for the benefit of any person or entity (except the Company)
under any circumstances during or after the term of this Agreement, provided
that after the term of this Agreement these restrictions shall not apply to
such secrets, information and know-how which are then in the public domain
(provided that the Consultant was not responsible, directly or indirectly, for
such secrets, information or processes entering the public domain without the
Company's consent). The Consultant agrees to hold, as the Company's property,
all memoranda, books, papers, letters, processes, computer software,
algorithms, structures, source or object codes, records, financial information,
policy and procedure manuals, training and recruiting procedures and other
data, and all copies thereof and therefrom, in any way relating to the
Company's business and affairs, whether made by him or otherwise coming into
his possession, and on termination of this Agreement, or on demand of the
Company, at any time, to deliver the same to the Company.
5. REMEDIES. The Consultant and the Company agree that, because
damages at law for any breach or nonperformance of this Agreement by the
Consultant, while recoverable, are and will be inadequate, this Agreement may
be enforced in equity by specific performance, injunction or otherwise.
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6. INDEPENDENT CONTRACTOR. Consultant's status under this Agreement
shall be that of an independent contractor, and not that of an employee of the
Company. Consultant agrees that he will not make any representation whatsoever
with respect to this affiliation with the Company which is inconsistent with his
status as an independent contractor retained for the limited purposes set forth
in this Agreement.
7. MISCELLANEOUS.
(a) This Agreement is made and entered into as of the date first
above written and the rights and obligations of the parties hereto shall be
binding upon the heirs and legal representatives of the Consultant and the
successors and assigns of the Company. This Agreement may be assigned by the
Company but is personal to the Consultant, and no rights, duties, and
obligations of the consultant hereunder may be assigned, and without limiting
the foregoing, Consultant's right to receive payments hereunder shall not be
assignable or transferable, whether by pledge, creation of a security interest
or otherwise.
(b) The Consultant's obligations under Section 4 of this Agreement
shall survive the termination, for whatever reason, of the Consultant's
engagement by the Company.
(c) This Agreement supersedes, replaces and merges any and all prior
and contemporaneous understandings, representations, agreements and discussions
relating to the same or similar subject matter as that of this Agreement
between the Consultant and the Company and constitutes the sole and entire
agreement between the Consultant and the Company with respect to the subject
matter of this Agreement.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the conflict
of law principles thereof.
(e) This Agreement may not be changed or terminated orally, and no
change, termination or waiver of this Agreement or of any of the provisions
herein contained shall be binding unless made in writing and signed by both
parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXX-XXXXX CORP.
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
XXX XXXXX
/s/ XXX XXXXX
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