EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
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THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made as of
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February 17, 1997, between Pinnacle Towers Inc., a Delaware corporation (the
"Company"), and Xxxxxx Xxx ("Executive").
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In consideration of the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company will employ Executive, and Executive accepts
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employment with the Company, upon the terms and conditions set forth in this
Agreement, for the period beginning on the date of this Agreement and ending as
provided in Section 4 (the "Employment Period").
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2. POSITION AND DUTIES. During the Employment Period, Executive will
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render such managerial, analytical, administrative, marketing and other
executive services to the Company, its parent company, Pinnacle Holdings Inc.
("Pinnacle Holdings"), and the Subsidiaries as are from time to time necessary
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in connection with the management and affairs of Pinnacle Holdings, the Company
and the Subsidiaries, which will include acquiring, owning, constructing,
licensing, managing-for-hire, leasing, operating and divesting tower or other
communication sites and related properties (together with all reasonably related
activities, the "Business"). During the Employment Period, except as otherwise
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determined by the chief executive officer of the Company or the Board, Executive
will serve as the chief financial officer and chief accounting officer of the
Company and Pinnacle Holdings. Executive will report to the chief executive
officer of the Company and the Board, and Executive will devote his best efforts
and his full business time and attention (except for permitted vacation periods
and reasonable periods of illness or other incapacity) to the business and
affairs of Pinnacle Holdings, the Company and the Subsidiaries. Executive will
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, businesslike and efficient mariner.
3. BASE SALARY, BONUS AND BENEFITS.
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(a) Base Salary. During the Employment Period, Executive will be
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paid as base compensation for services (as in effect from time to time, the
"Base Salary") the amount described in this paragraph 3(a). The Base Salary
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initially will be $150,000 per annum, and will be subject to annual review and
adjustment from time to time by the Board. The Base Salary will be payable in
regular installments in accordance with the Company's general payroll practices.
In addition, during the Employment Period, Executive will be entitled to
participate in all of the employee
benefit programs for which senior executive employees of the Company are
generally eligible.
(b) Reimbursement of Expenses. The Company will reimburse Executive
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for all reasonable expenses incurred by him in the course of performing his
duties under this Agreement and which are consistent with the Company's policies
in effect from time to time with respect to travel, entertainment and other
business expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
(c) Bonus. In addition to the Base Salary, the Company (by action of
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the Board) may, in its sole discretion, award a bonus (the "Bonus") to Executive
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following the end of each fiscal year during the Employment Period based upon
Executive's performance and the Company's and the Subsidiaries' operating
results during such fiscal year. The amount of the Bonus, if any, will be
determined, and may be adjusted, from time to time as the Board may determine.
(d) Fringe Benefits. In addition to the Base Salary and Bonus,
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Executive will be entitled to the following benefits during the Employment
Period, unless otherwise modified by the Company (by action of the Board):
(i) at the Company's expense, the use of an automobile supplied
by the Company; and
(ii) medical insurance and disability insurance of such coverage
as is determined by the Board.
4. TERMINATION. The Employment Period will continue until Executive's
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resignation, death or disability or other incapacity (as determined by the Board
in good faith) or until the Employment Period is terminated by the Company (by
action of the Board) for any reason or for no reason. In the event of
Executive's resignation, death, disability or other incapacity or the
termination of the Employment Period by the Company for Cause (as defined
below), Executive will not be entitled to receive his Base Salary or any fringe
benefits or Bonus for periods after the termination of the Employment Period.
In the event of termination of the Employment Period by the Company for any
other reason or for no reason, Executive will be entitled to receive his Base
Salary (at the rate then in effect) and the medical insurance benefits described
in paragraph 3(d)(ii) for a period of six months thereafter (so long as
Executive is not in breach of paragraph 6 or paragraph 7). For purposes of this
Agreement, "Cause" will mean (i) the commission of a felony or a crime involving
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moral turpitude or the commission of any act involving dishonesty, disloyalty or
fraud with respect to Pinnacle Holdings, the Company or any Subsidiary, (ii)
conduct tending to bring Pinnacle Holdings, the Company or any Subsidiary into
substantial public disgrace or disrepute, (iii) substantial and repeated failure
to perform duties
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as reasonably directed by the Board, (iv) gross negligence or willful misconduct
with respect to Pinnacle Holdings, the Company or any Subsidiary or (v) any
other material breach of this Agreement which is not cured within fifteen (15)
days after written notice thereof to Executive.
5. RESIGNATION AS OFFICER OR DIRECTOR. Upon the termination of the
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Employment Period, Executive will resign each position (if any) that he then
holds as an officer or director of Pinnacle Holdings, the Company or any
Subsidiary.
6. CONFIDENTIAL INFORMATION. The Executive acknowledges that the
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information, observations and data which has been or may be obtained by him
while employed by the Company concerning the business or affairs of Pinnacle
Holdings, the Company or any Subsidiary (collectively, "Confidential
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Information") are and will be the property of Pinnacle Holdings, the Company and
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the Subsidiaries. Therefore, Executive agrees that he will not disclose to any
unauthorized Person or use for his own account any Confidential Information
without the prior written consent of the Company (by the action of the Board),
unless and to the extent that the aforementioned matters become generally known
to and available for use by the public other than as a result of Executive's
acts or omissions to act. Executive will deliver to the Company at the
termination of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) containing or
relating to Confidential Information or the business of Pinnacle Holdings, the
Company or any Subsidiary which he may then possess or have under his control.
7. NON-COMPETE, NON-SOLICITATION.
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(a) Non-Compete. Executive acknowledges that in the course of his
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employment with the Company he has and will become familiar with trade secrets
and other confidential information concerning Pinnacle Holdings, the Company or
any Subsidiary, and their predecessors, and with investment opportunities
relating to the Business, and that his services will be of special, unique and
extraordinary value to the foregoing entities. Therefore, Executive agrees
that, during the Employment Period and for two (2) years thereafter (the
Employment Period and such 2 years being the "Noncompete Period"), he will not
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directly or indirectly own, manage, control, participate in, consult with,
render services for, or in any other manner engage in, any business competing
with the business of Pinnacle Holdings, the Company or any Subsidiary, as such
businesses exist or are in process on the date of the termination of the
Employment Period, within the Target Area (the Target Area being the area which
management of the Company has proposed, as a material inducement for the
investments in the Company and Pinnacle Holdings by ABRY Broadcast Partners II,
L.P. ("ABRY Partners") and other stockholders of the Company and
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Pinnacle Holdings, as the primary region for the development and operation of
the Company's business) or in any geographical area which is outside the Target
Area and in which the Company or any Subsidiary then engages in such business or
in which the Company or any Subsidiary then has entered into or offered to enter
into a letter of intent or other agreement to acquire, operate or manage one or
more tower properties or with respect to any other transaction relating to the
Business. Nothing in this paragraph 7 will prohibit Executive from being a
passive owner of not more than 2% of the outstanding stock of a corporation of
any class which is publicly traded, so long as Executive has no active
participation in the business of such corporation. The "Target Area" means the
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states of Alabama, Florida, Georgia, Louisiana, Mississippi, North Carolina and
South Carolina.
(b) Non-Solicitation. During the Noncompete Period, Executive will
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not directly or indirectly (i) induce or attempt to induce any employee of
Pinnacle Holdings, the Company or any Subsidiary to leave the employ of such
entity, or in any way interfere with the relationship between any such entity
and any employee thereof, (ii) hire any person who was an employee of Pinnacle
Holdings, the Company or any Subsidiary at any time during the Employment
Period, or (iii) induce or attempt to induce any customer, supplier or other
business relation of Pinnacle Holdings, the Company or any Subsidiary to cease
doing business with such entity, or in any way interfere with the relationship
between any such customer, supplier or other business relation and such entity.
8. Enforcement. The Company and Executive agree that if, at the time of
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enforcement of Section 6 or 7, a court holds that any restriction stated in such
Section is unreasonable under circumstances then existing, then the maximum
period, scope or geographical area reasonable under such circumstances will be
substituted for the stated period, scope or area. Because Executive's services
are unique and because Executive has access to information of the type described
in Sections 6 and 7, the Company and Executive agree that money damages would be
an inadequate remedy for any breach of Section 6 or 7. Therefore, in the event
of a breach or threatened breach of Section 6 or 7, the Company or its
successors or assigns (or any other affected Person) may, in addition to other
rights and remedies existing in their favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or other relief in order
to enforce, or prevent any violations of, the provisions of Section 6 or 7,
without posting a bond or other security. The provisions of Sections 6, 7 and 8
are intended to be for the benefit of Pinnacle Holdings, the Company, the
Subsidiaries, their respective successors and assigns, each of which may enforce
such provisions and each of which (other than the Company) is an express third-
party beneficiary of such provisions. Sections 6, 7 and 8 will survive and
continue in full force in accordance with their terms notwithstanding any
termination of the Employment Period.
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9. REPRESENTATIONS. Executive represents and warrants to the Company that
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Executive is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other Person.
10. NOTICES. Any notice provided for in this Agreement will be in writing
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and will be either personally delivered, or mailed by first class mail, return
receipt requested, or sent by reputable overnight courier, in each case with
delivery charges or postage prepaid, to the recipient at the address indicated
below:
Notices to Executive:
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______________________
______________________
Notices to the Company:
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c/o ABRY Partners, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
or such other address or to the attention of such other Person as the recipient
party will have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
11. AMENDMENT AND WAIVER. No modification, amendment or waiver of any
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provision of this Agreement will be effective unless such modification,
amendment or waiver is approved in writing by the Company, Executive and ABRY
Partners. The failure of either to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms. The Company and
Executive intend that ABRY Partners, so long as it is a stockholder of the
Company or Pinnacle Holdings, be and is a third-party beneficiary of this
Agreement.
12. SEVERABILITY. Whenever possible, each provision of this Agreement
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will be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
will be reformed, construed and enforced in that
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jurisdiction as if such invalid, illegal or unenforceable provision had never
been contained in this Agreement.
13. ENTIRE AGREEMENT. This Agreement embodies the complete agreement and
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understanding among the parties to this Agreement with respect to the subject
matter of this Agreement and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter of this Agreement in any way.
14. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to the
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benefit of and be enforceable by the Company, ABRY Partners and Executive and
their respective assigns; provided that Executive may not assign his rights
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under this Agreement without the prior written consent of each of the Company
and ABRY Partners.
15. COUNTERPARTS. This Agreement may be executed simultaneously in two or
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more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
16. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of
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this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. As used in this Agreement, the term
"Subsidiary" refers to any corporation, partnership, limited liability company
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or other entity in which the Company or any other Subsidiary has an ownership
interest.
17. GOVERNING LAW. All issues and questions concerning the construction,
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validity, interpretation and enforcement of this Agreement will be governed by
and construed in accordance with the domestic laws of the Commonwealth of
Massachusetts, without giving effect to any choice of law or conflict provision
or rule (whether of the Commonwealth of Massachusetts or any other jurisdiction)
that would cause the laws of any jurisdiction other than the Commonwealth of
Massachusetts to be applied. In furtherance of the foregoing, the internal law
of the Commonwealth of Massachusetts will control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even if
under that juris diction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
18. NO STRICT CONSTRUCTION. The parties to this Agreement have
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participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement will be construed as if drafted jointly by the parties, and no
presumption or burden of proof will arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Executive
Employment Agreement as of the date first written above.
PINNACLE TOWERS INC.
By:__________________________________
Its:_________________________________
_____________________________________
Xxxxxx Xxx
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