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Exhibit 10.10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made effective as of May
12, 1997, by Telesite Services LLC, an Arkansas limited liability company (the
"Corporation"), and Xxxxx Xxxx (the "Employee"), an individual residing in
Pulaski 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 Employee's demonstrated and expected experience
and service to the Corporation, the Corporation wishes to employ Employee, and
Employee 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, Employee is
expected to make new contributions and inventions of value to the Corporation
and Employee will otherwise have access to confidential and proprietary
information of the Corporation; and
WHEREAS, the Corporation desires to receive from Employee a covenant
not to disclose certain information relating to the Corporation's business and
certain other covenants.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration,
including the employment of Employee by the Corporation and the compensation
received by Employee from the Corporation from time to time, and specifically
the compensation to be received by the Employee 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 Employee and Employee
hereby accepts employment upon the terms and conditions hereinafter set forth.
Upon termination of this Agreement as provided herein, Employee's employment
with the Corporation shall immediately terminate. Employee agrees to serve as
the President of the Corporation. Employee'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, 1998, 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).
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3. DUTIES. Employee 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. Employee 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. Employee 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, Employee's
compensation shall be determined and paid as follows (all payments are subject
to required withholding):
(a) Base Salary. Employee shall receive as compensation
a salary of One Hundred Four Thousand Dollars ($104,000) for the first
calendar year of the Term to be paid consistent with the payroll
payment schedule of the Corporation. Employee'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 Employee's salary, Employee
shall receive those benefits provided from time-to-time to other
Employee employees of the Corporation. All such benefits are subject
to change from time-to-time by the Corporation without the consent of
Employee or any other employee of the Corporation. Notwithstanding
the foregoing, the Corporation shall contribute an annual amount equal
to fifty percent (50%) of the cost of dependent care coverage under
the then existing health insurance coverage plan maintained by the
Corporation.
(c) Performance Based Stock Options or Bonuses. In the
event the Corporation institutes a performance based stock option or
bonus program, Employee will be entitled to participate on a
comparable basis, taking into account the relative duties and
compensation of the top management participating in the program. Any
such benefit established would be subject to change from time-to-time
by the Corporation without the consent of Employee or any other
employee of the Corporation.
(d) Vacation. Employee 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.
(e) Business Expenses. The Corporation shall pay all
reasonable expenses incurred by Employee directly related to conduct
of the business of the Corporation, provided Employee 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.
(f) Automobile. The Corporation shall provide Employee
with the use of a leased automobile. The Corporation shall insure the
automobile under such fleet liability
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and casualty insurance policies as may be maintained by it from time
to time. Pursuant to Section 5(e) hereof, the Corporation shall pay
or reimburse Employee for fuel, tolls, parking, repairs, and other
costs and expenses reasonably and necessarily incurred by Employee in
connection with the use and operation of such automobile in the
performance of the services rendered by him hereunder.
6. TERMINATION. This Agreement shall or may be terminated, as
the case may be, upon the terms and conditions hereinafter provided.
(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 Employee 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. Upon such termination, all salary
due through the last day of the initial term or the then
current renewal term shall be paid.
(ii) At any time upon ninety (90) days prior written
notice by the Corporation or Employee to the other that this
Agreement shall be terminated. Upon such termination by
Employee, all salary due as of the date of termination shall
be paid. Upon such termination by the Corporation, all salary
due through the last day of the initial term or the then
current renewal term shall be paid.
(b) Involuntary Termination. The Corporation may
terminate this Agreement upon notice in writing to Employee "for
cause," as hereinafter defined, immediately upon written notice to
Employee. "For cause" shall mean:
(1) Any material breach of the terms of
this Agreement by Employee, or the failure of
Employee to diligently and properly perform his
duties for the Corporation which is not cured or
otherwise remedied within thirty (30) days of the
Employee's receipt of written notice alleging such
breach or failure (the foregoing cure period shall
apply only if such breach or failure is curable and
only to the first two (2) alleged breaches or
failure); or
(2) Any material failure to comply with
the policies and/or directives of the Board of
Directors which is not cured or otherwise remedied
within thirty (30) days of the Employee's receipt of
written notice alleging such failure (the foregoing
cure period shall apply only if such failure is
curable and only to the first two (2) alleged
failures); or
(3) Any dishonest or illegal action
(including, without limitation, embezzlement) or any
other action whether or not dishonest or illegal by
Employee which is materially detrimental to the
interest and
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well-being of the Corporation, including, without
limitation, harm to its reputation; or
(4) Employee 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.
Upon such termination, all salary due as of the date of termination
shall be paid.
7. CONFIDENTIALITY AND COVENANT NOT TO COMPETE.
(a) Confidentiality. Employee 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 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. Employee further acknowledges that any
information and materials received by the Corporation or Employee 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 7(a). As a material inducement to the
Corporation to continue to employ Employee and to pay to Employee
compensation as set forth herein for such services to be rendered to
the Corporation by Employee (it being understood and agreed by the
parties hereto that such compensation shall also be paid and received
in consideration hereof), Employee 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 8 hereof. The aforementioned
obligation of confidentiality and non-disclosure shall not apply when:
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(i) Public Domain. The Proprietary Information
disclosed to Employee 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 Employee, directly or indirectly, and
without fault on the part of Employee in failing to keep such
information confidential; or
(ii) Requirement of Law or Order. Disclosure is
required by law or court order or otherwise required in the
opinion of the Employee's counsel, provided Employee gives the
Corporation prior written notice of any such disclosure and
fully cooperates with the Corporation in connection with, and
use 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
Employee'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 Employee 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 Employee subsequent to the
termination of his employment with the Corporation, as
demonstrated by written records of Employee which are
contemporarily maintained.
(b) Covenant Not To Compete. It is recognized and understood
by the parties hereto that Employee, 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 Employee 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 Employee. Consequently, as material inducement
to employ Employee in the aforementioned position, Employee covenants
and agrees to the following:
(i) that at any time while engaged as an employee
of the Corporation and, if Employee voluntarily terminates
this Agreement or the Corporation terminates this Agreement
"for cause," for the period of the initial term or the then
current renewal term, 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
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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 Employee'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 Employee'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 Employee'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.
8. 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 Employee 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 Employee, managerial,
planning, 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 8(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
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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
Employee'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.
9. OWNERSHIP OF INFORMATION.
(a) Employee hereby assigns to the Corporation all of
Employee'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
Employee 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 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. Employee agrees to execute any
instruments and to do all other things reasonably requested by the
Corporation (both during and after Employee's employment with the
Corporation) in order to more fully vest in the Corporation all
ownership rights in those items thereby transferred by Employee to the
Corporation. Employee 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 Employee to assign or offer to assign his
rights in an Invention to the Corporation shall not extend or apply to
an Invention that Employee developed entirely on his own time without
using the Corporation's equipment, supplies, facility or trade secret
information
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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 Employee for the Corporation.
Employee shall bear the burden of proof in establishing that his
Invention qualifies for exclusion under this Section 9(b). With
respect to Section 9(b) it is agreed and acknowledged that during
Employee'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.
10. INDEMNIFICATION. Employee 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 Employee's prior
employers that the termination of Employee's employment with such employer,
Employee's employment by the Corporation, or use of any skills and knowledge of
Employee by the Corporation is a violation of contract or law.
11. EMPLOYEE REPRESENTATIONS.
(a) Employee 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 or knowledge does not and will not
breach any agreement to keep in confidence proprietary information
acquired by Employee in confidence or in trust prior to Employee's
employment by the Corporation. Employee represents that he has not
entered into, and agrees not to enter into, any agreement either oral
or written in conflict herewith.
(b) Employee understands as part of the consideration for
this Agreement and for Employee's employment or continued employment
by the Corporation, that Employee has not brought and will not bring
with Employee to the Corporation, or use in the performance of
Employee's responsibilities for the Corporation, any materials or
documents of a former employer which are not generally available to
the public or which did not belong to Employee prior to his employment
with the Corporation, unless Employee 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) Employee understands that during his employment for
the Corporation he is not to breach any obligation of confidentiality
that Employee has to a former employer or any other person or entity.
12. 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 7, 8 and 9 hereof (including without
limitation, any Proprietary Information) or to the Corporation's business shall
belong exclusively to the Corporation and Employee 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 Employee's employment with
the Corporation.
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13. REASONABLENESS OF RESTRICTIONS.
(a) Employee has carefully read and considered the
provisions of Sections 7, 8 and 9 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.
Employee 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 Employee.
(b) In the event that, notwithstanding the foregoing, any
part of the covenants set forth in Sections 7 through 12 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.
14. 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.
15. REMEDY. Employee understands and agrees that the Corporation
will suffer irreparable harm in the event that Employee breaches any of his
obligations under this Agreement and that monetary damages will be inadequate
to compensate the Corporation for such breach. Accordingly, Employee agrees
that, in the event of a breach or threatened breach by Employee 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 Employee, or by Employee's
partners, agents, representatives, servants, employers, employees and/or any
and all persons directly or indirectly acting for or with him; provided such
injunction shall not affect Employee's ownership rights in the Corporation or
compensation earned or due Employee.
16. 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.
17. 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).
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18. 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.
19. 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 Employee, 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.
20. 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. Employee 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.
21. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understandings by and between the Corporation and Employee 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.
22. 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.
23. SURVIVAL OF COVENANTS. The provisions set forth in Sections 7
through 12 hereof shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Employee
Employment Agreement and affixed their seals as of the day and year first above
written.
TELESITE SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Chairman
EMPLOYEE:
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
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EXHIBIT A
PRINCIPAL RESPONSIBILITIES
a. Manage the operations of Telesite Services, LLC
b. Develop responses to requests for quotation from service
providers
c. Participate in developing strategies for Telesite Services, LLC
d. Review contracts
e. Participate in strengthening and developing client
relationships at the management level
f. Coordinate inter-company projects
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