Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of September 2,1999, by and
between SpectraSite Holdings, Inc., a Delaware corporation (the "Company"), and
XXXXXX X. XXXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Agreement and
Plan of Merger among the Company, Westower Corporation, New W Acquisition Corp.,
SpectraSite, Inc., and W Acquisition Corp. (the "Merger Agreement"), the Company
agreed to enter into an Employment Agreement with the Employee effective as of
the date of the consummation of the Merger; and
WHEREAS, the Company desires to induce the Employee to enter
into employment with the Company for the period provided in this Agreement, and
the Employee is willing to accept such employment with the Company on a
full-time basis, all in accordance with the terms and conditions set forth
below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby agrees to employ the
Employee, and the Employee hereby agrees to accept such employment with the
Company, beginning on the date hereof and continuing for the period set forth in
Section 2 hereof, all upon the terms and conditions hereinafter set forth.
(b) The Employee affirms and represents that as
of the commencement of his employment by the Company on the date hereof he is
under no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
2. Term of Employment. (a) Unless earlier terminated as
provided in this Agreement, the term of the Employee's employment under this
Agreement shall be for a period beginning on the date hereof and ending on the
third anniversary of the date hereof (the "Initial Term").
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(b) The term of the Employee's employment under
this Agreement shall be automatically renewed for additional one-year terms
(each a "Renewal Term") upon the expiration of the Initial Term or any Renewal
Term unless the Company or the Employee delivers to the other, at least one year
prior to the expiration of the Initial Term or the then current Renewal Term, as
the case may be, a written notice specifying that the term of the Employee's
employment will not be renewed at the end of the Initial Term or such Renewal
Term, as the case may be. The period from the date hereof until the third
anniversary of said date or, in the event that the Employee's employment
hereunder is earlier terminated as provided herein or renewed as provided in
this Section 2(b), such shorter or longer period, as the case may be, is
hereinafter called the "Employment Term."
3. Duties. The Employee shall be employed as Executive Vice
President--Construction Operations of the Company, shall faithfully and
competently perform such duties as inhere in such position and shall also
perform and discharge such other executive employment duties and
responsibilities as the Board of Directors and/or the Chief Executive Officer of
the Company shall from time to time determine. The Employee shall perform his
duties principally at Surrey, British Columbia with such travel to such other
locations from time to time as the Board of Directors and/or the Chief Executive
Officer of the Company may reasonably prescribe. Except as may otherwise be
approved in advance by the Board of Directors and/or the Chief Executive Officer
of the Company, and except during vacation periods and reasonable periods of
absence due to sickness, personal injury or other disability, the Employee shall
devote his full business time throughout the Employment Term to the services
required of him hereunder. The Employee shall render his business services
exclusively to the Company and its subsidiaries during the Employment Term and
shall use his best efforts, judgment and energy to improve and advance the
business and interests of the Company and its subsidiaries in a manner
consistent with the duties of his position. Nothing contained in this Section 3
shall preclude the Employee from performing services for charitable or
not-for-profit community organizations, provided that such activities do not
interfere with the Employee's performance of his duties and responsibilities
under this Agreement.
4. Salary. As compensation for the performance by the Employee
of the services to be performed by the Employee hereunder during the Employment
Term, the Company shall pay the Employee a base salary at the annual rate of One
Hundred Sixty-Five Thousand Dollars ($165,000) (said amount, together with any
increases thereto as may be determined from time to time by the Board of
Directors of the Company in its sole discretion, being hereinafter referred to
as "Salary"). Any Salary payable hereunder shall be paid in regular intervals in
accordance with the Company's payroll practices from time to time in effect.
5. Benefits. During the Employment Term, the Employee
shall:
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(i) be eligible to participate in employee
fringe benefits and pension and/or profit sharing plans that may be
provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from
time to time;
(ii) be eligible to participate in any medical
and health plans or other employee welfare benefit plans that may be
provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from
time to time;
(iii) be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
its senior executive officers, provided that such number of paid vacation
days in each calendar year shall not be less than twenty work days (four
calendar weeks); the Employee shall also be entitled to all paid holidays
given by the Company to its senior executive officers;
(iv) be eligible for consideration by the Board
of Directors of the Company for awards of stock options under any stock
option plan which may be established by the Company for its and its
subsidiaries' key employees, the amount, if any, of shares for which
options may be granted to Employee to be in the sole discretion of the
Board of Directors of the Company;
(v) be entitled to sick leave, sick pay and
disability benefits in accordance with any Company policy that may be
applicable to senior executive employees from time to time; and
(vi) be entitled to reimbursement for all
reasonable and necessary out-of-pocket business expenses incurred by the
Employee in the performance of his duties hereunder in accordance with the
Company's normal policies from time to time in effect (including, without
limitation, relocation expenses).
6. Confidential Information. The Employee hereby covenants,
agrees and acknowledges as follows:
(a) The Employee has and will have access to and
will participate in the development of or be acquainted with confidential or
proprietary information and trade secrets related to the business of the Company
and any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not limited to
(i) customer lists; claims histories, adjustments and settlements and related
records and compilations of information; the identity, lists or descriptions of
any new customers, referral sources or organizations;
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financial statements; cost reports or other financial information; contract
proposals or bidding information; business plans; training and operations
methods and manuals; personnel records; software programs; reports and
correspondence; and management systems, policies or procedures, including
related forms and manuals; (ii) information pertaining to future developments
such as future marketing or acquisition plans or ideas, and potential new
business locations; (iii) confidential or non-public information relating to
business operations and strategic plans of third parties with which the
Companies have or may be assessing commercial arrangements, including, without
limitation, site build and deployment plans and schedules, search ring and site
locations or potential locations, actual or projected wireless system
subscribers and capital expenditures and operating cost information ("Third
Party Information") and (iv) all other tangible and intangible property, which
are used in the business and operations of the Companies but not made public.
The information and trade secrets relating to the business of the Companies
described hereinabove (including Third Party Information) in this paragraph (a)
are hereinafter referred to collectively as the "Confidential Information,"
provided that the term Confidential Information shall not include any
information (x) that is or becomes generally publicly available (other than as a
result of violation of this Agreement by the Employee), (y) that the Employee
receives on a nonconfidential basis from a source (other than the Companies or
their representatives) or, in the case of Third Party Information, from a source
(other than the Companies, the third parties to which such information relates
or their respective representatives) that is not known by him to be bound by an
obligation of secrecy or confidentiality to any of the Companies (or such third
parties, in the case of Third Party Information) or (z) that was in the
possession of the Employee prior to disclosure by the Companies (or such third
parties, in the case of Third Party Information).
(b) The Employee shall not disclose, use or make
known for his or another's benefit any Confidential Information or use such
Confidential Information in any way except as is in the best interests of the
Companies in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third party
and applicable law or judicial process, but only after providing immediate
notice to the Company at any third party's request for such information, which
notice shall include the Employee's intent with respect to such request.
(c) The Employee acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Companies shall be
entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach by the Employee (and
the Employee hereby waives any requirement that any of the Companies provide a
bond or other security in connection with the issuance of any such injunction);
provided, however, that nothing contained
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herein shall be construed as prohibiting the Companies from pursuing any other
rights and remedies available for any such breach or threatened breach.
(d) The Employee agrees that upon termination of
his employment with the Company for any reason, the Employee shall forthwith
return to the Company all Confidential Information in whatever form maintained
(including, without limitation, computer discs and other electronic media).
(e) The obligations of the Employee under this
Section 6 shall, except as otherwise provided herein, survive the termination of
the Employment Term and the expiration or termination of this Agreement.
(f) Without limiting the generality of Section
10 hereof, the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors and legal
representatives.
7. Termination. (a) The Employee's employment hereunder
shall be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) the Employee's inability to perform his
duties on account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, within any period of
twelve (12) consecutive months;
(iii) the Company giving written notice, at any
time, to the Employee that the Employee's employment is being terminated
"for cause" (as defined below);
(iv) the Company giving written notice, at any
time, to the Employee that the Employee's employment is being terminated
other than pursuant to clause (i), (ii) or (iii) above; or
(v) the Employee terminates his employment
hereunder for any reason whatsoever (whether by reason of retirement,
resignation or otherwise).
The following actions, failures and events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) a conviction of the Employee of, or the entering of a plea of
nolo contendere by the Employee with respect to, a felony, (B) dependence on, or
habitual abuse of, controlled substances or alcohol (in the case of alcohol
abuse, that has a material adverse affect on
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Employee's performance of his obligations under this Agreement) or acts of
dishonesty by the Employee that are materially detrimental to one or more of the
Companies, (C) wilful misconduct by the Employee that materially damages the
business of one or more of the Companies, (D) gross negligence by the Employee
in the performance of, or wilful disregard by the Employee of, his material
obligations under this Agreement or otherwise relating to his employment, which
gross negligence or wilful disregard continues unremedied for a period of
fifteen (15) days after written notice thereof to the Employee or (E) failure by
the Employee to obey the reasonable and lawful orders and policies of the Board
of Directors and/or the Chief Executive Officer that are material to and
consistent with the provisions of this Agreement (provided that, in the case of
an indictment described in clause (A) above, and in the case of clauses (B), (C)
and (E) above, the Employee shall have received written notice of such proposed
termination (which notice shall state the Sections of this Agreement pursuant to
which such termination is being effected and a description of the facts
supporting such termination) and a reasonable opportunity (together with the
Employee's counsel to discuss the matter with the Board of Directors of the
Company, followed by a notice that the Board of Directors of the Company adheres
to its position).
(b) In the event that the Employee's employment
terminates pursuant to clause (i) or (ii) of Section 7(a) above or is terminated
by the Company pursuant to clause (iv) of Section 7(a) above, whether during the
Initial Term or during any Renewal Term pursuant to Section 2(b) above, then (i)
during the period beginning on the date of such termination and ending on the
last day of the Applicable Period (as defined in Section 9(a)), the Company
shall pay to the Employee, as severance pay or liquidated damages or both,
monthly payments equal to one-twelfth of the rate per annum of his Salary at the
time of such termination provided, however, that no such payments shall be
required to be made if the Employee fails to comply with his obligations under
Section 9 below and (ii) the Company shall continue to provide the Employee with
the health insurance benefits provided to other employees of the Company
(including employer contributions) from the date of such termination until the
earlier to occur of (x) the last day of the Applicable Period or (y) the date
upon which the Employee becomes eligible for coverage under the health insurance
plan of another employer
(c) Notwithstanding anything to the contrary
expressed or implied herein, except as required by applicable law and except as
set forth in Section 7(b) above, the Company (and its affiliates) shall not be
obligated to make any payments to the Employee or on his behalf of whatever kind
or nature by reason of the Employee's cessation of employment (including,
without limitation, by reason of termination of the Employee's employment by the
Company's for "cause"), other than (i) such amounts, if any, of his Salary as
shall have accrued and remained unpaid as of the date of said cessation and (ii)
such other amounts, if any, which may be then
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otherwise payable to the Employee pursuant to the terms of the Company's
benefits plans.
(d) No interest shall accrue on or be paid with
respect to any portion of any payments hereunder.
8. Non-Assignability. (a) Neither this Agreement nor any right
or interest hereunder shall be assignable by the Employee or his beneficiaries
or legal representatives without the Company's prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity.
(b) Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or to
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
9. Restrictive Covenants.
(a) Competition. During the Employment Term and
during the Applicable Period (as defined below), the Employee will not directly
or indirectly (as a director, officer, executive employee, manager, consultant,
independent contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be connected with
any business or organization which engages in competition with any of the
Companies within the meaning of Section 9(d), provided, however, that the
provisions of this Section 9(a) shall not be deemed to prohibit the Employee's
ownership of not more than two percent (2%) of the total shares of all classes
of stock outstanding of any publicly held company, or ownership, whether through
direct or indirect stock holdings or otherwise, of one percent (1%) or more of
any other business. For purposes of this Agreement, the "Applicable Period"
shall mean the twelve (12) month period following the termination of the
Employee's employment hereunder for any reason whatsoever.
(b) Non-Solicitation. During the Employment
Term and during the Applicable Period, the Employee will not directly or
indirectly induce or attempt to induce any management employee of any of the
Companies to leave the employ of the Company or such subsidiary or affiliate, or
in any way interfere with the relationship between any of the Companies and any
employee thereof.
(c) Non-Interference. During the Employment
Term and during the Applicable Period, the Employee will not directly or
indirectly hire, engage,
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send any work to, place orders with, or in any manner be associated with any
supplier, contractor or other business relation of any of the Companies if such
action would be known by him to have a material adverse effect on the business,
assets or financial condition of any of the Companies or materially interfere
with the relationship between any such person or entity and any of the
Companies.
(d) Certain Definitions.
(i) For purposes of this Section 9, a person
or entity (including, without limitation, the Employee) shall be
deemed to be a competitor of one or more of the Companies, or a person
or entity (including, without limitation, the Employee) shall be
deemed to be engaging in competition with one or more of the
Companies, if such person or entity engages in the business of
acquiring or constructing towers for telecom carriers or operators or
engaging in any other business engaged in by the Companies at the time
of termination of the Employee's employment with the Company, in
either case in the geographic region encompassing the service areas in
which any of the Companies conduct, or had an established plan to
begin conducting, their businesses at the time of termination of the
Employee's employment with the Company.
(ii) For purposes of this Section 9, no
corporation or entity that may be deemed to be an affiliate of the
Companies solely by reason of its being controlled by, or under common
control with, Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. or any of
their respective affiliates other than the Companies, will be deemed
to be an affiliate of the Companies.
(e) Certain Representations of the Employee.
In connection with the foregoing provisions of this Section 9, the Employee
represents that his experience, capabilities and circumstances are such that
such provisions will not prevent him from earning a livelihood. The Employee
further agrees that the limitations set forth in this Section 9 (including,
without limitation, time and territorial limitations) are reasonable and
properly required for the adequate protection of the current and future
businesses of the Companies. It is understood and agreed that the covenants made
by the Employee in this Section 9 (and in Section 6 hereof) shall survive the
expiration or termination of this Agreement.
(f) Injunctive Relief. The Employee acknowledges
and agrees that a remedy at law for any breach or threatened breach of the
provisions of Section 9 hereof would be inadequate and, therefore, agrees that
the Company and any of its subsidiaries or affiliates shall be entitled to
injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach (and the Employee hereby waives
any requirement that any of the Companies provide a
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bond or other security in connection with the issuance of any such injunction);
provided, however, that nothing contained herein shall be construed as
prohibiting the Company or any of its affiliates from pursuing any other rights
and remedies available for any such breach or threatened breach.
10. Binding Effect. Without limiting or diminishing the effect
of the provisions affecting assignment of this Agreement, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and assigns.
11. Notices. All notices which are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and (i) delivered personally,
(ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, (iii) sent via a nationally recognized overnight courier or
(iv) sent via facsimile confirmed in writing to the recipient, if to the Company
at the Company's principal place of business, and if to the Employee, at his
home address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13. Severability. The Employee agrees that in the event that
any court of competent jurisdiction shall finally hold that any provision of
Section 6 or 9 hereof is void or constitutes an unreasonable restriction against
the Employee, the provisions of such Section 6 or 9 shall not be rendered void
but shall apply with respect to such extent as such court may judicially
determine constitutes a reasonable restriction under the circumstances. If any
part of this Agreement other than Section 6 or 9 is held by a court of competent
jurisdiction to be invalid, illegible or incapable of being enforced in whole or
in part by reason of any rule of law or public policy, such part shall be deemed
to be severed from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and provisions
of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant
or provision.
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 term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
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15. Arbitration. With the exception of any dispute regarding
the Employee's compliance with the provisions of Sections 6 and 9 above, any
dispute relating to or arising out of the provisions of this Agreement shall be
decided by arbitration in Cary, North Carolina, in accordance with the Expedited
Arbitration Rules of the American Arbitration Association then obtaining, unless
the parties mutually agree otherwise in a writing signed by both parties. This
undertaking to arbitrate shall be specifically enforceable. The decision
rendered by the arbitrator will be final and judgment may be entered upon it in
accordance with appropriate laws in any court having jurisdiction thereof. Each
of the parties shall pay his or its own legal fees associated with such
arbitration.
16. Entire Agreement; Modifications. This Agreement
constitutes the entire and final expression of the agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements, oral
and written, between the parties hereto with respect to the subject matter
hereof. This Agreement may be modified or amended only by an instrument in
writing signed by both parties hereto.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have duly
executed and delivered this Agreement as of the day and year first above
written.
SPECTRASITE HOLDINGS, INC.
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
