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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made this 14th day of
November, 1997, by and between FWT, Inc. (the "Company"), and Xxxxxxx X.
Xxxxxxxx (the "Executive").
PRELIMINARY STATEMENTS
A. On and subject to the terms and conditions herein provided,
the Company desires to retain the services of the Executive in the capacities
and with the responsibilities and the titles set forth herein in order to
ensure the attention and dedication to the Company of the Executive as the
Company's Chief Operations Officer and President-Tower and Monopole Division,
all of which the Company's Board of Directors (the "Board") believes will be in
the best interests of the Company and its stockholders.
B. The Executive desires to commit himself to so serve the
Company.
C. In order to effect the foregoing, the Company and the
Executive wish to enter into an employment agreement on the terms and
conditions set forth herein.
Accordingly, in consideration of these preliminary statements and the
respective covenants and agreements of the parties herein contained, and for
other good, valid and binding consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
STATEMENT OF AGREEMENT
1. Employment. The Company hereby agrees to employ the
Executive, and the Executive hereby accepts such employment on the terms and
conditions set forth herein.
2. Term. The employment of the Executive by the Company shall
commence on the date hereof and end on December 31, 2000 (the "Term") unless
earlier terminated as provided herein.
3. Positions and Duties. The Executive shall serve as the Chief
Operations Officer and President-Tower and Monopole Division of the Company and
shall have such additional positions, if any, from time to time as may be
assigned to the Executive by the Board. The Executive shall report and be
responsible to the Board of the Company. The Executive shall devote
substantially all his working time and efforts to the business and affairs of
the Company.
4. Place of Performance. The Company maintains its principal
office in Fort Worth, Texas, where Executive shall fulfill his responsibilities
hereunder except for required travel in the course of the Company's business.
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5. Compensation and Related Matters.
(a) Salary. During the term of this Agreement, the Company shall pay
to the Executive an annual base salary of Two Hundred Fifty Thousand
Dollars ($250,000) ("Base Salary"), such Base Salary to be payable in
accordance with the Company's ordinary payroll practices.
(b) Bonus. In addition to his Base Salary, the Executive shall be
entitled to receive a bonus ("Bonus") computed and payable with respect to
each fiscal year ending December 31 (a "Calculation Period") commencing
with the Calculation Period ending December 31, 1998, based on the ratio of
the Company's actual EBITDA (as defined below) for such Calculation Period
to the Targeted EBITDA (as defined below) for such Calculation Period in
accordance with the following:
(i) if Company's actual EBITDA is greater than or equal to
seventy-five percent (75%), but less than one hundred percent
(100%) of Targeted EBITDA for any Calculation Period, the
Executive's Bonus for such Calculation Period shall be a
percentage of Executive's Base Salary determined in accordance
with the following formula:
A=50+(2x(B-75%))
(ii) if Company's actual EBITDA is greater than or equal to one
hundred percent (100%), but less than one hundred ten percent
(110%) of Targeted EBITDA for any Calculation Period, the
Executive's Bonus for such Calculation Period shall be a
percentage of Executive's Base Salary determined in accordance
with the following formula:
A=100+(B-100%)
(iii) if Company's actual EBITDA is greater than or equal to one
hundred ten percent (110%), but less than one hundred twenty
five percent (125%) of Targeted EBITDA for any Calculation
Period, the Executive's Bonus for such Calculation Period shall
be a percentage of Executive's Base Salary determined in
accordance with the following formula:
A=110+(1.8333x(B-110%))
(iv) if Company's actual EBITDA is greater than one hundred twenty
five percent (125%) of Targeted EBITDA for any calculation
period, the Bonus shall be a percentage of Executive's Base
Salary determined in accordance with the following formula:
A=137.5+(B-125%)
As used in each formula set forth in clauses (i) through (iv) above,
"A" equals the percentage of the Executive's Base Salary which is the
amount of the
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Bonus and "B" equals the percentage of Targeted EBITDA actually
achieved by the Company for such Calculation Period.
The Bonus shall be due and payable as soon as practicable following
delivery of the Company's financial statements for the Calculation Period
for which the Bonus is payable, but in no event later than sixty (60) days
following the end of the Calculation Period for which the Bonus is payable.
Any Bonus to which Executive is entitled under this Agreement shall be
payable on the date specified in this paragraph even though the Term of
Executive's employment with the Company may terminate prior to the date
such Bonus is payable hereunder.
As used in this Section 6(b), Targeted EBITDA shall mean with respect to
each Calculation Period, an amount determined by a majority vote of the
Compensation Committee of the Board of Directors of the Company which will
consist of Xxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx and Xxx X. Xxxxx; provided,
however, in no event shall the Targeted EBITDA for any Calculation Period
exceed the EBITDA target for the same Calculation Period established
pursuant to the terms of the Financial Advisory Agreement between the
Company and Xxxxx Capital Corp. As used in this Section 5, EBITDA shall
mean the consolidated net income for such Calculation Period which would be
reflected on a consolidated income statement of the Company for such
Calculation Period prepared in accordance with generally accepted
accounting principles, (A) plus, the sum of, but without duplication and
only to the extent deducted in determining consolidated net income for such
period, (1) all income tax expense, (2) all interest expense (including
imputed interest with respect to capital leases), (3) all amortization
expense, (4) all depreciation expense, (5) all financial advisory fees,
management fees, consulting fees, bonuses and similar fees and amounts paid
or payable by the Company and its Subsidiaries with respect to such
Calculation Period (including without limitation all of the foregoing
payable to Xxxxx Communications Fund, L.P.), (6) other noncash items
reducing consolidated net income and (7) any items of extraordinary loss,
and (B) minus any items of extraordinary gain.
(c) Vehicle Allowance. During the term of Executive's
employment hereunder, Executive shall receive from the Company an
automobile allowance in the amount of $500.00 per month.
(d) Expenses. During the term of the Executive's employment
hereunder, the Company shall upon submission of reasonable
documentation of such expense incurrence in accordance with the
standard policies and procedures established by the Company,
reimburse the Executive for all reasonable expenses incurred by the
Executive on the Company's behalf.
(e) Other Benefits. During the term of the Executive's
employment hereunder, the Executive shall be entitled to participate in
all of the Executive benefit plans available to the most senior
executive officers of the Company (including, without limitation, the
Company's health insurance, life insurance, dental insurance, long-term
disability insurance, 401(k) and cafeteria plans, if any.
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(f) Vacations. The Executive shall be entitled to three (3) weeks of
vacation in each calendar year. In addition, the Executive shall also be
entitled to all paid holidays given by the Company to its senior
executives.
(g) Services Furnished. The Company shall furnish the Executive with
office space, secretarial and support staff assistance and such other
facilities, equipment, services and resources as shall be reasonably
required for the optimal performance of his duties hereunder.
(h) SARS. Concurrent with the execution of this Agreement, the
Company will enter into a Stock Appreciation Rights Agreement with the
Executive, in substantially the form of Exhibit A hereto.
(i) Relocation Costs. The Company shall pay the reasonable relocation
costs of Executive.
6. Termination. Prior to the expiration of the Term, the Executive's
employment hereunder may be terminated under the following circumstances:
(a) Death. The Executive's death.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness which incapacity cannot be reasonably
accommodated, the Executive shall have been absent from his duties
hereunder on a full-time basis for an entire period of six (6) consecutive
months, and within thirty (30) days after written notice of termination is
given (which notice may be given before or after the end of such six-month
period) Executive shall not have returned to the performance of his duties
hereunder on a full time basis.
(c) Cause. The occurrence of any act constituting "Cause." For
purposes of this Agreement, "Cause" means (i) commission by Executive of a
felony, (ii) embezzlement or fraudulent conduct by Executive, willful or
wanton, and gross negligence of Executive in the performance of his duties
to the Company, (iv) failure or refusal by Executive to comply in all
material respects with a lawful and reasonable directive of the Board, or
(v) failure of Executive to perform his duties in a manner reasonably
satisfactory to the Board.
(d) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive shall be communicated by
written Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment
under the provision so indicated.
(e) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by his death, the date of his death, (ii) if the
Executive's employment is terminated pursuant to subsection (b) hereof
(relating to disability), thirty (30) days
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after Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a
full-time basis during such thirty (30)-day period), (iii) if the
Executive's employment is terminated pursuant to subsection (c) hereof
(relating to Cause), the date specified in the Notice of Termination,
and (iv) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given.
7. Compensation Upon Termination or During Disability.
(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness,
which incapacity cannot be reasonably accommodated, the Executive shall
continue to receive all compensation and benefits provided for herein for
such period until his employment is terminated pursuant to Section 6(b)
hereof, and shall receive the Prorated Bonus (as herein defined) for the
portion of the Calculation Period during which his employment is terminated
occurring prior to termination. As used herein "Prorated Bonus" means for
any portion of a Calculation Period, the Bonus for such Calculation Period
multiplied by a fraction, the numerator of which is the number of days in
such portion of such Calculation Period and the denominator of which is
365.
(b) If the Executive's employment is terminated pursuant to Section
6(a) or 6(c) hereof then he shall receive no further compensation hereunder
after the Date of Termination, provided that Executive shall receive the
Prorated Bonus for the portion of the Calculation Period during which his
employment is terminated with respect to the portion of such Calculation
Period occurring prior to termination.
(c) If the Executive's employment is terminated for any other reason,
then he shall receive all compensation and benefits set forth in Section 5
hereof payable as provided herein for the remainder of the Term, including,
without limitation, all Bonus.
8. Non-competition, Non-disclosure.
(a) The Executive agrees that he will not engage in any Competitive
Activity (as defined below) during any period with respect to which he is
receiving payments or benefits of any kind or character from the Company
and for a period of two (2) years thereafter. For purposes of this Section,
"Competitive Activity" shall mean activity, without the written consent of
the Board, consisting of the Executive's participation in the management of
or as an executive of or advisor to any other business operation if such
operation (a "Competitive Operation") is then in material competition with
a principal business operation of the Company.
(b) While in the Company's employ, during any period with respect to
which Executive is receiving payments or benefits of any kind or character
from the Company and for a period of two (2) years after the termination of
any such payments or benefits, Executive agrees not to disclose to any
person not employed on a full-time basis by the Company or its affiliates,
or not engaged to render services to the Company or its affiliates, except
with the prior written consent of an officer authorized
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to act in the matter by the Board, any proprietary and confidential
information obtained by him while in the employ of the Company, provided,
however, that this provision shall not preclude the Executive from the use
or disclosure of (i) information known generally to the public, (ii)
information which was rightfully in the Executive's possession prior to
the date hereof, (iii) information rightfully acquired from a third party
able to convey it lawfully, (iv) information not generally considered
confidential by persons engaged in the business conducted by the Company
or (v) information required by law or court order to be disclosed.
9. Director and Officer Indemnification and Insurance. At all times
during the term hereof, the Company shall indemnify the Executive to the
fullest extent permitted by applicable law and shall maintain reasonable and
customary directors and officers liability insurance coverage with a reputable
and creditworthy carrier in an amount equal to at least $10 million per
occurrence.
10. Notices. For the purposes of this Agreement, notices, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given when delivered or (unless otherwise
specified) mailed by United States certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive: Xxxxxxx X. Xxxxxxxx
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
If to the Company: FWT, Inc.
X.X. Xxx 0000
Xxxxx Xxxxx, Xxxxx 00000
Attn: Xxx X. Xxxxx
With a copy to: Xxxxx Communications Fund, L.P.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
11. Prohibition on Assignment. Neither the Company nor Executive shall
assign, transfer or convey its rights or delegate its duties under this
Agreement. Any attempted assignment or delegation shall be void.
12. Modification and Amendments. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company's duly authorized
executive officer.
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13. No Waiver. No waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
14. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Texas without regard to its conflicts of law principles.
15. Validity. The invalidity or unenforceability of any provision or
provisions of this agreement shall not affect the validity or enforceability of
any other provision of this Agreement which shall remain in full force and
effect.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
17. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of any subject matter contained herein and
supersedes all prior severance or other agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, by any officer, Executive or representative of any party hereto; and
any prior agreement of the parties hereto in respect of the subject matter
contained herein is hereby terminated and canceled.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
FWT, INC.
By: /s/ XXX X. XXXXX
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Xxx X. Xxxxx, President
EXECUTIVE:
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
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