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Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into
effective this 1st day of January 2001 by and between U.S. RealTel, Inc., a
Delaware corporation (the "COMPANY"), and Xxxx X. Xxxxx (the "Executive").
RECITALS
A. The Executive is to be employed as the President of the Company.
B. The Company is engaged in the business of (1) acquiring, owning,
leasing, licensing, or otherwise controlling wireless communication devices'
sites and antennae and (2) leasing, subleasing, licensing, or otherwise granting
usage rights to such sites and antennae to wireless communications licensees and
users (3) the ownership or management of the tower business (4) development of
telecommunication infrastructure for both access and placement of equipment and
technology (collectively, the "BUSINESS").
C. The Board of Directors of the Company (the "BOARD") recognizes that
the Executive can contribute to the growth and success of the Company and of the
Business, and desires to assure the Company of the Executive's employment and to
compensate him therefore.
D. The Board has determined that this Agreement will reinforce and
encourage the Executive's attention and dedication to the Company and the
Business.
E. The Executive is willing to make his services available to the
Company and on the terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. EMPLOYMENT
1.1 EMPLOYMENT AND TERM. The Company hereby agrees to employ
the Executive and the Executive hereby agrees to serve the Company on the terms
and conditions set forth herein.
1.2 DUTIES OF EXECUTIVE. During the Term of Employment under
this Agreement, the Executive shall serve as the President of the Company, and
shall exercise such power and authority as may from time to time be expected of
an executive in the position of Executive as set forth in this Agreement or
otherwise reasonably delegated to him by the Board and/or the CEO. The Executive
shall report directly to the Chief Executive Officer of the Company. The
Executive shall diligently and faithfully perform his obligations hereunder,
devote substantially all of his professional time and attention to the Business
and affairs of the
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Company, and promote the interests of the Company. It is the Executive's
intention to minimize his investment banking relationship with Access Financial
Group, Inc. Notwithstanding the foregoing or any other provision of this
Agreement, nothing provided herein shall be deemed to prohibit the Executive
from continuing to serve in his present capacity as the President - Capital
Markets of Access Financial Group, Inc., and it shall not be a breach or
violation of this Agreement for the Executive to (i) serve on corporate, civic,
or charitable boards or committees (ii) deliver lectures, fulfill speaking
engagements, or teach at educational institutions, or (iii) manage personal
investments, so long as such activities do not significantly and materially
interfere with or significantly and materially detract from the performance of
the Executive's responsibilities to the Company in accordance with this
Agreement.
2. TERM.
2.1 INITIAL TERM. The initial Term of Employment under this
Agreement, and the employment of the Executive hereunder, shall commence on
January 1, 2001 (the "COMMENCEMENT DATE"), and shall expire one (1) year
thereafter, on December 31, 2001, unless sooner terminated in accordance with
SECTION 5 hereof (the "INITIAL TERM").
2.2 RENEWAL TERMS. At the end of the Initial Term, the Term of
Employment automatically shall renew for successive one (1) year terms (subject
to earlier termination as provided in SECTION 5 hereof), unless (i) either the
Company or the Executive delivers written notice to the other during the twelfth
month of the employment agreement or the Executive's election not to renew the
Term of Employment (as defined herein) or (ii) the Company, and the Executive
have not by the end of the Initial Term mutually agreed in writing upon the
financial compensation that the Executive is to receive during such Renewal
Term. In such event, the Executive will be paid six (6) months compensation of
both his base salary and the automobile allowance.
2.3 TERM OF EMPLOYMENT AND EXPIRATION DATE. The period during
which the Executive shall be employed by the Company pursuant to the terms of
this Agreement is sometimes referred to in this agreement as the "Term of
Employment" and the date on which the Term of Employment shall expire (including
the date on which any renewal term shall expire), is sometimes referred to in
this Agreement as the "EXPIRATION DATE."
3. COMPENSATION.
3.1 BASE SALARY. The Executive shall receive a base salary at
the annual rate of One Hundred Seventy Five Thousand Dollars ($175,000) (the
"Base Salary") during the Term of Employment, with such Base Salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. [The Base Salary shall be reviewed, at
least annually, for merit increases and may, by action and in the discretion of
the Board, be increased at any time or from time to time.]
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4. EXPENSE REIMBURSEMENT AND OTHER BENEFITS.
4.1 REIMBURSEMENT OF EXPENSES. Upon the submission of proper
substantiation by the Executive, and subject to such consistent and reasonable
rules and guidelines as the Company may from time to time adopt with respect to
the reimbursement of expenses of executive personnel, the Company shall
reimburse the Executive for all reasonable expenses actually paid or incurred by
the Executive during the Term of Employment in the course of and pursuant to the
Business of the Company. Any expenses incurred by the Executive in excess of ten
thousand dollars ($10,000.00) must be approved in advance by the CEO.
4.2 COMPENSATION/BENEFIT PROGRAMS. During the term of
Employment, the Executive shall be entitled to participate in all medical,
dental, hospitalization, accidental death and dismemberment, disability, travel,
and life insurance plans and executive insurance programs, and any and all other
plans as are presently and hereinafter offered by any of the Company to its
respective executive personnel, including savings, pension, profit-sharing, and
deferred compensation plans, subject to the general eligibility and
participation provisions set forth in such plans. The Company shall maintain (a)
officers and directors liability insurance and (b) insurance covering the
Executive in the event of kidnap, xxxxxx, and extortion, each commensurate with
Company policy.
4.3 WORKING FACILITIES. During the Term of Employment, the
Company shall furnish the Executive with an office, secretarial help, and such
other facilities and services suitable to his position and adequate for the
performance of his duties hereunder. The office for the Executive shall be
located in South Florida.
4.4 AUTOMOBILE ALLOWANCE. During the Term of Employment, the
Company shall provide the Executive with an automobile allowance of One Thousand
Five Hundred Dollars ($1,500) per month (the "ALLOWANCE"), which amount is
intended to compensate Executive for wear and tear and, in addition, reimburse
the Executive for all costs of gasoline, oil, repairs, maintenance, insurance,
and other expenses incurred by Executive by reason of the use of Executive's
automobile for business from time to time.
4.5 OTHER BENEFITS. The Executive shall be entitled to such
paid vacation each calendar year during the Term of Employment as the Executive
and the CEO shall mutually agree, to be taken at such times as the Executive and
the CEO shall mutually and reasonably determine. The Executive shall receive
such additional benefits, if any, as the CEO and/or the Board shall from time to
time determine for similarly situated management members.
5. TERMINATION.
5.1 TERMINATION CLAUSE. The Company shall at all times have
the right, upon written notice to the Executive, to terminate the Term of
Employment for Cause (as defined below). For purposes of this Agreement, the
term "CAUSE" shall mean (i) an action or omission of the Executive which
constitutes a willful and material breach of, or willful and material failure or
refusal (other than by reason of his disability or incapacity) to perform his
duties under, this Agreement which is not cured within thirty (30) days after
receipt by the Executive of written notice of same, (ii) fraud, embezzlement,
misappropriation of funds, or breach of trust in connection with his services
hereunder, (iii) a conviction of any crime which involves a breach of
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trust or a felony, (iv) gross negligence in connection with the performance of
the Executive's duties hereunder, which is not cured within thirty (30) days
after receipt by the Executive of written notice of same and which the Board in
its reasonable discretion deems to be good and sufficient cause to terminate the
Executive's employment with the Company, or (v) failure by the Executive to
timely achieve the financial projections set forth for him in the "2001-2003
USRT Business Plan," a copy of which is annexed hereto as ATTACHMENT A. Any
termination for Cause shall be made by written notice to the Executive, which
notice shall set forth in reasonable detail all acts or omissions upon which the
Company is relying for such termination. The Executive shall have the right to
address the Board regarding the acts set forth in the notice of termination.
Upon termination pursuant to this SECTION 5.1, the Company shall pay to the
Executive any accrued and unpaid Base Salary through the date of termination;
PROVIDED, HOWEVER, that if the termination is made pursuant to clause (v) of
this SECTION 5.1, the Company shall also pay to the Executive a severance
payment equal to six (6) months of the annual Base Salary and of the Allowance
at the time of such termination. Upon any termination effected and compensated
pursuant to this SECTION 5.1, the Company shall also pay reimbursement for
reasonable business expenses incurred prior to the date of termination, subject,
however, to the provisions of SECTION 4.1.
5.2 DISABILITY. In the event the Executive shall be unable, or
fail, to perform the essential functions of his position, with or without
reasonable accommodation, for any period of six (6) months or more, the Company
shall have the option, in. accordance with applicable law, to terminate this
Agreement upon written notice to the Executive. Upon termination pursuant to
this SECTION 5.2., the Company shall (i) pay to the Executive any accrued and
unpaid Base Salary through the effective date of termination specified in such
notice, and (ii) pay to the Executive a severance payment equal to six (6)
months of the Executive's Base Salary and of the Allowance at the time of the
termination of the Executive's employment with the Company. Upon any termination
effected and compensated pursuant to this SECTION 5.2, the Company shall also
pay reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however, to the provisions of SECTION 4.1.
5.3 DEATH. Upon the death of the Executive during the Term of
Employment, the Company shall pay to the estate of the deceased Executive any
accrued and unpaid Base Salary through the Executive's date of death. Upon any
termination effected and compensated pursuant to this SECTION 5.3, the Company
shall also pay reimbursement for reasonable business expenses incurred prior to
the date of termination, subject, however, to the provisions of SECTION 4.1.
5.4 TERMINATION WITHOUT CAUSE. At any time the Company shall
have the right to terminate the Term of Employment by written notice to the
Executive providing that the Company pays the Executive, upon providing notice,
the present value of any remaining balance due of his base salary and automobile
allowance that is still owed in the eighteen month period of this contract using
a discount rate of the prime rate plus two percent (2%). Upon any termination
pursuant to this SECTION 5.4 (that is not under any OF SECTIONS 5.1. 5.2. 5.3,
5.5 OR 5.6), the Company shall (i) pay to the Executive any accrued and unpaid
Base Salary through the date of termination set forth in the notice (or such
later date as required by the notice provisions
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of this Agreement), and (ii) pay to the Executive a severance payment equal to
six (6 months of the Executive's Base Salary and of the Allowance at the time of
the termination of the Executive's employment with the Company. Upon any
termination effected and compensated pursuant to this SECTION 5.4, Company shall
also pay reimbursement for reasonable business expenses incurred prior to the
date of termination, subject, however, to the provisions of SECTION 4.1.
5.5 TERMINATION BY EXECUTIVE.
a. The Executive shall at all times have the right,
by written notice not less than sixty (60) days prior to the termination date,
to terminate his Employment Term.
b. Upon termination of the Term of Employment
pursuant to this SECTION 5.5, the Company shall (i) pay to the Executive any
accrued and unpaid Base Salary through the effective date of termination
specified in such notice. Upon any termination effected and compensated pursuant
to this SECTION 5.5(b), the Company shall also pay reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however,
to the provisions of SECTION 4.1.
5.6 SURVIVAL. The provisions of this ARTICLE 5 shall survive
the termination or expiration of this Agreement, as applicable.
6. CONFIDENTIALITY, NONSOLICITATION, AND NONCOMPETITION.
6.1 CONFIDENTIAL INFORMATION. The Executive shall not at any
time divulge, communicate, use to the detriment of the Company or for the
benefit of any other person or persons, or misuse in any way, any Confidential
Information (as defined below) pertaining to the Company and/or the Business.
Any Confidential Information or data now or hereafter acquired by the Executive
with respect to the Company and/or the Business (which shall include; but not be
limited to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, sources of leads, and methods of doing
business) shall be deemed a valuable, special, and unique asset of the Company
that is received by the Executive in confidence and as a fiduciary, and the
Executive shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement. "CONFIDENTIAL INFORMATION" means
information disclosed to the Executive or known by the Executive as a
consequence of or through the unique position of his employment with the Company
(including information conceived, originated, discovered, or developed by the
Executive) prior to or after the date hereof, and not generally or publicly
known, about the Company or the Business. Notwithstanding the foregoing, nothing
herein shall be deemed to restrict the Executive from disclosing Confidential
Information to the extent required by law.
6.2 NONSOLICITATION OF EMPLOYEES. At all times while the
Executive is employed by the Company and for the six (6) month period
immediately following the termination of the Executive's employment with the
Company for any reason, the Executive shall not, directly or indirectly, for
himself or for any other person, firm, corporation, partnership, association, or
other entity employ any employee or former employee of the Company, unless
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such employee or former employee has not been employed by the Company for a
period in excess of six (6) months. Notwithstanding the foregoing, no provision
of this Agreement shall be deemed to bar the Executive, from so employing
Xxxxxxxxx Xxxxxx or causing such third party employment of her.
6.3 NONCOMPETITION. At all times while the Executive is
employed by the Company and for the one (1) year period immediately following
the termination of this Agreement by the Executive or by the Company for Cause,
the Executive will not (i) manage, operate, participate in the ownership or
operation of;, act as agent of, or, with or without compensation and whether as
employee or independent contractor or in any other capacity, render services to
a business enterprise principally engaged in the Business within Brazil,
Argentina, Chile, or such other jurisdiction(s) in which the Company has
contemplated and/or commenced to engage in the Business prior to the termination
or expiration of this Agreement (collectively, the "REGION") or (ii) call upon
or communicate with any person or entity which was a customer, contractee, or
lessor of the Company at any time within the one (1) year immediately preceding
such call or communication for the purpose of soliciting or obtaining for the
Executive's own account or for any employer, partner, co-venturer, or affiliate
of the Executive, other than the Company, any business, customer, order, or
contract related to the Business to, from, or with such person or entity or for
the purpose of diverting from the Company such business, customer, order, or
contract (iii) or cause any violation of the existing non-compete agreement with
Spectracite Holdings, Inc.
6.4 UNRESTRICTED ACTIVITIES. The Executive represents and
warrants to the Company that the Executive has the skill, expertise, and ability
to earn a living in the unrestricted activities that remain open to the
Executive.
6.5 SPECIFIC PERFORMANCE INJUNCTION. It is recognized and
hereby acknowledged by the Executive and the Company that a breach by the
Executive of any of the agreements and covenants contained in this ARTICLE 6
will cause irreparable harm or damage to the Company, the monetary amount of
which would be difficult, if not impossible, to ascertain. As a result, the
Executive and the Company agree that the Company shall have the right to seek
and obtain the remedy of specific performance and/or injunction with respect to
any violation or threatened violation of any provision of this ARTICLE 6. In the
event of an actual or threatened breach by the Executive or any person or entity
or any of the provisions set forth in this ARTICLE 6, the Company shall be
entitled to an injunction restraining the Executive and any such other person or
entity from undertaking or continuing the prohibited conduct.
6.6 SURVIVAL. The provisions of this ARTICLE 6 shall survive
the termination or expiration of this Agreement, as applicable.
7. ASSIGNMENT. Neither party shall have the right to assign or delegate
its or his rights or obligations hereunder, or any portion thereof, to any other
person.
8. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of the State of Florida,
without giving effect to the conflict-of-laws provisions thereof.
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9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings, and
arrangements, both oral and written between the Executive and the Company (or
any of their respective affiliates) with respect to such subject matter. This
Agreement may not be modified in any way unless by a written instrument signed
by each of the Company and the Executive.
10. NOTICES. All notices required or permitted to be given hereunder
shall be in writing and shall be personally delivered by courier, sent by
registered or certified mail, return receipt requested or sent by confirmed
facsimile transmission addressed as set forth herein. Notices personally
delivered, sent by facsimile, or sent by overnight courier shall be deemed given
on the date of delivery and notices mailed in accordance with the foregoing
shall be deemed given upon the earlier of receipt by the addressee, as evidenced
by the return receipt thereof, or three (3) days after deposit in the U.S. mail.
Notice shall be sent (i) if to the Company, addressed to Xxxxx Xxxx c/o U.S.
RealTel, Inc., Xxx Xxxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 00000, Attention: CEO,
and (ii) if to the Executive, to his address as reflected on the payroll records
of the Company, or to such other address as may be in accordance with this
provision.
11. BENEFIT, BINDING EFFECT. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representatives, legal representatives, successors, and, where permitted and
applicable, assigns, including, without limitation, any successor to the
Company, whether by merger, consolidation, sale of stock, sale of assets, or
otherwise.
12. SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses; provisions, sections, or articles contained in this
Agreement shall not affect the enforceability of the remaining portions of this
Agreement or any part thereof; all of which are inserted conditionally on their
being valid in law, and, in the event that any one or more of the words,
phrases, sentences, clauses, provisions, sections, or articles contained in this
Agreement shall be declared invalid, this Agreement shall be construed as if
such invalid word(s), phrase(s), sentence(s), clause(s), provision(s),
section(s), or article(s) had not been inserted. If such invalidity is caused by
length of time or size of area, or both, the otherwise invalid provision will be
considered to be reduced to a period or area which would cure such invalidity.
13. WAIVERS. The waiver by either party hereto of a breach or violation
of any term or provision of this Agreement shall not operate nor be construed as
a waiver of any subsequent breach or violation.
14. DAMAGES. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or the injunction of any
action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
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15. SECTION HEADINGS. The article, section, and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
16. CONFIRMATION. Whenever the Company is required to take action
hereunder, the Company shall act consistently and uniformly and, notwithstanding
anything herein to the contrary, failure to so act shall be interpreted against
the Company in the event of a dispute between the parties. The Executive shall
be able to interpret those acts or decisions taken by the Company to be the acts
and decisions of the Company.
17. NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the Executive, and their respective heirs, personal
representatives, legal representatives, successors, and permitted assigns, any
rights under or remedies by reason of this Agreement.
18. 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 shall constitute one and the same instrument and agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
THE COMPANY:
U.S. REALTEL, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: CEO
THE EXECUTIVE
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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