EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") dated as of June 30, 1997,
between MICROWAVE TOWER SERVICE, INC., an Oregon corporation (together with its
assigns, "MTS") and a wholly-owned subsidiary of SPECIALTY TELECONSTRUCTORS,
INC., a Nevada corporation, ("Parent") and Xxxxx X. Xxxxxxxxx ("Employee").
1. Definitions.
(a) "Confidential Information" means all information of any kind, type
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or nature (written or oral) that at any time during the employment of
Employee by MTS, either before or after the date hereof, is devised,
developed, discovered or otherwise learned of by Employee to the extent
that such information relates to MTS or its corporate parent or any of its
subsidiaries or its corporate parent's subsidiaries, or any of their
respective businesses, products, processes, properties, assets, customers,
markets, marketing strategies, management, employees, technology, know-how,
trade secrets, financial conditions or prospects.
(b) "Person" means any individual, corporation, partnership, trust,
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government or regulatory authority, or other entity.
2. Employment. MTS currently employs Employee. Subject to consummation of
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the merger (the "Merger") between Microwave Tower Service, Inc. and MTS
Acquisition, Inc., an Oregon corporation and a wholly-owned subsidiary of
Parent, from and after the Effective Date (as defined below), MTS intends to
continue to employ Employee on terms described herein, and Employee accepts
employment, upon the terms and conditions of this Agreement.
3. Term. The term of this Agreement shall begin on the later of (i) the date
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the Merger is consummated and (ii) June 30, 1997 (the "Effective Date") and
shall continue for a period of three (3) years, unless sooner terminated
pursuant to the provisions of Section 4 herein.
4. Termination. This Agreement shall terminate automatically upon the
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expiration of its term or upon the death of the Employee (provided that
Employee's estate shall be entitled to receive any earned but unpaid salary and
Bonus due Employee at the time of his/her death) or under circumstances
described in Section 13 herein. In addition, this Agreement may be terminated
by MTS or the Employee under the following circumstances:
(a) By MTS.
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(i) Termination for Cause. MTS may, in its sole discretion,
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terminate this Agreement at any time and without notice for cause.
For purposes of this Section 4 (a)(i), "cause" shall mean: (1)
Employee's conviction for any felony or crime of moral turpitude; (2)
dishonesty or disloyalty by Employee in performance of his or her
duties hereunder; (3) insubordination by Employee; (4) conduct by
Employee which jeopardizes MTS's right or ability to operate its
business; (5) Employee breach of any provision of Section 10 of this
Agreement; (6) Employee's material breach of any provision of this
Agreement other than Section 10; (7) the failure or inability of
Employee to perform his duties in a manner which is reasonably
acceptable to MTS; or (8) gross neglect of duty.
(ii) Termination Without Cause. MTS may, in its sole discretion,
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without any cause whatsoever, terminate this Agreement at any time by
providing Employee with 30 days' written notice and, at MTS's
election, may relieve Employee of his or her duties and
responsibilities immediately or at any time thereafter and without any
further notice whatsoever if MTS provides
Employee with pay until the expiration of 30 days after the date on
which MTS first gave Employee notice of MTS's intent to terminate
Employee's employment.
(b) By Employee. Employee may, in his or her sole discretion,
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without any cause whatsoever, terminate this Agreement at any time by
providing MTS with 30 days' written notice. If Employee notifies MTS of
his or her intent to terminate this Agreement pursuant to this Section
4(b), then, notwithstanding such notice, if MTS's so requests, Employee
shall continue to provide his or services to MTS pursuant to this Agreement
for a period of up to 30 days following the date on which Employee first
notified MTS of his or her intent to terminate his or her employment (or
such shorter period as MTS shall determine) and MTS will continue to
compensate Employee during such period at the rate provided herein.
5. Compensation.
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(a) Salary. MTS shall pay Employee for all services rendered to or
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on behalf of MTS a salary of $150,000 per year, payable in equal semi-
monthly installments. Federal and state income tax withholding, social
security contributions and any other taxes, deductions or assessments
required by applicable law to be withheld from Employee's salary will be
withheld from salary payments. Salary increases, if any, are at the sole
discretion of MTS.
(b) Bonus. In addition to Employee's salary, at MTS's sole
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discretion, Employee shall be eligible to receive a bonus (a "Bonus") for
each fiscal year commencing from and after July 1, 1997 during which
Employee was continuously employed by MTS for the entire fiscal year (each
such fiscal year is referred to herein as a "Bonus Eligible Year").
Employee acknowledges that, notwithstanding anything to the contrary
contained herein, he or she will become entitled to receive a Bonus in
respect of any Bonus Eligible Year only if, as and when he or she receives
written notice thereof from MTS.
6. Employee Benefits. Employee shall be entitled to participate with other
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employees of MTS in all sick pay, fringe benefit or deferred compensation plans
(other than stock option or bonus plans) as may be authorized and adopted from
time to time by MTS, subject to any applicable limitations of the service/plan
provider, plan documents and/or government rules and regulations. In addition,
Employee shall be entitled to participate with other employees of MTS and Parent
or any of its subsidiaries in all sick pay, fringe benefit or deferred
compensation plans (other than stock option plans) as may be authorized and
adopted from time to time by Parent or any of its subsidiaries for the benefit
of or participation of all employees of Parent and its subsidiaries (other than
MTS), subject to any applicable limitations of the service/plan provider, plan
documents and/or government rules and regulations.
7. Duties. Employee shall serve as President of MTS and his duties shall
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include all duties incident to the management of said position, unless otherwise
directed by MTS's Board of Directors. MTS's Board of Directors may, at any time
and from time to time, make such changes in Employee's job title and/or job
description and add to or subtract from Employee's duties hereunder as MTS's
Board of Directors shall determine.
8. Extent of Services. Employee shall devote his/her full time and attention
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to MTS's business.
9. Work Facilities. MTS will provide to Employee tools and equipment suitable
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and necessary to his/her position and appropriate for the performance of his/her
duties all of which tools must be returned to MTS upon severance or termination
of Employee's employment with MTS.
10. Disclosure of Confidential Information; Non-competition . Employee shall
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not, at any time from and after the Effective Date and throughout perpetuity,
directly or indirectly, disclose or reveal all or any portion of the
Confidential Information to any Person without the prior written consent of MTS,
except to Persons designated or employed by MTS or Parent or any of their
respective subsidiaries; and Employee shall not, directly or indirectly, use or
exploit the Confidential Information at any time from and after the Effective
Date and throughout perpetuity
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for any purpose other than in connection with Employee's employment duties and
obligations; provided, however, that the foregoing commitments relating to
disclosure shall not extend to any portion of the Confidential Information that
is now or hereafter becomes, through no act or failure to act on the part of
Employee, generally known to the industry on a non-confidential basis. Employee
acknowledges and recognizes that, MTS is engaged in a highly competitive
industry that relies heavily on its employees for its continued viability;
Employee could, after training by and experience with MTS, and after receiving
some of MTS's trade secrets and/or confidential information and gaining the
goodwill of its customers, become a competitor and divert the business and
goodwill of MTS's customers. Employee acknowledges and recognizes that Employee
will, in the course of employment, be personally entrusted with and exposed to
MTS's trade secrets and other Confidential Information and that MTS will suffer
great loss if Employee's employment were to terminate and Employee thereafter,
directly or indirectly, enters into competition with MTS. Therefore, Employee
covenants and agrees that at all times during his/her employment with MTS, and
for a period of two (2) years immediately following the termination of
Employee's employment, provided that such termination has not been by MTS
without cause, Employee will not (a) directly or indirectly, engage or
participate in any business or other activities that would directly conflict or
compete with the best interests of MTS with respect to business activities or
opportunities within the United States, (b) directly or indirectly or on behalf
of or in conjunction with any Person, call upon any customer or customers of
MTS, or anyone who had been a customer of MTS within two (2) years of Employee's
termination, for the purpose of soliciting, selling, or both, or supplying in
any way to any of said customers, any products or services similar to the
products or services sold, provided, distributed, designed or developed by MTS
or Parent or any of their respective subsidiaries. Employee agrees that at no
time during the term of his/her employment with MTS, or for a period of two (2)
years immediately following the termination of Employee's employment, whether
said termination is occasioned by MTS, Employee, or the mutual agreement of said
parties, will Employee directly or indirectly, or on behalf of or in conjunction
with any other Person, solicit for employment or employ any Person employed by
MTS or Parent or any of their respective subsidiaries at any time during the
twelve-month (12-month) period immediately preceding such solicitation of
employment.
The parties hereto, recognizing that irreparable injury will result to MTS,
its business and property, in the event of a breach of the provisions of this
Section 10 by Employee, and that Employee's employment is based primarily on
this Agreement, hereby agree that in the event of any actual or threatened
breach of the provisions of this Section 10 by Employee, MTS shall be entitled,
in addition to any other remedies and damages available, to an injunction to
restrain the violation thereof by Employee, Employee's partners, agents,
servants, employers, business associates, employees, and all persons acting for
or with Employee. Employee represents and acknowledges that, in the event of
termination of Employee's employment where the aforementioned restrictions
apply, Employee's experiences and capabilities are such that Employee can obtain
employment in business engaged in other lines and/or of a different nature and
that the enforcement of a remedy by an injunction will not prevent Employee from
earning a livelihood.
11. Expenses. Employee may incur reasonable expenses in conducting and
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promoting MTS's business, including expenses for travel, and similar items. MTS
will reimburse Employee for all such expenses upon Employee's presentation of an
itemized account of such expenditures and sufficient detail and evidence or
documentation of such expenditures as may be required by applicable federal and
state tax laws or regulations in order for MTS to deduct such expenditures for
income tax purposes.
12. Vacations. Except as may be required by applicable law, Employee shall not
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be eligible for paid vacation time until after he/she completes three hundred
sixty-five (365) calendar days of continuous employment with MTS (which period
of continuous employment shall include Employee's continuous employment with MTS
prior to the Merger), at which time he/she shall be eligible for five (5) days
of paid vacation per year until Employee shall have been continuously employed
by MTS for two (2) full years. From and after two (2) years of continuous
employment and until Employee shall have been continuously employed by MTS for
seven (7) full years, Employee shall be entitled to an additional (5) days of
paid vacation, thus having ten (10) total days of paid vacation per year. From
and after seven (7) years of continuous employment, Employee shall be entitled
to an additional five (5) days
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of paid vacation thus having fifteen (15) total days per year of paid vacation.
Vacation time must be used during the year in which it accrues and may not be
carried over from one year to the next.
13. Disability of Employee. In the event Employee becomes disabled during
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his/her employment with MTS, which disability, in the opinion of MTS, renders
Employee unable to perform the essential functions of the job for which he/she
was hired for a period of more than thirty (30) consecutive days or more than
sixty (60) cumulative days in any fiscal year of MTS, then upon request from
Employee, MTS may, but shall not be required to, investigate reasonable
accommodations that may allow Employee to continue performing his/her duties
pursuant to this Agreement. If MTS elects to not undertake such investigation
or if, in MTS's sole opinion, such investigation reveals that such reasonable
accommodations cannot be made or that no such reasonable accommodations can be
made without undue economic hardship to MTS, then, unless applicable law
requires otherwise, this Agreement shall terminate immediately upon written
notice of such events to Employee. Upon termination of this Agreement under
this paragraph, Employee shall be entitled to receive any earned but unpaid
salary due Employee through the date such notice is mailed to Employee. It is
the intention of MTS to comply with any laws or governmental regulations
applicable to its relationship with its employees. Consequently, any provisions
of such applicable laws or regulations that require MTS take actions in respect
of Employee in the event of Employee's becoming disabled during his/her
employment with MTS, shall be given effect notwithstanding the terms of this
Section 13.
14. Arbitration. Any controversy or claim arising out of or relating to this
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Agreement, shall be settled by arbitration in accordance with the then governing
rules of the American Arbitration Association for commercial matters and the
Uniform Arbitration Act, if any, then in effect in the state in which Employee
resides (with the right of discovery for all parties as provided in the Rules of
Civil Procedure applicable to actions commenced in the state courts of said
state). Judgment upon the award rendered by be entered and enforced in any
court of competent jurisdiction. The arbitrator shall apply the rules of law.
15. Notices. Any notice required or desired to be given under this Agreement
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shall be in writing sent by certified mail to Employee's last known residence as
shown in the records of MTS, or to MTS's principal office, as the case may be
and shall be deemed to have been received by the party to which it is sent on
the third day after which it was mailed, postage prepaid, return receipt
requested.
16. Waiver of Breach. MTS's waiver of a breach of any provision of this
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Agreement by Employee shall not operate or be construed as a waiver of any
subsequent breach by Employee. No such waiver shall be valid unless in writing
and signed by an authorized officer of MTS.
17. Assignment. Employee acknowledges that his services are unique and
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personal. Accordingly, Employee may not assign his rights and delegate his
duties or obligations under this Agreement. MTS's rights and obligations under
this Agreement shall inure to the benefit of and shall be binding upon MTS's
successors and assigns.
18. Entire Agreement. This Agreement contains the entire understanding of the
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parties. This Agreement may not be waived, changed, modified, extended or
discharged except by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought. MTS specifically acknowledges that any present or future employee
manuals, guidelines or handbooks are for Employee's information only and do not
form a part of this Agreement unless such additional present or future employee
manuals, guidelines or handbooks are specifically incorporated herein by
reference pursuant to a written amendment to this Agreement.
19. Headings. Headings in this Agreement are for convenience only and shall
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not be used to interpret or construe its provisions.
20. Counterparts. This Agreement may be executed in two or more counterparts,
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each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
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21. Governing Law. This Agreement and any actions related to this Agreement
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shall be governed by the laws of the State of New Mexico.
22. Survival. Notwithstanding anything to the contrary contained herein, this
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Section 22 and the agreements of the parties contained in Sections 10, 14, and
21 shall survive the termination or expiration of this Agreement.
23. Severability. The provisions of this Agreement shall be deemed severable
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and the invalidity or unenforceability of any provision shall not affect the
validity or enforceability or the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such provision to
other Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in any
other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
EMPLOYEE MICROWAVE TOWER SERVICE, INC.,
an Oregon corporation
/s/ Xxxxx X. Xxxxxxxxx By /s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx Xxxxx X. Xxxxxxxxx, President
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