Employment Agreement between Complete Tower Sources, Inc. and Carrol Castille (President)
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Summary
This agreement, effective August 15, 2006, is between Complete Tower Sources, Inc. and Carrol Castille, who will serve as the company's President. The agreement outlines Castille's executive duties, compensation (including bonuses, automobile allowance, and stock options), and benefits such as health insurance and paid vacation. The initial term runs until April 30, 2009, with possible renewal. The agreement also covers expense reimbursement, indemnification, and conditions for termination, including for cause. Castille is based in Lafayette, Louisiana, and must devote necessary time to the company's business.
EX-10.11 12 ex10_11.txt EXHIBIT 10.11 EMPLOYMENT AGREEMENT -------------------- This Employment Agreement ("Agreement") is made as of the 15th day of August, 2006 (the "Commencement Date") by and among Complete Tower Sources, Inc., a Louisiana corporation ("Company") and Carrol Castille (hereinafter, the "Executive"), All capitalized terms not otherwise defined herein shall have the meaning given to them in that certain Stock Purchase Agreement, dated as of June 20, 2006, by and among Company, Ayin Holding Company Inc., and Seller (the "Stock Purchase Agreement"). R E C I T A L S A. Ayin Holding Company Inc. acquired all of the issued and outstanding stock of the Company on August 15, 2006. B. The Board of Directors of the Company (the "Board") recognizes the Executive's potential contribution to the growth and success of the Company, and desires to assure the Company of the Executive's employment in an executive capacity and to compensate him therefore, has approved the provisions of this Agreement and has authorized the officers of the Company to execute the Agreement on behalf of the Company. C. The Executive is willing to make his services available to the Company 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 Terms. 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 (as hereinafter defined), the Executive shall serve as the Company's President. The Executive shall be accountable to the Board, and, subject to the authority of the Board, shall have supervision and control over, and responsibility for the overall operations of the Company. He also shall have such other powers and duties as may from time to time be prescribed by the Board, provided that such duties are consistent with the Executive's position as President of a company the size and type of the Company. The Executive shall devote the necessary time and attention to the business and affairs of the Company, render such services to the best of his ability, and use his reasonable best efforts to promote the interests of the Company. Notwithstanding the foregoing or any other provision in this Agreement, it shall not be a breach or violation of this Agreement for the Executive to (i) serve on corporate (subject to approval of the Board), civic or charitable boards or committees; or (ii) manage personal investments, so long as such activities do not significantly interfere with or significantly detract from the performance of the Executive's responsibilities to the Company in accordance with this Agreement. 2. Term. The term of employment under this Agreement (the "Term of ----- Employment") shall commence as of Commencement Date and end on April 30, 2009 ("Initial Term"), or such earlier date on which the Executive's employment is terminated pursuant to Section 5 of this Agreement. Upon the expiration of the Initial Term, if all parties hereto consent, the Executive's employment under this Agreement may be renewed for a successive three (3) year period ("Renewal Term", and together with the Initial Term, the "Term"). The date upon which the Term expires shall be referred to as the "Expiration Date." If the Company continues to employ the Executive beyond the Expiration Date without entering into a written employment agreement between the Company and the Executive, all obligations and rights under this Agreement shall prospectively lapse as of the Expiration Date, except the Company's ongoing indemnification obligation under Section 4 and the Executive's obligations under Sections 6 and 7. 3. Place of Performance. The Executive shall be based in Lafayette, ----------------------- Louisiana, except for required travel on the Company's business. 4. Compensation and Related Matters. ------------------------------------ 4.1 Base Salary. The Executive shall not be entitled to any base ------------- salary or base compensation. 4.2 Bonuses. During the Term of Employment, the Executive shall be -------- entitled to participate in the bonus program described on EXHIBIT A. in ---------- accordance with the terms and conditions set forth on EXHIBIT A. ----------- 4.3 Automobile Allowance. During the Term of Employment, the ---------------------- Executive shall be entitled to a monthly automobile allowance of $750.00. 4.4 Reimbursement of Expenses. Upon the submission of proper ---------------------------- substantiation by the Executive, and subject to such 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 and customary 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. The Executive shall account to the Company in writing for all expenses for which reimbursement is sought and shall supply to the Company copies of all relevant invoices, receipts or other evidence reasonably requested by the Company. 4.5 Standard Benefits. During the Term of Employment, the ------------------- Executive shall be entitled to participate in the Ayin Holding Company Inc. BlueCross BlueShield Health Care Plan (the "Ayin Health Plan"), in accordance with the terms of that plan and applicable law. 4.6 Stock Options. During the Term of Employment, the Executive --------------- shall be entitled to receive certain stock options, in accordance with the terms and conditions set forth on EXHIBIT B. ----------- 4.7 Indemnification. The Company shall extend to the Executive the ---------------- same indemnification arrangements as are generally provided to other similarly situated Company executives, including after the termination of the Executive's employment hereunder. 4.8 Other Benefits. The Executive shall be entitled to four (4) ---------------- weeks of paid vacation each calendar year during the Term of Employment, to be taken at such times as the Executive and the Company shall mutually determine and provided that no vacation time shall significantly interfere with the duties required to be rendered by the Executive hereunder, and further provided that in no event shall Executive take more than two (2) successive weeks of vacation at any time. 5. Termination. ------------ 5.1 Termination for Cause. The Company shall at all times have the ---------------------- right, immediately 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 a willful and material failure or refusal (other than by reason of his disability or incapacity) to perform his duties under, this Agreement and other than a breach of Section 7 hereof, which is not cured within fifteen (15) days after receipt by the Executive of written notice of same, (ii) engaging in any action on behalf of an enterprise which competes or plans to compete with the Company or any of its subsidiaries or affiliates, (iii) fraud, embezzlement, misappropriation of funds or material breach of trust in connection with his services hereunder, (iv) an indictment or conviction of any crime which involves dishonesty or a breach of trust, or (v) any breach of Section 7 hereof. Any termination for Cause shall be made in writing by 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 (and his legal representative) shall have the right to address the Board regarding the acts set forth in the notice of termination. Upon any termination pursuant to this Section 5.1, the Company shall (i) pay to the Executive any accrued but unpaid consideration due under the bonus program for the preceding year described on EXHIBIT A, if any, in accordance with the ---------- terms and condition set forth on EXHIBIT A, and (ii) pay to the Executive ----------- accrued but unpaid expense reimbursements and benefits, if any. Upon any termination effected and compensated pursuant to this Section 5.1, the Company shall have no further liability hereunder. 5.2 Disability. The Company shall at all times have the right, ----------- upon written notice to the Executive, to terminate the Term of Employment, if the Executive shall as the result of mental or physical incapacity, illness or disability, become unable to perform his obligations hereunder for a period of 90 days in any 12-month period. The determination of whether the Executive is or continues to be disabled shall be made in writing by a physician selected by the Board and reasonably acceptable to the Executive. Upon any termination pursuant to this Section 5.2, the Company shall (i) pay to the Executive any accrued but unpaid consideration due under the bonus program on a pro rata basis measured until the date of termination, in accordance with the terms and conditions set forth on EXHIBIT A and due only --------- after the completion of the then current Performance Year as provided in EXHIBIT ------- A, and (ii) pay any premiums for a period of 18 months in connection with the - - temporary continuation of the disability benefits under the Ayin Health Plan in accordance with the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA"). Upon any termination effected and compensated pursuant to this Section 5.2, the Company shall have no further liability hereunder. 5.3 Death. Upon the death of the Executive during the Term of ------ Employment, the Company shall (i) pay to the estate of the deceased Executive any accrued but unpaid consideration due under the bonus program on a pro rata basis measured until the date of termination, in accordance with the terms and conditions set forth on EXHIBIT A and due only after the completion of the then --------- current Performance Year as provided in EXHIBIT A, and (ii) pay any premiums for --------- a period of 18 months in connection with the temporary continuation of the benefits accruing to the deceased Executive's spouse and dependent children under the Ayin Health Plan in accordance with the terms and conditions of COBRA, if such persons had been qualified beneficiaries under the Ayin Health Plan prior to the Executive's death. Upon any termination effected and compensated pursuant to this Section 5.3, the Company shall have no further liability hereunder. 5.4 Termination Without Cause. The Company shall have the right to -------------------------- terminate the Term of Employment at any time by written notice to the Executive not less than thirty (30) days prior to the intended termination date. Upon any termination pursuant to this Section 5,4 (that is not a termination under any of Sections 5.1, 5.2, 5.3 or 5.5), the Company shall (i) pay to the Executive an amount equal to $750,000, payable in twelve (12) equal consecutive monthly installments of $62,500, commencing on the date of termination of Executive's employment (the "Severance Payment"). The Severance Payment shall be paid in cash; and (ii) continue to provide the Executive with the benefits under Sections 4.3 and 4.5 (the "Benefits") for a period of three (3) months immediately following the date of his termination in the manner and at such times as the Benefits otherwise would have been provided to the Executive. Upon any termination effected and compensated pursuant to this Section 5.4, the Company shall have no further liability hereunder. 5.5 Termination by Executive. --------------------------- a. Upon termination of the Term of Employment pursuant to this Section 5.5 by the Executive without Good Reason (as defined below), the Company shall (i) pay to the Executive any accrued but unpaid consideration due under the bonus program for the preceding year described on EXHIBIT A, if any, --------- in accordance with the terms and condition set forth on EXHIBIT A, and (ii) pay --------- to the Executive accrued but unpaid expense reimbursements and benefits, if any. Upon any termination effected and compensated pursuant to this Section 5.1, the Company shall have no further liability hereunder. b. Upon termination of the Term of Employment pursuant to this Section 5.5 by the Executive for Good Reason, the Company shall pay to the Executive the same amounts, and shall continue to provide Benefits in the same amounts, that would have been payable or provided by the Company to the Executive under Section 5.4 of this Agreement if the Term of Employment had been terminated by the Company without Cause. c. For purposes of this Agreement, "Good Reason" shall mean the termination of this Agreement by Executive not less than 60 days notice following: (i) the assignment to the Executive of any duties inconsistent in any respect with the Executive's position (including status, offices, titles and reporting requirements), authority, duties or responsibilities as contemplated by Section 1.2 of this Agreement, or any other action by the Company which results in a diminution in such position, authority, duties or responsibilities; (ii) any failure by the Company to comply with any of the provisions of Article 4 of this Agreement, other than an isolated, insubstantial and inadvertent failure not occurring in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by the Executive; (iii) the Company's requiring the Executive to be based at any office or location, that is not within 50 miles of the place of performance denoted under Article 3 of this Agreement, excluding required travel on the Company's business; (iv) failure to make payment under the Promissory Note (as that term is defined in the Stock Purchase Agreement) where such payment is not prohibited by applicable loan agreements to which either Ayin Holding Company Inc. or Charys Holding Company, Inc. ("Charys") is a party; or (v) the occurrence of a Change in Control. The Company shall have the right to cure the problem(s) noted by the Executive, before the Executive may terminate his employment for Good Reason. 5.6 Termination upon Change in Control. --------------------------------------- a. Either the Company or the Executive may terminate this Agreement at any time upon not less than thirty (30) days prior written notice to the other party given within six (6) months after a Change in Control (as hereinafter defined). In such event, the Company shall pay to the Executive the same amounts, and shall continue to provide Benefits in the same amounts, that would have been payable or provided by the Company to the Executive under Section 5,4 of this Agreement if the Term of Employment had been terminated by the Company without Cause. In addition, if as a result of the Change in Control, the Executive would be entitled to any cash payments from the Company, (other than those provided under this Agreement) under any plan or program maintained by the Company ("Additional Benefits"), then the Company shall provide the Executive with those Additional Benefits, if and only to the extent that such Additional Benefits, when added to the amounts payable and the Benefits provided by the Company to the Executive hereunder, will not constitute excess parachute payments with the meaning of Section 280G of Internal Revenue Code of 1986, as amended, and the regulations thereunder (the "Code"). Upon any termination effected and compensated pursuant to this Section 5.6, the Company shall have no further liability hereunder to Executive. b. For purposes of this Agreement, the term "Change in Control" shall mean: (i) Consummation by Charys of (x) a reorganization, merger, consolidation or other form of corporate transaction or series of transactions, in each case, with respect to which persons who were the shareholders of Charys immediately prior to such reorganization, merger or consolidation or other transaction do not, immediately thereafter, own more than Fifty Percent (50%) of the combined voting power entitled to vote generally in the election of directors of the reorganized, merged or consolidated company's then outstanding voting securities, in substantially the same proportions as their ownership immediately prior to such reorganization, merger, consolidation or other transaction, or (y) a liquidation or dissolution of Charys or (z) the sale of all or substantially all of the assets of Charys (unless such reorganization, merger, consolidation or other corporate transaction, liquidation, dissolution or sale is subsequently abandoned); (ii) the acquisition (other than from Charys) by any person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act, of beneficial ownership within the meaning of Rule 13-d promulgated under the Securities Exchange Act of more than Fifty Percent (50%) of either the then outstanding shares of Charys's Common Stock or the combined voting power of Charys's then outstanding voting securities entitled to vote generally in the election of directors (hereinafter referred to as the ownership of a "Controlling Interest") excluding, for this purpose, any acquisitions by (1) Charys or its Subsidiaries, (2) any person, entity or "group" that as of the Commencement Date of this Agreement owns beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a Controlling Interest or (3) any employee benefit plan of Charys or its Subsidiaries; (iii) provided that, with respect to this Section 5.6(b), a Change in Control shall not be deemed to have occurred should any of the contingencies referred to in this Section involve (i) any of those companies, persons or other legal entities with whom Charys is negotiating on or before the Commencement Date and which are communicated, in writing, by Charys to the Executive upon or prior to execution of this Agreement; or (ii) as a result of any internal corporate reorganization or reclassification of voting securities among Charys' existing shareholders resulting in reallocation of voting interests among such persons. 5.7 Resignation. Upon any termination of employment pursuant to ------------ this Article 5, the Executive shall be deemed to have resigned as an officer, and if he or she was then serving as a director of the Company, as a director, and if required by the Board, the Executive hereby agrees to immediately execute a resignation letter to the Board. 5.8 Survival. The provisions of this Article 5 shall survive the --------- termination of this Agreement, as applicable. 6. Non-Competition. In order to fully protect the Company's proprietary ---------------- information, and in connection with the valuable consideration and benefits the Executive is receiving from both (a) the transactions contemplated by the execution of the Stock Purchase Agreement, and (b) the terms of this Agreement going forward, the Executive expressly agrees to the terms of the Company's Non-Competition Agreement (the "Non- Competition Agreement"), attached hereto as SCHEDULE 1, which Executive shall execute contemporaneously with this Agreement. - ----------- 7. Confidentiality. The Executive recognizes and acknowledges that as ---------------- an integral part of the Company's business, the Company has developed, and will develop, at a considerable investment of time and expense, marketing and business plans and strategies, procedures, methods of operation and marketing, financial data, lists of actual and potential customers and suppliers, and independent sales representatives and related data, technical procedures, engineering and product specifications, plans for development and expansion, and other confidential and sensitive information, and the Executive acknowledges that the Company has a legitimate business interest in protecting the confidentiality of such information. The Executive further acknowledges that he will be entrusted with such information as well as confidential information belonging to customers, suppliers, and other third parties. For purposes of this Section 7, "Trade Secrets" are defined as information, regardless of form, belonging to the Company, licensed by it, or disclosed to it on a confidential basis by its customers, suppliers, or other third parties, including, but not limited to, technical or nontechnical data, formulae, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, product plans, or lists of actual or potential customers or suppliers which are not commonly known by or available to the public and which information: (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. For purposes of this Section 7, "Confidential Information" is defined as information, regardless of form, belonging to the Company, licensed by it, or disclosed to it on a confidential basis by its customers, suppliers, or other third parties, other than Trade Secrets, which is material and valuable to the Company and not generally known by the public. 7.1 Promise Not to Disclose. The Executive promises never to use -------------------------- or disclose any Trade Secret before it has become generally known within the relevant industry through no fault of the Executive. The Executive agrees that this promise shall never expire, and further promises and acknowledges that, while this Agreement is in effect and for two (2) years after its termination, the Executive will not, without the prior written approval of the Company, disclose any Confidential Information before it has become generally known within the relevant industry through no fault of the Executive. 7.2 Promise Not to Solicit. At all times during the Term of -------------------------- Employment, and for 24 months after its termination, the Executive shall not, directly or indirectly, for himself or for any other person, firm, corporation, partnership, association or other entity (a) solicit, recruit or attempt to solicit or recruit (or assist others to recruit) any officer, manager, employee, or consultant of the Company and its subsidiaries and affiliates, and their predecessors and successors (collectively, the "Group") to leave the Group, or (b) solicit or attempt to solicit any of the actual or targeted prospective customers or clients of the Group with whom the Executive had contact or about whom the Executive learned Confidential Information or other proprietary information on behalf of any person or entity in connection with any business unit that competes with the Company's Business. 7.3 Promise Not to Engage in Certain Employment. The Executive ------------------------------------------------ agrees that, while this Agreement is in effect and for 24 months after its termination, the Executive shall not accept any employment or engage in any activity, without the prior written consent of the Board if the loyal and complete fulfillment of the Executive's duties would inevitably require the Executive to reveal or utilize Trade Secrets or Confidential Information. Notwithstanding the foregoing, the restrictions set forth in this Section 7.3 shall terminate and be of no further force and effect upon the occurrence of Ayin Holding Company Inc.'s failure to make payment under the Promissory Note (as that term is defined under the Stock Purchase Agreement) where such payment is not prohibited by applicable loan agreements to which Ayin Holding Company Inc. or Charys is a party. 7.4 Return of Information. Upon the expiration of the Executive's ----------------------- employment with the Company, the Executive will promptly deliver to the Company, or, at its written instruction, destroy, all documents, data, drawings, manuals, letters, notes, reports, electronic mail, recordings, and copies thereof, of or pertaining to the Company or any other Group member in the Executive's possession or control. The Executive further agrees that, during the term of Executive's employment with the Company or the Group and thereafter, the Executive shall meet with Company personnel, and, based on knowledge or insights the Executive gained during the Executive's employment with the Company and the Group, answer any question such personnel may have related to the Company or the Group. 7.5 Intellectual Property. Intellectual property (including such ----------------------- things as all ideas, concepts, inventions, plans, developments, software, data, configurations, materials (whether written or machine-readable), designs, drawings, illustrations, and photographs, that may be protectable, in whole or in part, under any patent, copyright, trademark, trade secret, or other intellectual property law), developed, created, conceived, made, or reduced to practice during the Executive's employment (except intellectual property that has no relation to the Group or any Group customer that the Executive developed, purely on the Executive's own time and at the Executive's own expense), shall be the sole and exclusive property of the Company, and the Executive hereby assigns all of Executive's rights, title, and interest in any such intellectual property to the Company. 7.6 Execution of Innovation Agreement. The Executive agrees to the ---------------------------------- terms of the Company's Assignment of Inventions agreement, which is attached hereto as SCHEDULE 2, and shall execute it contemporaneously with this ------------ Agreement. 7.7 Enforcement of This Article. Article 7 of this Agreement shall ---------------------------- survive the termination of this Agreement for any reason. The Executive acknowledges that (a) the Executive's services are of a special, unique, and extraordinary character and it would be very difficult or impossible to replace them, (b) this Article's terms are reasonable and necessary to protect the Company's legitimate interests, (c) this Article's restrictions will not prevent the Executive from earning or seeking a livelihood, (d) this Article's restrictions shall apply wherever permitted by law, and (e) the Executive's violation of any of this Article's terms would irreparably harm the Company. Accordingly, the Executive acknowledges and agrees that, if the Executive violates any of the provisions of this Article VII, the Company or any Group member shall be entitled to, in addition to other remedies available to it, an injunction to be issued by any court of competent jurisdiction restraining the Executive from committing or continuing any such violation, without the need to prove the inadequacy of money damages or post any bond or for any other undertaking. 8. Notice. Any notice, request, instruction or other document to be ------- given hereunder by any party hereto to any other party hereto shall be in writing and delivered personally or sent by registered or certified mail (including by overnight courier such as FedEx or express mail service), postage or fees prepaid: if to the Executive: Carrol Castille Complete Tower Sources, Inc. 715 Vatican Road Carencro, LA 705020 With copies to: G. Frederick Seemann Attorney at Law 401 Audubon Blvd., Suite 103A Lafayette, LA 70503 Fax No.: (337) 234-4046 Attention: G. Frederick Seemann Oscar W. Boswell II Attorney at Law 100 East Vermillion, Suite 310 Lafayette, LA 70501 Fax No: (337) 237-4465 (Notice to attorneys shall not constitute notice to Executive) if to the Company: Complete Tower Sources, Inc. 715 Vatican Road Carencro, LA 705020 Fax No.: (337) 886-7790 Attention: Jody Lormand with a copy to: Charys Holding Company, Inc. 1117 Perimeter Center West, Suite N415 Atlanta, Georgia 30338 Attention: Billy V. Ray, Jr., Chief Executive Officer And an additional copy to: Paul, Hastings, Janofsky & Walker LLP 600 Peachtree Street, N.E. Suite 2400 Atlanta, Georgia 30308 Fax No.: (404) 685-5202 Attention: Wayne Bradley or at such other address for a party as shall be specified by like notice Any notice which is delivered personally in the manner provided herein shall be deemed to have been duly given to the party to whom it is directed upon actual receipt by such party or the office of such party. Any notice which is addressed and mailed in the manner herein provided shall be conclusively presumed to have been duly given to the party to which it is addressed at the close of business, local time of the recipient, on the fourth business day after the day it is so placed in the mail or, if earlier, the time of actual receipt. 9. Golden Parachute Limitation. The Company and the Executive agree to ----------------------------- cooperate with each other in connection with any administrative or judicial proceedings concerning the existence or amount of golden parachute penalties with respect to payments or benefits the Executive receives. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, including any additional payments required under this Section 9) (a "Payment") would be subject to an excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Company shall make a payment to the Executive (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. 10. Amendment. No provisions of this Agreement may be modified, waived, ---------- or discharged except by a written document signed by a duly authorized Company officer and the Executive. Thus, for example, promotions, commendations, and/or bonuses shall not, by themselves, modify, amend, or extend this Agreement. A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time. 11. Interpretation; Exclusive Forum. The validity, interpretation, ---------------------------------- construction, and performance of this Agreement shall be governed by and construed in accordance with the internal laws of the state of Delaware (excluding any that mandate the use of another jurisdiction's laws). Each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement, or for recognition and enforcement of any judgment in respect hereof, brought by the other party hereto or its successors or assigns shall be brought and determined in federal court sitting in Bexar County, San Antonio, State of Texas, and each party hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid court; provided, however, in the event jurisdiction of the aforesaid court is --------- -------- unavailable, the parties agree that any legal action or proceeding arising out of or related to this Agreement shall be settled and determined by private binding arbitration in San Antonio, Texas before a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date that the demand for arbitration is given. 12. Successors. This Agreement shall be binding upon, and shall inure ----------- to the benefit of, the Executive and his estate, but the Executive may not assign or pledge this Agreement or any rights arising under it, except to the extent permitted under the terms of the benefit plans in which the Executive participates. The Company may freely assign this Agreement to any affiliate or successor that agrees in writing to be bound by this Agreement without the Executive's prior consent, after which any reference to the "Company" in this Agreement shall be deemed to be a reference to the affiliate or successor, and the Company thereafter shall have no further primary, secondary or other responsibilities or liabilities under this Agreement of any kind. 13. Taxes. The Company shall withhold taxes from payments or awards it ------ makes pursuant to this Agreement required by applicable law. 14. Validity. The invalidity or unenforceability of any provision 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. In the event that a court of competent jurisdiction determines that any provision of this Agreement is invalid or more restrictive than permitted under the governing law of such jurisdiction, then only as to enforcement of this Agreement within the jurisdiction of such court, such provision shall be interpreted and enforced as if it provided for the maximum restriction permitted under such governing law. 15. Counterparts. This Agreement may be executed in multiple ------------- counterparts, each of which shall for all purposes be deemed to be an original and all of which, when taken together, shall constitute one and the same instrument. 16. Entire Agreement. All oral or written agreements or ------------------ representations, express or implied, with respect to the subject matter of this Agreement are set forth in this Agreement and the Exhibits and Schedules hereto. Notwithstanding the foregoing, the parties agree that this Agreement does not override other written agreements the Executive has executed relating to specific aspects of the Executive's employment, such as conflicts of interest. 17. Former Employers. The Executive is not subject to any employment, ------------------ confidentiality, or other agreement or restriction that would prevent the Executive from fully satisfying the Executive's duties under this Agreement or that would be violated if the Executive did so. Without the Company's prior written approval, the Executive promises that Executive will not: (a) disclose proprietary information belonging to a former employer or other entity without its written permission; (b) contact any former employer's customers or employees to solicit their business or employment on behalf of the Group; or (c) distribute announcements about or otherwise publicize Executive's employment with the Group. The Executive acknowledges and agrees to indemnify and hold the Company harmless from any liabilities, including defense costs, it may incur because the Executive is alleged to have broken any of these promises or improperly revealed or used such proprietary information or to have threatened to do so, or if a former employer challenges the Executive entering into this Agreement or rendering services pursuant to it. 18. Third Party Beneficiary. The parties agree and acknowledge that -------------------------- Ayin Holding Company Inc. is a third-party beneficiary of this Agreement. [SIGNATURE PAGE TO FOLLOW] - -------------------------------------------------------------------------------- THE EXECUTIVE ACKNOWLEDGES THAT ALL UNDERSTANDINGS AND AGREEMENTS BETWEEN THE COMPANY AND THE EXECUTIVE RELATING TO THE SUBJECTS COVERED IN THIS AGREEMENT ARE CONTAINED IN IT AND THAT THE EXECUTIVE HAS ENTERED INTO THIS AGREEMENT VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS BY THE COMPANY OTHER THAN THOSE CONTAINED IN THIS AGREEMENT ITSELF. THE EXECUTIVE UNDERSTANDS THAT PAUL, HASTINGS, JANOFSKY & WALKER LLP (PHJ&W) REPRESENTED THE COMPANY, NOT THE EXECUTIVE, IN NEGOTIATING THIS CONTRACT; THE EXECUTIVE WAS REPRESENTED BY SEPARATE COUNSEL. TO THE EXTENT PHJ&W HAS REPRESENTED THE EXECUTIVE, IS REPRESENTING THE EXECUTIVE, OR REPRESENTS THE EXECUTIVE IN THE FUTURE, THE EXECUTIVE IRREVOCABLY WAIVES ANY CONFLICT OF INTEREST OBJECTIONS THE EXECUTIVE MAY HAVE TO ITS REPRESENTATION OF THE COMPANY AS TO ANY MATTERS RELATING TO THE EXECUTIVE'S EMPLOYMENT BY THE COMPANY, INCLUDING THE NEGOTIATION OF THIS CONTRACT. THE EXECUTIVE FURTHER ACKNOWLEDGES THAT THE EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT, THAT THE EXECUTIVE UNDERSTANDS ALL OF IT, AND THAT THE EXECUTIVE HAS BEEN GIVEN THE OPPORTUNITY TO DISCUSS THIS AGREEMENT, TOGETHER WITH ALL ATTACHED SCHEDULES AND EXHIBITS, WITH THE EXECUTIVE'S PRIVATE LEGAL COUNSEL AND HAVE AVAILED HIMSELF OF THAT OPPORTUNITY TO THE EXTENT THE EXECUTIVE WISHED TO DO SO. - -------------------------------------------------------------------------------- Date: ______, 2006 COMPLETE TOWER SOURCES, INC.; By: /s/ Lori H. Mitchell ------------------------------------ Name: Lori H. Mitchell Title: President AYIN HOLDING COMPANY INC. By: /s/ Jimmy R. Taylor ------------------------------------ Name: Jimmy R. Taylor Title: President EXECUTIVE: /s/ Carrol Castille ---------------------------------------- Name: Carrol Castille EXHIBIT A --------- BONUS PROGRAM Within 120 days after the end of each of the twelve-month periods following the Effective Date (each, a "Performance Year"), the Board shall compare the year-end audited financials of Company to the projected financials of Company, and Carrol Castille shall be entitled to a bonus calculated as follows: a) For each Performance Year, the total amount of the bonus pool available shall be $1,000,000 (the "Bonus Pool Amount"). b) The bonus payable for each such Performance Year shall be a portion of the Bonus Pool Amount equal to the amount set forth in the table below opposite the applicable Calculation Value calculated as set forth herein.
c) The "Calculation Value" shall be an amount equal to (i) the sum of the (x) Revenue Factor, (y) EBITDA Factor, and (z) Net Income Factor. d) The Revenue Factor, the EBITDA Factor and the Net Income Factor shall be calculated in accordance with GAAP. Any bonus due shall be payable in cash, to the extent such cash payment is permitted under the loan agreements to which Company and Charys are a party to. If such agreements do not permit payment of such bonus in cash, then the bonus shall be paid in Charys common stock, at the price per share as of the last trading day of the applicable Performance Year. For purposes of this Exhibit A, the terms set forth above shall have the ---------- following meaning: (i) Revenue Factor shall be a percentage equal to the product of (x) --------------- forty percent (40%) (the "Revenue Weighted Average") multiplied by (y) a fraction the numerator of which is the Company's actual revenues for a Performance Year and the denominator of which is the Company's projected revenues for such corresponding Performance Year. (ii) EBITDA Factor shall be a percentage equal to, the product of (x) -------------- fifty percent (50%) (the "EBITDA Weighted Average") multiplied by (y) a fraction the numerator of which is the Company's actual EBITDA for a Performance Year and the denominator of which is the Company's projected EBITDA for such corresponding Performance Year. (iii) Net Income Factor shall be a percentage equal to, the product of ------------------ (x) ten percent (10%) (the "Net Income Weighted Average") multiplied by (y) a fraction the numerator of which is the Company's actual net income for a Performance Year and the denominator of which is the Company's projected net income for such corresponding Performance Year.
* At or shortly after Closing we can update this number once we know exactly what the interest expenses will be. By way of example, and for illustrative purposes only, the following model depicts the manner in which the bonus shall be calculated for a single Performance Year. The numbers and assumptions used herein are not intended to be the final projections or Bonus Pool Amount for purposes of this Exhibit A. ----------
Whereby: ____________________ 1 The Projected Net Income figures will be updated as we receive more information about the Company. 1) Revenue Factor = 48%; EBITDA Factor = 40%; Net Income Factor = 5% 2) Calculation Value = 48% + 40% + 5% = 93% 3) Bonus Payable based on a calculation value of 93% = $500,000 EXHIBIT B --------- STOCK OPTIONS During the Executive's employment, the Executive shall be entitled to receive options to purchase Charys stock as follows: a) A pool of Charys options shall be made available at 85% of market price at the time of issuance. b) The issuance of these options shall be based upon: (i) Acquisition of similar type companies under Charys' general acquisition schedule of 50% cash and 50% Charys stock. The gross revenue of any acquisition will be added to the factors for the calculation of the "option pool"; and (ii) The addition of profitable new revenue through new accounts or new customers. The total annual value of this new profitable revenue will become another factor for the calculation; and (iii) Any new business that can be distributed to any of the other division of Charys. The gross annual revenue in this category will become a factor. Once the three factors are determined and added together then the option pool value will be determined by multiplying 5% times the first $25,000,000 of the combined three factors, then 3% times the next $25,000,000 and 2% times any value over $50,000,000.
Share price at issue time $2.50 = 656,000 options available at 85% of market or $2.12 exercise price. Exercise option period is 5 years. Schedule 1 ---------- NON-COMPETITION AGREEMENT THIS NON-COMPETITION AGREEMENT (this "Agreement") is made this 15th day of August, 2006 (the "Effective Date"), by and between Carrol Castille --------------- ("Executive") and Complete Tower Sources, Inc., a Louisiana corporation ("Company"). All capitalized terms not otherwise defined herein shall have the ------- meaning given to them in the Stock Purchase Agreement, dated as of June 20, 2006, among Company, Ayin Holding Company Inc., and certain other parties identified therein (the "Stock Purchase Agreement"). W I T N E S S E T H: - - - - - - - - - - WHEREAS, Executive is an officer of Complete Tower Sources, Inc., which is in the business of tower construction for wireless communications (the "Business"); WHEREAS, pursuant to the Stock Purchase Agreement dated June 20, 2006, Ayin Holding Company Inc. is purchasing all of the Company's shares; WHEREAS, contemporaneously herewith, Executive and Company are entering into an Employment Agreement (the "Employment Agreement"); --------------------- WHEREAS, Company and Ayin Holding Company Inc. would not have entered into the Stock Purchase Agreement, and Company would not have entered into the Employment Agreement, without ensuring the confidentiality of certain information and protection against competition and solicitation by the Executive; WHEREAS, Company and Charys Holding Company, Inc. would not have entered into the Stock Purchase Agreement, and Company would not have entered into the Employment Agreement, without ensuring the confidentiality of certain information and protection against competition and solicitation by the Executive; WHEREAS, Company, or its respective assigns, will continue to engage in its business throughout the states of Louisiana, Alabama, Mississippi, and Texas (the "Territory"); and --------- NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein and in the Stock Purchase Agreement and Employment Agreement, the benefits which Executive will receive from the transactions contemplated by the Stock Purchase Agreement and Employment Agreement, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. COVENANTS 1.1 Acknowledgements by Executive. Executive acknowledges the -------------------------------- following: (a) Executive has been engaged in the Business. Such Business is highly competitive. -1- (b) Executive's participation in the Business has provided Executive with valuable, confidential and proprietary information concerning the Business and its future plans, much of which Executive participated in developing. (c) Executive has had access to and have become acquainted with various trade secrets, proprietary data and other confidential information of the Business and may have contributed to such information, consisting of documents, files, software, development work computer programs and databases, processes, techniques and procedures, and related documentation, compilations of information, records and specifications, used in or related to the Business, including: (i) business information, such as (but not limited to) the business practices, suppliers, operational methods, technical processes, future plans, techniques, patent information and applications, leases, contracts and business plans; (ii) financial information, such as (but not limited to) earnings, sales, assets, debts, prices, pricing structure, margins, volume and quantities of purchases or sales, and other financial data; (iii) marketing information such as (but not limited to) prior, ongoing or proposed marketing programs, presentations or agreements by or on behalf of the Business, pricing information, marketing tests and results of marketing efforts; (iv) personnel information, such as (but not limited to) employees' personal or medical histories, compensation, employee incentive programs, terms of employment, actual or proposed promotions, hirings, resignations, terminations including reasons for such terminations, training methods and other personnel information; (v) customer information, such as (but not limited to) past, existing or prospective customers' names, addresses or backgrounds, customer specifications and requirements, prices that particular or various customers are charged or pay for services, proposals or agreements between customers and the Business, status of customers' accounts, and other information about actual or prospective customers; and (vi) customer or prospective customer trade secrets, proprietary data and other confidential information that is provided to Executive for the sole and exclusive purpose of permitting Executive to market or provide products or services of the Business to such customers or prospective customers. (d) Any unauthorized possession, communication or use of Confidential Information (defined below) would enable Executive (or any third party to whom the Executive might disseminate the Confidential Information) to compete unfairly with Company by using the Confidential Information to such person's advantage. (e) The agreements and covenants contained in this Agreement are essential to protect the interests of Company in connection with the transactions contemplated by the Stock Purchase Agreement. -2- (f) Company and Ayin Holding Company Inc. would not have consummated the transactions contemplated by the Stock Purchase Agreement, and would not have entered into the Employment Agreement, but for the agreements and covenants contained in this Agreement, For purposes of this Agreement, the trade secrets and confidential information referred to in Section 1.1 (c) above, including those described in subsections 1.1 (c)(i) through (vi), shall be collectively referred to as the "Confidential Information"; provided, however, that "Confidential Information" ------------------------- shall not include information that (A) is available from sources, other than Executive or their respective affiliates, which sources Executive reasonably believes do not have a duty of confidentiality to Company with respect to such information, or (B) is or becomes publicly available other than as a result of any Executive's breach of this Agreement. 1.2 Noncompetition. For a period of two (2) years from the date of this --------------- Agreement or, if longer, for a period beginning on the date of this Agreement and ending two (2) years after the Employment Agreement's Expiration Date (as defined in the Employment Agreement), (the "Restricted Period"), Executive shall ----------------- not, on its own behalf or on behalf of others, directly or indirectly, own, manage, operate, control, invest in, or participate in the ownership, management, operations, or control of, lend any Executive's name or any similar name to, any person, entity or business engaged in the Business in the Territory. Notwithstanding the foregoing; (i) the restrictions set forth in this Section 1.2 shall terminate and be of no further force and effect upon the occurrence of Ayin Holding Company Inc.'s failure to make a payment under the Promissory Note (as that term is defined under the Stock Purchase Agreement) where such payment is not prohibited by applicable loan agreements to which Ayin Holding Company Inc. or Charys is a party, and (ii) Executive shall not be prohibited from having beneficial ownership of up to 2% of the equity interest of any business entity, the equity securities of which are registered under the Securities Exchange Act of 1934, as amended. 1.3 Nondisclosure of Confidential Information. --------------------------------------------- (a) Executive acknowledges that (i) Company has a legitimate and continuing proprietary interest in the Confidential Information that Company has acquired for significant consideration; and (ii) in order to guard such interest of Company, it is necessary for Company to protect all Confidential Information. Executive agrees that its obligations under Section 1.3(b) of this Agreement shall be absolute and unconditional. (b) Executive shall not, directly or indirectly, during the Restricted Period, use, exploit, publish or otherwise disclose in any manner any Confidential Information, and shall otherwise keep all Confidential Information confidential. Notwithstanding the foregoing, Executive shall be entitled to disclose Confidential Information as may be required by applicable law, including a subpoena or court or administrative order, provided that in any such case Executive shall use reasonable efforts to give advance written notice of any such disclosure to Company and Ayin Holding Company Inc. In addition, Executive shall be entitled to use or disclose Confidential Information to the extent necessary to (i) prepare tax returns of Executive or (ii) to enforce its rights under the Stock Purchase Agreement and other documents executed in connection therewith. -3- (c) Executive acknowledges that all physical property of the Business in the direct or indirect possession of any Executive, including all documents, files, software, development work computer programs and databases, processes, techniques and procedures, and related documentation, compilations of information, records, specifications, equipment and similar items relating to the Business or any of the Customers, whether or not prepared by Executive and whether or not such property is Confidential Information, (i) is and shall remain the exclusive property of the Business and (ii) shall not be removed from the premises of the Business, For purposes of this Section 1.3 and Section 1.5 of this Agreement, "Customers" shall mean the customers of the Business and --------- Purchaser, including, without limitation, Cingular, NSORO, Bechtel, Centennial, Louisiana Tower and their respective affiliates, successors, and assigns. 1.4 Nonsolicitation of Employees. During the Restricted Period, ------------------------------- Executive shall not, directly or indirectly, solicit the employment of, employ, recruit, or retain as an independent contractor, consultant or otherwise, any current employee of Company, or in any way induce or cause any current or future employee of Company, or any independent contractor or consultant with whom Company does business, to terminate its relationship with Company, or otherwise interfere or attempt to interfere in any way with any such relationship. 1.5 Nonsolicitation of Customers. During the Restricted Period, ------------------------------- Executive shall not, on its or his own behalf or on behalf of others, directly or indirectly, solicit any Customers for the purpose of engaging in the Business. 1.6 Non-Disparagement. Unless necessary to prosecute any claims against ------------------ each other pursuant to this Agreement, the Stock Purchase Agreement or as required by law, including in response to a subpoena or court or administrative order, neither Company nor Executive shall, during the Restricted Period or anytime thereafter, disparage the other or any of its officers, directors, employees or direct or indirect equity owners (or their respective officers, directors or employees) in any way, including by making statements that would call into question the professional competence, billing or distribution practices, business competence or reputation of any of them. 2. RIGHTS AND REMEDIES UPON BREACH. Executive acknowledges that (a) the provisions of this Agreement are fundamental and essential for the protection of Company's legitimate business and proprietary interests; (b) such provisions are reasonable and appropriate in all respects; and (c) any breach of this Agreement will result in irreparable damage to Company for which an adequate monetary remedy does not exist and a remedy at law may prove to be inadequate. Accordingly, in the event of any actual or threatened breach by Executive of any provision of Sections 1.2, 1.3, 1.4, 1,5, or 1.6, Company shall, in addition to any other remedies permitted by law, be entitled to seek, and Executive consents to, equitable remedies including specific performance, injunctive relief, a temporary restraining order, and temporary or permanent injunctions, in federal court in Bexar County, San Antonio, State of Texas, to prevent or otherwise restrain a breach of such provision, without the necessity of proving harm or damages or the posting of any bond or other security, and to recover any and all costs and expenses, including reasonable attorneys' fees, incurred in enforcing this Agreement against Executive. Such relief shall be in addition to, and not in substitution of, any -4- other remedies available to Company. The existence of any claim or cause of action of Executive against Company shall not constitute a defense to the enforcement by Company of the covenants contained in Sections 1,2, 1.3, 1,4, 1,5 or 1.6. Executive shall not defend any such claim or cause of action on the basis that there is an adequate remedy at law. The Restricted Period shall be extended by any period during which Executive is in breach of this Agreement as finally determined by a court of competent jurisdiction, 3. SEVERABILITY; BLUE PENCILING. The necessity of each of the restrictions set forth above and the nature and scope of each such restriction has been carefully considered, bargained for and agreed to by Company, Ayin Holding Company Inc., and Executive (each a "Party", ----- and, collectively, the "Parties"). The Parties hereby agree and acknowledge that ------- the duration, scope and geographic area applicable to each of the restrictions set forth in this Agreement are fair, reasonable and necessary. The consideration provided for in the Stock Purchase Agreement, Employment Agreement, and recited in this Agreement is sufficient and adequate to compensate Executive for agreeing to each of the restrictions contained in this Agreement. However, in the event that any portion of this Agreement shall be determined by any court of competent jurisdiction to be unenforceable, including by reason of its being extended over too great a period of time or too large a geographic area or over too great a range of activities, it shall be interpreted to extend only over the maximum period of time, geographic area or range of activities as to which it may be enforceable. Each provision and part of a provision of this Agreement shall be deemed a separate and severable covenant. It is the desire and intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which such enforcement is sought. Accordingly, a court of competent jurisdiction is directed to modify any provision to the extent necessary to render such provision enforceable, and if such cannot be lawfully done, to sever any such portion of a provision, but only such portion of a provision as necessary to cause the remaining provisions or portions of such provision to be enforceable. 4. MISCELLANEOUS. 4.1 Representations of Executive. Executive represents and warrants ------------------------------- that Executive has read and understands this Agreement and has consulted with legal counsel who has explained all of its terms and provisions and that the agreed upon consideration for the undertakings made by Executive in this Agreement is adequate. Executive acknowledges and agrees that the restrictions on competitive activities and the other undertakings made by Executive in this Agreement will adversely affect such Executive's ability to obtain future business and to engage in other pursuits and that Executive nonetheless intends to be bound by all of the restrictions, undertakings and other obligations required in this Agreement. 4.2 Amendments and Waiver. No amendment, waiver or consent with respect ---------------------- to any provision of this Agreement shall in any event be effective unless it is in writing and signed by the Parties, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Any Party's lack of enforcement of any provision of this Agreement shall not be construed as a waiver, and the nonbreaching Party may elect to enforce any such provision at any time in the event of a past, repeated or continuing -5- breach. The rights and remedies in this Agreement are the exclusive rights and remedies that the Parties may have upon a breach of this Agreement. 4.3 Notices. All notices or other communications required or permitted -------- under this Agreement shall be in writing and will be deemed to have been duly given when (a) delivered by hand, (b) sent by facsimile, provided that a copy is mailed by registered mail, return receipt requested, or (c) when received by the addressee, if sent by a nationally recognized overnight courier service (receipt requested), in each case to the appropriate addresses and fax numbers set forth below (or to such other addresses and fax numbers as a party may designate by notice to the other parties): EXECUTIVE: COMPANY: CARROL CASTILLE COMPLETE TOWER SOURCES, INC. 715 Vatican Road 715 Vatican Road Carencro, LA 705020 Carencro, LA 705020 Fax No.: (337) 886-7790 With copies to: Attn: Chairman of the Board G. FREDERICK SEEMANN, ESQ. 401 Audubon Boulevard With copies to: Building B, Suite 103-A Lafayette, LA 70503-2676 AYIN HOLDING COMPANY, INC. 17314 SH 249 OSCAR W. BOSWELL II Suite 230 100 East Vermillion, Suite 310 Houston, Texas 77064 Lafayette, LA 70501 Attention: Jimmy R. Taylor, President Fax No: (337) 237-4465 CHARYS HOLDING COMPANY, INC. (Notice to attorneys shall not 1117 Perimeter Center West, Suite N415 constitute notice to Executive) Atlanta, Georgia 30338 Attention: Billy V. Ray, Jr., Chief Executive Officer and PAUL, HASTINGS, JANOFSKY & WALKER, LLP 600 Peachtree Street N.E., Suite 2400 Atlanta, Georgia 30308-2222 Fax No: (404) 815-2424 Attention: Wayne Bradley Either Party may change its address for receiving notice by giving written notice to the other Party in the manner provided in this Section 4.3. -6- 4.4 Governing Law. This Agreement shall be governed by, and construed, --------------- enforced and interpreted in accordance with, the substantive laws (without regard to its conflicts of laws provisions) of the State of Delaware. 4.5 Successors and Assigns. This Agreement, and the rights and ------------------------- obligations of the Parties, shall inure to the benefit of and be binding on the Parties and their respective successors and assigns. Executive not may assign any rights, benefits, duties or obligations under this Agreement. 4.6 Entire Agreement. This Agreement, Stock Purchase Agreement, and ------------------ Employment Agreement express the entire agreement and understanding between the Parties with respect to the subject matter hereof, and all promises, representations, understandings, arrangements and prior agreements are merged herein and therein and superseded hereby and thereby. 4.7 Rules of Construction. The term "including" shall mean "including ------------------------ without limitation." The term "person" shall be broadly construed to mean any individual, trust, partnership, corporation, limited liability company, organization, joint venture or any other entity or body of any nature. The Article, Section and other headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. 4.8 Expenses. Each Party shall pay its own costs and expenses in --------- connection with the transactions contemplated by this Agreement. 4.9 Counterparts. This Agreement may be executed in multiple ------------- counterparts, each of which shall for all purposes be deemed to be an original and all of which, when taken together, shall constitute one and the same instrument. [SIGNATURE PAGE TO FOLLOW] -7- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. COMPANY: EXECUTIVE: COMPLETE TOWER SOURCES, INC. By: /s/ Lori H. Mitchell /s/ Carrol Castille -------------------------------- ---------------------------------------- Carrol Castille Name: Lori H. Mitchell ------------------------------ Title: President SIGNATURE PAGE TO NON-COMPETITION AGREEMENT -8- Schedule 2 ---------- ASSIGNMENT OF INVENTIONS ------------------------ 1. I will promptly disclose in writing to the Company all Inventions, For purposes of this Agreement, "Invention" shall mean any discovery, whether or not patentable, as well as improvements thereto, which is conceived or first practiced by me, alone or in a joint effort with others, whether prior to or following execution of this Agreement, which; (i) may be reasonably expected to be used in a product of the Company; (ii) results from work that I have been assigned as part of my duties as an employee of the Company; (iii) is in an area of technology which is the same as or substantially related to the areas of technology with which I am involved; (iv) is useful, or which the Company reasonably expects may be useful, in any manufacturing or product design process of the Company; or (v) utilizes any Confidential Information. 2. All Inventions developed while employed by the Company in the scope of such my employment and duties belong to and are the sole property of the Company and will be subject to this Agreement. I shall sign and deliver to the Company (during and after employment) any other documents that the Company considers reasonably necessary to provide evidence of (i) the assignment of all of my rights, if any, in any Inventions and (ii) the Company's ownership of such Inventions. 3. I will assist the Company in applying for, prosecuting, obtaining, or enforcing any patent, copyright, or other right or protection relating to any Invention, all at the Company's expense but without consideration to me in excess of my salary or wages. 4. If the Company is unable to secure my signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright, or other right or protection relating to any Invention, whether due to my mental or physical incapacity or any other cause, I hereby irrevocably designate and appoint the Company and each of its duly authorized officers and agents as my agent and attorney-in-fact, to act for and in my behalf to execute and file any such document and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights, or other rights or protections, with the same force and effect as if executed and delivered by me. Employee: Complete Tower Sources, Inc. /s/ Carrol Castille /s/ Lori H. Mitchell - ------------------------------------ ---------------------------------------- Signature of Employee Signature of Authorized Company Representative Carrol Castille President - ------------------------------------ ---------------------------------------- Print Name of Employee Title of Representative - ------------------------------------ ---------------------------------------- Date Date SIGNATURE PAGE TO ASSIGNMENT OF INVENTIONS AGREEMENT
