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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 7, 2003
Crown Castle International Corp.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-24737 76-0470458
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification
Incorporation) Number)
510 Bering Drive
Suite 500
Houston, TX 77057
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (713) 570-3000
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This document includes "forward-looking" statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Other than statements of historical fact, all statements
regarding industry prospects, the consummation of the transactions described in
this document and the Company's expectations regarding the future performance of
its businesses and its financial position are forward-looking statements. These
forward-looking statements are subject to numerous risks and uncertainties.
Item 5. Other Events
Restricted Stock Award Program
In January 2003, Crown Castle International Corp. ("Company") will grant,
pursuant to the Company's 2001 Stock Incentive Plan, approximately 6,000,000
shares of restricted stock to over 350 of its employees, including 1,770,000
shares of restricted stock to seven of its senior executive officers ("Executive
Officers"), as described in more detail below. The shares awarded will be
recognized as non-cash general and administrative compensation charges in the
Company's consolidated statement of operations over the vesting period of the
restricted stock, based on the fair market value of the shares at the grant
dates. The restricted stock is being issued in lieu of the Company's annual
stock option grants for 2003.
The shares of restricted stock will be granted subject to the terms of the
Restricted Stock Agreements to be executed in connection with such grants and
will generally vest (i.e., the transfer and forfeiture restrictions terminate)
in the largest aggregate number of shares vesting pursuant to either (i) Time
Vesting (defined below) or (ii) Performance Vesting (defined below). The
restricted stock vests over time at 10%, 15%, 20%, 25% and 30% respectively, on
each November 14 for the years 2003 through 2007 ("Time Vesting"). Performance
Vesting relates to target increases in the per share closing price of the
Company's common stock ("Stock") at or above a base price of $3.69. The base
price is equal to the average closing price per share of Stock for a period of
five trading days established by the Company's Board of Directors at the time it
approved the granting of restricted stock. If and when the Stock closes at or
above per share prices equal to 150% of the base price ($5.54), 225% of the base
price ($8.30) and 337% of the base price ($12.45) for 20 consecutive trading
days, 33% of the restricted stock performance vests upon reaching each price
target ("Performance Vesting"). If a restricted stockholder's employment with
the Company is terminated, any remaining, unvested shares of restricted stock
which such individual holds are generally forfeited and surrendered to the
Company.
The grant of restricted stock to certain officers of the Company will be
conditioned upon such officers executing agreements containing certain
restrictions, including non-compete, non-solicitation and/or minimum stock
ownership provisions. The Executive Officers listed below were granted the
following number of shares of restricted stock:
Shares of Minimum
Restricted Share
Name Title Stock Holdings
- ---- ------- ------------- ------------
John P. Kelly Chief Executive Officer & President 600,000 65,000
W. Benjamin Moreland Senior Vice President, Chief Financial Officer & 300,000 43,000
Treasurer
E. Blake Hawk Executive Vice President & General Counsel 215,000 47,000
Edward W. Wallander President & Chief Operations Officer, Crown Castle 225,000 43,000
USA, Inc.
Peter G. Abery President & Managing Director, Crown Castle UK Limited 200,000 39,000
Robert E. Giles Executive Vice President-Strategic Business Units 130,000 41,000
Michael T. Schueppert Senior Vice President-Business Development 100,000 32,000
Each of the Executive Officers has executed an agreement that contains all of
the restrictions mentioned above and which either replaces or supplements
existing severance agreements with such Executive Officer. More specifically,
each of the agreements has provisions that generally prohibit an Executive
Officer, for a period of 12 months following the termination of such officer's
employment with the Company, from (1) engaging in business activities relating
to wireless communication or broadcast towers which compete with the Company or
its affiliates in the United States, the United Kingdom or Australia and (2)
soliciting employees of the Company and its affiliates. Further, the agreements
contain provisions requiring each of the Executive Officers to own and hold at
all times during his employment with the Company, a specified number of shares
of Stock as indicated above (an aggregate of 310,000 shares of Stock), which
number does not include unvested restricted stock which remain subject to
transfer and forfeiture restrictions. The Executive Officers already own an
aggregate of 451,730 shares of Stock, and an Executive Officer who does not own
the required minimum number of shares of Stock has until November 14, 2004 to
acquire such shares.
If an Executive Officer is terminated without cause or the officer terminates
his employment for good reason (other than during a change in control period),
then most of the agreements provide that the shares of restricted stock
described above and awarded to such officer will generally continue to vest as
if the officer were an employee of the Company for three years after such
termination. The agreements will generally continue severance compensation terms
the same as those contained in previously existing severance agreements
(summarized in the Company's Proxy Statement as filed with the SEC on April 24,
2002).
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Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit No. Description
----------- ------------
10.1 Form of Restricted Stock Agreement
10.2 Form of Severance Agreement, as executed by John P. Kelly,
W. Benjamin Moreland, E. Blake Hawk, Edward W. Wallander,
Robert E. Giles, and Michael T. Schueppert
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ E. Blake Hawk
------------------------------
Name: E. Blake Hawk
Title: Executive Vice President and
General Counsel
Date: January 7, 2003
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EXHIBIT INDEX
Exhibit No. Description
----------- ------------
10.1 Form of Restricted Stock Agreement
10.2 Form of Severance Agreement, as executed by John P. Kelly,
W. Benjamin Moreland, E. Blake Hawk, Edward W. Wallander,
Robert E. Giles, and Michael T. Schueppert
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EXHIBIT 10.1
RSA____
RESTRICTED STOCK AGREEMENT
AGREEMENT effective as of the ___ day of January, 2003 ("Issuance Date"),
between CROWN CASTLE INTERNATIONAL CORP. ("Company"), a Delaware corporation,
and _______________________ ("Holder").
Holder has been serving as a key employee of the Company and/or one of its
Affiliates. In recognition of past service and in order to encourage Holder to
remain with the Company and its Affiliates (the "Group") and devote Holder's
best efforts to their affairs, thereby advancing the interests of the Company
and its shareholders, the Company and Holder agree as follows:
1. Issuance of Stock. Upon the execution of this Agreement and for
consideration from Holder to the Company in the form of past services to the
Group, the fair market value of which is at least equal to $.01 per share times
the number of the shares issued hereunder, the Company shall issue to Holder
____________________ shares of the $.01 par value Common Stock of the Company
("Stock"). The shares of Stock issued to Holder under this Agreement ("Holder's
Shares") shall be subject to all of the terms, conditions and restrictions set
forth in this Agreement and in the Crown Castle International Corp. 2001 Stock
Incentive Plan (the "2001 Plan"), which is incorporated herein by reference as a
part of this Agreement. "Affiliate" and "Committee" shall have the meaning
contained in the 2001 Plan.
2. Forfeiture Restrictions. The Holder's Shares shall not be sold,
assigned, pledged, or otherwise transferred except as provided herein, and
Holder shall be obligated to forfeit and surrender, without further
consideration from the Company, such shares (to the extent then subject to the
Forfeiture Restrictions) to the Company in accordance with this Agreement. The
prohibition against transfer and the obligation to forfeit and surrender shares
to the Company are herein collectively referred to as the "Forfeiture
Restrictions," and the Holder's Shares which are subject to the Forfeiture
Restrictions are herein sometimes referred to as "Restricted Shares." The
Forfeiture Restrictions shall be binding upon and enforceable against any
transferee of Restricted Shares.
3. Performance Measures. (a) Except as otherwise provided in Section 4
hereof, the lapsing of the Forfeiture Restrictions on the Restricted Shares
hereunder shall be contingent upon meeting the applicable time measure ("Time
Measure") or stock price target measure ("Target Measure") described below while
Holder is an employee or a member of the board of directors of the Company or
one of its Affiliates. The applicable measure ("Measure") is either the Time
Measure or Target Measure determined by the Measure that results in the largest
aggregate number of Holder's Shares no longer being Restricted Shares.
(b) The Time Measure is the date indicated below with the percentage beside such
date being the percentage of the Holder's Shares no longer subject to the
Forfeiture Restrictions.
Time Measure Date Incremental Percentage Aggregate Percentage
- ----------------- ---------------------- --------------------
November 14, 2003 10% 10%
November 14, 2004 15% 25%
November 14, 2005 20% 45%
November 14, 2006 25% 70%
November 14, 2007 30% 100%
(c) The Target Measure is the date that the price of a share of Stock closes at
a price equal to or above the price indicated below for twenty (20) consecutive
trade days after the Issuance Date with the percentage beside the stock price
per share being the percentage of the Holder's Shares no longer subject to
Forfeiture Restrictions.
Stock Price Per Share Incremental Percentage Aggregate Percentage
- --------------------- ---------------------- --------------------
$ 5.54 33.33% 33.33%
$ 8.30 33.33% 66.66%
$12.45 33.34% 100.00%
The closing price of a share of Stock shall be the closing quotation on the New
York Stock Exchange for the applicable date.
(d) As soon as administratively feasible after a Measure is satisfied that
causes the lapse of Forfeiture Restrictions as to Restricted Shares, the
Committee shall certify in writing that the applicable Measure has been
satisfied and the Forfeiture Restrictions shall lapse as to the Restricted
Shares as described above. The period from the effective date of this Agreement
to the date of the Committee's determination as to whether or not an applicable
Measure was satisfied is sometimes hereinafter called the "Restricted Period".
4. Termination of Employment of Service. If Holder terminates employment or
service with the Group prior to the end of the Performance Period, then this
Restricted Stock Award shall be forfeited and the remaining Restricted Shares
shall be surrendered to the Company; provided, however, that the Committee may
(subject to restrictions in the 2001 Plan), in its sole discretion, cause the
Forfeiture Restrictions to lapse as to all or a part of the Restricted Shares.
5. Shares Received in Reorganization or Stock Split. The transfer
restrictions of Section 2 shall not apply to the exchange of Restricted Shares
pursuant to a plan of reorganization of the Company, but the stock or securities
received in exchange therefor, and any stock received as a result of a stock
split or stock dividend with respect to Restricted Shares, shall also become
Restricted Shares subject to the Forfeiture Restrictions.
6. Endorsement on Certificate. Each certificate representing Restricted
Shares, if the shares of Restricted Stock are represented by a stock certificate
prior lapse of applicable Forfeiture Restrictions, shall be conspicuously
endorsed as follows:
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"The shares of Stock evidenced by this certificate have been issued
pursuant to the terms of the Crown Castle International Corp. ("Company")
2001 Stock Incentive Plan ("Plan"). The shares of Stock evidenced by this
certificate are subject to forfeiture and may not be sold, assigned,
pledged, or transferred except as provided by the terms and conditions of a
Restricted Stock Agreement ("Agreement") dated January __, 2003, between
the Company and the registered holder of the shares. A copy of the Plan and
Agreement are available from the Company.
7. Community Interest of Spouse. The community interest, if any, of any
spouse of Holder in any of the Restricted Shares shall be subject to all the
terms, conditions and restrictions of this Agreement, and shall be forfeited and
surrendered to the Company upon the occurrence of any of the events requiring
Holder's interest in such Restricted Shares to be so forfeited and surrendered
pursuant to this Agreement.
8. Withholding of Tax. To the extent the issuance of Stock or the lapse of
Forfeiture Restrictions results in the receipt of compensation by Holder for tax
purposes, Holder shall deliver to the Company such amount of money or shares of
Stock as the Company may require to meet its obligation under applicable tax
laws or regulations. The Company has the right to withhold Holder's Shares until
Holder has made arrangements approved by the Company to satisfy all applicable
minimum tax withholding requirements of the Company.
9. Tax Election. If Holder makes the election authorized by Section 83(b)
of the Code, Holder shall submit to the Company a copy of the statement filed by
Holder to make such election.
10. Stock Power and Retention of Certificates. The Company may require
Holder to execute and deliver to the Company a stock power in blank with respect
to the Restricted Shares and may, in its sole discretion, determine to retain
possession of the certificates for shares with respect to which the Forfeiture
Restrictions have not lapsed. The Company shall have the right, in its sole
discretion, to exercise such stock power in the event that the Company becomes
entitled to the shares pursuant to the provisions of Section 4 hereof.
Notwithstanding retention of such certificates by the Company, Holder shall,
subject to the provisions of Sections 3 and 4 hereof, have all rights (including
dividend and voting rights) with respect to the restricted shares. Upon lapse of
the Forfeiture Restrictions as to all or a part of the Restricted Shares, the
Company shall deliver to Holder a new certificate representing such Holder's
Stock without any restrictive endorsement.
11. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Holder.
12. Contract Terms. Notwithstanding the provisions of this Agreement, if
the Holder has entered into a separate contract or agreement with the Company
which affects the Restricted Shares issued hereunder, the provisions of such
separate contract or agreement shall control over any inconsistent provisions of
this Agreement.
13. Modification. Any modification of this Agreement will be effective only
if it is in writing and signed by each party whose rights hereunder are affected
thereby, except to the
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extent that such modification occurs pursuant to Section 11 of the 2001 Plan or
as a result of an amendment of the 2001 Plan made in accordance with Section 12
of the 2001 Plan.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to conflicts of
laws principles thereof.
IN WITNESS WHEREOF, the Company has executed this Agreement by its duly
authorized officers, and Holder and his or her spouse have executed this
Agreement, on the dates specified below.
CROWN CASTLE INTERNATIONAL CORP.
By:
----------------------------------
Name:
Title:
Date: January __, 2003
--------------------------------------
Holder
Date: January ___, 2003
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EXHIBIT 10.2
SEVERANCE AGREEMENT
SEVERANCE AGREEMENT, dated effective January ___, 2003 ("Commencement
Date") by and between Crown Castle International Corp. (the "Company") and
______________________________, (the "Executive").
This Agreement sets forth the terms and conditions of contingent severance
arrangements between the Company and the Executive and cancels and supersedes
all other severance-related agreements between the parties.
I. DEFINITIONS
For all purposes hereof, the following defined terms have the meanings set
forth below:
1.1 "Accrued Obligations" means all (i) accrued but unpaid Base Salary
to the Executive's Date of Termination, (ii) any earned but unpaid bonus
(other than the Current Annual Bonus), and (iii) any benefits for which the
Executive is eligible under the terms of any benefit Plan of the Company or
its subsidiaries.
1.2 "Annual Bonus" means the maximum annual bonus payable to the
Executive for any calendar year which is coextensive with a portion of the
Term, excluding any special or one-time bonus payments or supplements and
excluding any Stock Options or Restricted Stock Awards.
1.3 "Base Salary" means the greater of (i) the Executive's annual base
salary as of the date of Executive's Qualifying Termination (without taking
into account any reductions that constitute Good Reason) or (ii) if
applicable, the Executive's annual base salary in effect on the date of a
Change in Control.
1.4 "Cause" means (i) the Executive's conviction of, or plea of guilty
or nolo contendere to, any criminal violation involving dishonesty, fraud
or breach of trust, or any felony which materially adversely affects the
Company or (ii) willful engagement by the Executive in gross misconduct in
the performance of duties owed the Company that materially adversely
affects the Company.
1.5 "Change in Control" has the meaning set forth on Schedule 1
hereto.
1.6 "Change in Control Period" means the period beginning on the date
of a Change in Control and ending on the second anniversary of that Change
in Control.
1.7 "Company" means Crown Castle International Corp. and any
successors thereto.
1.8 "Current Annual Bonus" means the Annual Bonus for the calendar
year with the Date of Termination that would otherwise be paid to Executive
except for termination of employment and prorated on a daily basis from the
beginning of the calendar year to the Date of Termination.
1.9 "Date of Termination" means the effective date of the termination
of the Executive's employment with the Company and its subsidiaries (as set
forth in the Notice of Termination, if applicable).
1.10 "Disability" means the Executive's inability to perform the
primary duties of Executive's position for at least 180 consecutive days
due to a physical or mental impairment and confirmed by a medical
examination to the Company's satisfaction.
1.11 "Good Reason" means (i) the assignment to the Executive of any
duties materially inconsistent with the Executive's position, authority,
duties or responsibilities as of the date hereof or as of the date
immediately preceding a Change in Control, if applicable, or any other
action by the Company that results in a material diminution in such
position, authority, duties or responsibilities; (ii) a decrease in the
Executive's Base Salary or annual or long term bonus opportunity; (iii) a
material reduction in any material benefits or other compensation provided
to the Executive; or (iv) the Company requiring the Executive to be based
at any office or location outside the Pittsburgh metropolitan area; (v) the
Company's material failure to comply with its obligations under this
Agreement; or (vi) the Company giving Notice (as defined in Section 2.1
(i)). For purposes of any determination regarding the existence of Good
Reason during the Change in Control Period, any good faith determination by
the Executive that Good Reason exists shall be presumed to be correct
unless the Company establishes by clear and convincing evidence that Good
Reason does not exist.
1.12 "Non-Qualifying Termination" means any termination of the
Executive's employment with the Company and its subsidiaries other than a
Qualifying Termination.
1.13 "Normal Option Expiration Date" means the normal expiration of
each of the Stock Options without taking into account any accelerated
expiration date provisions relating to termination of employment, board
membership or otherwise.
1.14 "Notice of Termination" means a written notice of the termination
of the Executive's employment that (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable
detail, if applicable, the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated and (iii) if the Date of Termination is other than the date of
receipt of such notice, specifies the termination date. The failure by the
Executive to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason shall not waive
any right of the Executive hereunder or preclude the Executive from
asserting such fact or circumstance in enforcing the Executive's rights
hereunder.
1.15 "Plan" means any plan, program, practice, arrangement or policy.
1.16 "Plan Economic Equivalent" means (i) the costs of a reasonable
comparable substitute Plan selected by the Executive and Company for any
Plan which does not permit the Executive's continued participation after
the Date of Termination plus a gross up amount for any increases in net
income taxes to the Executive relating to such provision of a substitute
Plan or (ii) if Executive becomes covered by another benefit Plan, the
Company's incremental costs savings of not providing such benefits to the
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Executive, commencing 30 days after written notice from Executive to
terminate such benefits plus any additional reasonable Plan or benefit
notice or termination period the Company reasonably needs to receive costs
savings.
1.17 "Qualifying Termination" means (i) the Company's termination of
the Executive's employment with the Company for any reason other than for
Cause or Disability or death or (ii) the Executive's termination of
employment with the Company within 60 days of the occurrence of an event
that constitutes Good Reason. A transfer of the Executive to any subsidiary
of the Company shall not be considered a termination of employment
hereunder.
1.18 "Restricted Stock Awards" means restricted stock awards, phantom
stock awards and other similar equity-based incentive compensation awards
granted to the Executive relating to stock of the Company; provided, such
awards exclude Stock Options.
1.19 "Stock Options" means stock options granted to the Executive to
acquire stock of the Company.
1.20 Other Terms. Other capitalized term shall have the meaning
indicated within this Agreement.
II. TERM AND POSITION
2.1 Term. This Agreement is effective as of the Commencement Date and
terminates on the fifth anniversary of the Commencement Date (the "Term");
provided that, (i) beginning on the fifth anniversary of the Commencement
Date and each anniversary thereafter (each, an "Anniversary Date") the Term
shall be extended by 12 months unless either party provides notice (the
"Notice") at least 60 days before any such Anniversary Date of his or its
intent to terminate this Agreement as of such Anniversary Date, (ii) except
as provided in (iii) below, the Term will automatically expire on the
Executive's 65th birthday without the necessity of any notice from the
Executive or the Company, and (iii) notwithstanding (ii) above, if a Change
in Control occurs during the Term, this Agreement shall not expire until
the later of (a) the expiration of the Term or (b) the end of the Change in
Control Period.
2.2 Position. During the Term, the Executive shall serve as
_____________ of the Company, or such other position agreed to in writing
by the Company and Executive.
III. TERMINATION OF EMPLOYMENT
3.1 Termination by the Executive.
(a) Termination for Good Reason. The Executive may terminate
Executive's employment during the Term for Good Reason by delivering a
Notice of Termination to the Company in accordance with Section 6.8
within 60 days of the occurrence of the event purported to constitute
"Good Reason" hereunder. With respect to any termination for Good
Reason during the Change in Control Period, any good faith
determination of "Good Reason" made by the Executive shall be
conclusive.
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(b) Termination Without Good Reason. The Executive may terminate
Executive's employment during the Term without Good Reason by
delivering a Notice of Termination to the Company in accordance with
Section 6.8 at least 15 days prior to the effective date of such
termination.
3.2 Termination by the Company.
(a) Termination for Cause. The Company may terminate the
Executive's employment during the Term for Cause by delivering to the
Executive in accordance with Section 6.8 a Notice of Termination and a
copy of a resolution, duly adopted by the affirmative vote of not less
than a majority of the entire membership of the Board of Directors of
the Company (the "Board"), including at least 66-2/3% of those members
of the Board who are not employees of the Company at a meeting of the
Board called and held for the purpose (after reasonable notice to the
Executive and an opportunity for Executive, together with counsel, to
be heard before the Board), finding that in the good faith opinion of
the Board, the Executive was guilty of conduct specified in the
definition of "Cause".
(b) Termination Without Cause. The Company may terminate the
Executive's employment during the Term without Cause by delivering a
Notice of Termination to the Executive in accordance with Section 6.8.
3.3 Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Term. If the Company
determines in good faith that the Disability of the Executive has occurred
during the Term, it may give to the Executive a Notice of Termination in
accordance with Section 6.8 of this Agreement. In such event, the
Executive's employment shall terminate effective on the 30th day after
receipt of such notice, provided that within the 30 days after such
receipt, the Executive shall not have returned to full-time performance of
the Executive's duties.
IV. BENEFITS UPON TERMINATION
4.1 Qualifying Termination Not Within the Change in Control Period.
If, during the Term, the Executive's employment with the Company and its
subsidiaries is terminated in a Qualifying Termination and such termination
does not occur during a Change in Control Period:
(a) the Company shall pay to the Executive in a cash lump sum
within 30 days after the Date of Termination, the sum of (i) all
Accrued Obligations and (ii) the product of two times the sum of the
Executive's Base Salary and Annual Bonus;
(b) for two years following the Date of Termination, or such
longer period as each Plan may provide, the Company shall continue
medical, dental, vision, disability and death benefits to the
Executive and the Executive's family at a level at least equal to
those that would have been provided if the Executive's
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employment had not been terminated under such Plan of the Company
applicable to the Executive as of the Date of Termination (with
payment of the Plan Economic Equivalent as to each Plan (i) that does
not permit the Executive's continued participation or (ii) that the
Executive becomes covered under another Plan with similar or
comparable benefits (after 30 days notice to the Company));
(c) all Stock Options and all Restricted Stock Awards (other than
Restricted Stock Awards granted to the Executive on January 7, 2003
("2003 RSA")) held by the Executive shall become immediately vested
and such Stock Options shall become immediately exercisable, and the
2003 RSA held by the Executive shall continue to vest as if the
Executive was an employee of the Company for the three year period
after the Date of Termination ("Vesting Period");
(d) the Company shall pay the Executive the Current Annual Bonus
when and if annual bonuses for the year of termination are paid to
other executive officers of the Company;
(e) the Executive shall be entitled to fully participate in the
Company's 401(k) plan for the calendar year with the Date of
Termination including the Company contributions based upon
participation or matching (with payment of the after-tax economic
equivalent if and to the extent such is not permitted under the
Company's 401(k) plan or by applicable law)); and
(f) the Executive shall, as of such termination, be released by
the Company (including its subsidiaries) from any and all claims and
causes of action of any kind or character arising from Executive's
employment with the Company (including its subsidiaries and any board
membership relating to employment) and the Company shall indemnify and
hold harmless the Executive against any such claims or causes of
action to the extent permitted by applicable law.
4.2 Qualifying Termination During the Change in Control Period. If,
during the Term, the Executive's employment with the Company and its
subsidiaries is terminated in a Qualifying Termination and such termination
occurs during a Change in Control Period:
(a) the Company shall pay to the Executive in a cash lump sum within
30 days after the Date of Termination, the sum of (i) all Accrued
Obligations and (ii) the product of three times the sum of the Executive's
Base Salary and Annual Bonus;
(b) for three years following the Date of Termination, or such longer
period as each Plan may provide, the Company shall continue medical,
dental, vision, disability and death benefits to the Executive and the
Executive's family at a level at least equal to those that would have been
provided if the Executive's employment had not been terminated under such
Plan of the Company applicable to the Executive as of the Date of
Termination (with payment of the Plan Economic Equivalent as to each Plan
(i) that does not permit the Executive's continued participation or (ii)
that the Executive becomes covered by another Plan with similar or
comparable benefits (after 30 days notice to the Company));
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(c) all Stock Options and all Restricted Stock Awards held by the
Executive shall become immediately vested and such Stock Options shall
become immediately exercisable.
(d) the Company shall pay the Executive the Current Annual Bonus when
and if annual bonuses for the year of termination are paid to other
executive officers of the Company;
(e) the Executive shall be entitled to fully participate in the
Company's 401(k) plan for the calendar year with the Date of Termination
including the Company contributions based upon participation or matching
(with payment of the after-tax economic equivalent if and to the extent
such is not permitted under the Company's 401(k) plan or by applicable
law); and
(f) the Executive shall, as of such termination, be released by the
Company (including its subsidiaries) from any and all claims and causes of
action of any kind or character arising from Executive's employment with
the Company (including its subsidiaries and any board membership relating
to employment) and the Company shall indemnify and hold harmless the
Executive against any such claims or causes of action to the extent
permitted by applicable law.
Any provision in this Agreement to the contrary notwithstanding, if a
Change in Control occurs and if the Executive's employment with the Company
is terminated prior to the date on which the Change in Control occurs, and
if it is reasonably demonstrated by the Executive that such termination of
employment (x) was at the request of a third party who had taken steps
reasonably calculated to effect the Change in Control or (y) otherwise
arose in connection with or anticipation of the Change in Control, then for
all purposes of this Agreement the termination of the Executive's
employment shall be deemed to have occurred during a Change in Control
Period.
4.3 Non-Qualifying Termination. If the Executive's employment with the
Company and its subsidiaries is terminated in a Non-Qualifying Termination,
this Agreement shall terminate without further obligations to the Executive
other than Accrued Obligations; provided, that, if the Executive's
employment is terminated due to Executive's death or Disability, all Stock
Options and all Restricted Stock Awards (other than the 2003 RSA) held by
the Executive shall become immediately vested and exercisable, and the 2003
RSA held by the Executive shall continue to vest as if the Executive was an
employee of the Company for the Vesting Period.
4.4 Option Exercise and Termination. All vested Stock Options granted
to the Executive (including Stock Options vested pursuant to this
Agreement) shall be exercisable for 24 months following the later of (a)
the Date of Termination or (b) the date that Executive ceases to be a
member of the Board and a member of the board of director of any of the
Company subsidiaries; provided that the exercise period shall (i) extend to
any longer period for exercise of Stock Options pursuant to the applicable
stock option agreement or certificate for such Stock Options and (ii) not
extend beyond the Normal Option Expiration Date. The Company as to Stock
Options granted to the
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Executive may not (a) require the exercise of such Stock Options, (b)
reduce the exercise period for such Stock Options or (c) otherwise take
action to circumvent the exercise period for such Stock Options as provided
above. The above provisions shall supercede any contrary provisions in any
stock option agreement, stock option certificate or other document.
4.5 Excise Tax Payments.
(a) Notwithstanding anything in the Agreement to the contrary, in
the event of the determination (as hereinafter provided) that any
required payment by the Company to or for benefit of the Executive
(whether paid or payable pursuant to the terms of the Agreement or
otherwise (individually and collectively, "Payment")) would be subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended (the "Code") or any successor provision thereto
(the "Excise Tax"), the Executive shall be entitled to receive an
additional payment or payments (individually or collectively, "Tax
Assistance Payment"), which shall include an amount such that, after
the Executive pays (1) all taxes (including any interest or penalties
imposed with respect to such taxes) and (2) any Excise Tax (including
interest and penalties with respect thereto) imposed upon the Tax
Assistance Payment, the Executive retains so much of the Tax
Assistance Payment as is equal to the Excise Tax (including interest
and penalties with respect thereto) imposed on the Payment.
(b) Subject to the provisions hereinafter concerning the
provision of notice of a claim by the Internal Revenue Service
("IRS"), all determinations required to be made under these
provisions, including whether an Excise Tax is payable by the
Executive, the amount of such Excise Tax and whether the Company is
required to pay the Executive a Tax Assistance Payment and the amount
of such Tax Assistance Payment, if any, shall be made by the Company's
independent accountants or such other nationally recognized accounting
firm retained by the Company and reasonably acceptable to the
Executive ("Accounting Firm"). The Company shall direct the Accounting
Firm to submit its determination and detailed supporting calculations
to both the Executive and the Company within 30 days after the payment
or provision of any benefit that could give rise to an Excise Tax and
any such other time or times as the Executive or the Company may
request. If the Accounting Firm determines that any Excise Tax is
payable by the Executive, the Company shall pay the required Tax
Assistance Payment to the Executive within 10 business days after the
Company receives such determination and calculations with respect to
any Payment to the Executive.
(c) Any federal tax returns the Executive files shall be prepared
and filed on a basis consistent with the determination of the
Accounting Firm with respect to the Excise Tax payable by the
Executive. If the Accounting Firm determines that the Executive is
required to pay no Excise Tax, it shall (at the same time it makes
such determination) furnish the Executive and the Company an opinion
that the Executive has substantial authority not to report any Excise
Tax on the Executive's federal income tax return. However, in view of
the uncertainty concerning application of Section 4999 of the Code (or
any successor provision thereto) at the time of any determination made
hereunder by the Accounting Firm,
7
it is possible that a Tax Assistance Payment that should have been
made by the Company will not have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the
event the Company exhausts or fails to pursue its remedies pursuant to
the provisions concerning notice of a claim by the IRS, and the
Executive thereafter is required to make a payment of any Excise Tax,
the Executive shall direct the Accounting Firm to determine the amount
of the Underpayment and to submit its determination and detailed
supporting calculations as promptly as possible both to the Executive
and to the Company, which shall pay the amount of such Underpayment to
the Executive or for the Executive's benefit within 10 business days
following the Company's receipt of such determination and
calculations.
(d) Each of the Executive and the Company shall provide the
Accounting Firm access to and copies of any books, records and
documents in the Executive's or its possession, as the case may be,
reasonably requested by the Accounting Firm, and shall otherwise
cooperate with the Accounting Firm in connection with the preparation
and issuance of the determination and calculations required or
contemplated hereunder.
(e) The Company shall bear the fees and expenses of the
Accounting Firm for services hereunder. If, for any reason, the
Executive initially pays such fees and expenses, the Company shall
reimburse the Executive the full amount of the same within 10 business
days following receipt from the Executive of a statement and
reasonable evidence of the Executive's payment thereof.
(f) The Executive shall notify the Company in writing of any
claim by the IRS that, if successful, would require the Company to pay
a Tax Assistance Payment. The Executive shall give such notification
as promptly as practicable, but in no event later than the 10th
business day next following the Executive's receipt of such claim, and
the Executive further shall apprise the Company of the nature of such
claim and the date on which it is required to be paid (in each case,
to the extent known to the Executive). The Executive shall not pay or
otherwise satisfy such claim prior to the earlier of (a) the
expiration of the 30 calendar day period next following the date on
which the Executive gives notice to the Company or (b) the date any
payment of the amount with respect to such claim is due. If the
Company notifies the Executive in writing prior to the expiration of
such period that it desires to contest such claim, the Executive
shall:
(i) provide the Company any written records or documents in
the Executive's possession relating to such claim and reasonably
requested by the Company;
(ii) take such action in connection with contesting such
claim as the Company reasonably shall request in writing from
time to time, including without limitation accepting legal
representation with respect to such claim by an attorney
competent in respect of the subject matter and reasonably
selected by the Company;
8
(iii) cooperate with the Company in good faith in order to
effectively contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim, provided, however, that the Company
directly shall bear and pay all costs and expenses (including
without limitation, interest and penalties) incurred in
connection with such contest and shall indemnify the Executive
and hold the Executive harmless, on an after-tax basis, from and
against any and all Excise Tax or income tax (including without
limitation, interest and penalties with respect thereto), imposed
as a result of such claim and payment of costs and expenses.
Without limiting the foregoing, the Company shall control all
proceedings taken in connection with the contest of any claim
contemplated by these provisions and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of
such claim (provided, however, that the Executive may participate
therein at the Executive's own cost and expense) and may, at its
option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company
directs the Executive to pay the tax claimed and to sue for a
refund, the Company shall advance the amount of such payment to
the Executive, and pay on a current basis all costs of
litigation, including without limitation attorneys' fees, on an
interest-free basis and shall agree to and shall indemnify the
Executive and hold the Executive harmless, on an after-tax basis,
from any Excise Tax or income tax, including without limitation,
interest and penalties with respect thereto, imposed with respect
to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of
taxes for the Executive's taxable year with respect to which the
contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, the Company's control of any such
contested claim shall be limited to issues with respect to which
a Tax Assistance Payment would be payable hereunder, and the
Executive shall be entitled to settle or to contest, as the case
may be, any other issue(s) raised by the IRS or any other taxing
authority.
(g) If, after the Executive receives an amount advanced by the
Company pursuant to provisions of the last full paragraph, the
Executive receives any refund with respect to such claim, the
Executive shall (subject to the Company's complying with any
applicable provisions of the same paragraph) promptly pay to the
Company the amount of such refund (together with any interest paid or
credited thereon after any taxes applicable thereto). If, after the
Executive receives such an amount advanced by the Company, a
determination is made that the Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify the
Executive in writing of its intent to contest such denial of refund
prior to expiration of 30 calendar days after such determination, then
such advance shall be forgiven and shall not be required to be repaid,
and the
9
amount of such advance shall offset, to the extent thereof, the amount
of the Tax Assistance Payment the Company is required to pay the
Executive hereunder.
V. NONCOMPETITION OBLIGATIONS
The Executive shall be subject to the following noncompetition obligations:
(a) As consideration for the Severance Agreement as provided herein,
the Company and the Executive agree to the noncompetition obligations
hereunder. From the effective date of this agreement and continuing for a
period of 12 months from the Date of Termination, the Executive shall not
personally engage in any "Competitive Activities" (as defined below) within
any geographic area in the United States, the United Kingdom or Australia
in which the Company or any of its Affiliates is then engaged in
Competitive Activities ("Restricted Areas"); including, without limitation,
working for, owning, managing, operating, controlling or participating in
the ownership, management, operation or control of, or providing consulting
or advisory services to, any individual partnership, firm, corporation,
institution, entity or other person ("person") engaged in Competitive
Activities within any Restricted Areas; provided, however, that the
purchase or holding for investment purposes only, of securities of a
company shall not constitute "ownership" or "participation in ownership"
for these purposes so long as the equity interest in any such company
represents less than 5% of the outstanding capital stock of such company.
Anything herein to the contrary notwithstanding, no person shall be deemed
engaged in Competitive Activities if less than 5% of its revenues are
derived from "Competitive Activities" as defined in the next paragraph.
For such purposes above, "Competitive Activities" mean any business
activity involving or relating to owning or operating wireless
communication or broadcast towers located in the Restricted Area; provided,
however, that if the Company is advised of a business opportunity by the
Executive as provided below, and it declines to pursue such business
opportunity, the Executive shall be free to pursue such business
opportunity and such activity shall not be a "Competitive Activity." If
after the Date of Termination the Executive becomes aware of a business
opportunity which involves a Competitive Activity in the Restricted Area,
the Executive shall fully advise (in writing and indicating that such
information is pursuant to this provision) the Company as to such
opportunity and will not pursue it except as provided herein. If, within 15
business days of the Executive's advising the Company of such business
opportunity, the Board fails to adopt a resolution (and provide a certified
copy to the Executive) that it will pursue such business opportunity, the
Company will be deemed to have declined to pursue such opportunity. If,
after a vote by the Board in favor of pursuing a business opportunity, the
Company "fails to pursue" such opportunity, then the Company, including for
this purpose the Board, shall be deemed to have declined to pursue such
business opportunity as of the date it "fails to pursue" such opportunity.
"Fails to pursue" means that the Company has failed to pursue such
opportunity in a reasonable commercial manner and "fails to pursue" is
irrebutably presumed if (x) within 30 days of such vote, the Company has
not signed a confidentiality agreement with the parties representing such
business opportunity; (y) within 60 days of such vote, the Company has not
begun the due diligence process regarding such business opportunity; or (z)
within 120 days of such vote, the Company is not in active discussions, or
has otherwise terminated its discussions with the parties representing such
business opportunity.
10
Notwithstanding anything to the contrary in this Section V(a), activities
shall not be deemed to be "Competitive Activities" solely as a result of
the Executive's being employed by or otherwise associated with a business
of which a unit is in competition with the Company but as to which unit
Executive does not have direct or indirect responsibility or direct
involvement.
For purposes of this Agreement, "Affiliate" of a specified person means a
person that directly or indirectly controls, is controlled by, or is under
common control with the person specified.
(b) For a period of 12 months from the Date of Termination, the Executive
shall not knowingly induce any employee of the Company or any of its
Affiliates to terminate his or her employment with the Company or any of
the Affiliates to work with or for the Executive or any of Executive's
future employers and provided further that the Executive's response to
unsolicited requests for employment references for employees of the Company
shall not be a violation of this restriction.
(c) The Executive understands that the restrictions set forth in (a) and
(b) above may limit the Executive's ability to engage in certain businesses
in the Restricted Areas during the 12-month period provided for in (a) and
(b) above, but acknowledges that the Executive will receive sufficiently
high remuneration and other benefits under this Severance Agreement to
justify such restrictions. The Executive acknowledges that money damages
would not be sufficient remedy for any breach of the provisions of (a) and
(b) above by the Executive, and the Company shall be entitled to enforce
such provisions by specific performance and injunctive relief as remedies
for such breach or any threatened breach. Such remedies shall not be deemed
the exclusive remedies for such breach, but shall be in addition to all
remedies available at law or in equity to the Company, including without
limitation, the recovery of damages from the Executive and the Executive's
agents involved in such breach and remedies available to the Company
pursuant to other agreements with the Executive. Notwithstanding the
foregoing, in the event that the Executive and/or the Executive's agents
breach the restrictions set forth in clauses (a) and/or (b), the Company
shall in no circumstances be entitled to recover damages or other
compensation in respect of all such breaches in excess of the amount paid
to Executive pursuant to Section 4.1(a)(ii) or 4.2(a)(ii), as applicable,
reduced by an amount equal to the Executive's Base Salary and Annual Bonus.
(d) It is expressly understood and agreed that the Company and the
Executive consider the restrictions contained in (a) and (b) above to be
reasonable and necessary to protect the business of the Company.
Nevertheless, if any of the aforesaid restrictions are found by an
arbitrator or a court having jurisdiction to be unreasonable, or overly
broad as to geographic area or time, or otherwise unenforceable, the
parties intend for the restrictions therein set forth to be modified by
such arbitrator or court so as to be reasonable and enforceable and, as so
modified by such arbitrator or court, to be fully enforced.
VI. MISCELLANEOUS PROVISIONS
11
6.1 Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other Plan provided by the Company or any of its
Affiliates and for which the Executive may qualify (including, without
limitation, any insurance benefits relating to death or Disability of the
Executive), nor shall anything herein limit or otherwise affect such rights
as the Executive may have under any other agreements with the Company or
any of its Affiliates ; provided that, by executing this Agreement, the
Executive acknowledges Executive's ineligibility for, and waives any other
right Executive may have to receive, any other severance or termination
benefits provided by the Company or its subsidiaries. Amounts which are
vested benefits or which the Executive is otherwise entitled to receive
under any Plan of the Company or any of its Affiliates (other than any
severance plan or program of the Company and its subsidiaries) at or
subsequent to the Date of Termination shall be payable in accordance with
such Plan except as explicitly modified by this Agreement.
6.2 Other Payments and Obligations. The Company's obligation to make
the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may
have against the Executive or others. In no event shall the Executive be
obligated to seek other employment or take any other action by way of
mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement. The Company agrees to pay, from time to time
promptly upon invoice, to the full extent permitted by law, all legal fees
and expenses which the Executive may reasonably incur as a result of any
contest or controversy (regardless of the outcome thereof and whether or
not litigation is involved) by the Company, the Executive or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof.
6.3 Confidential Information.
(a) During the Term and thereafter, the Executive shall not,
without the written consent of the Chief Executive Officer of the
Company ("CEO") or the Board (including an applicable committee of the
Board) disclose to any person, other than (i) an employee of the
Company, (ii) a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of
Executive's duties as an executive of the Company, (iii) to the extent
required by applicable law (including any rule or regulation) or (iv)
to the extent necessary to enforce Executive's rights pursuant to this
Agreement, any material confidential information obtained by Executive
while in the employ of the Company or its subsidiaries with respect to
any of the products, improvements, formulas, designs or styles,
processes, customers, methods of distribution or methods of
manufacture of the Company or its subsidiaries, the disclosure of
which Executive knows will be materially damaging to the Company;
provided, however, that confidential information shall not include any
information known generally to the public (other than as a result of
unauthorized disclosure by the Executive) or any information of a type
not otherwise considered confidential by persons engaged in the same
business or a business similar to that conducted by the Company.
Information concerning a business opportunity described in Section
12
V (a) which the Company declines or "fails to pursue" shall not
constitute information for purposes of this section.
(b) Any and all inventions made, developed or created by the
Executive (whether at the request or suggestion of the Company or
otherwise, whether alone or in conjunction with others, and whether
during regular hours of work or otherwise) during the period of
Executive's employment by the Company or its subsidiaries, which may
be directly or indirectly useful in, or relate to, the business of or
tests being carried out by the Company or any of its subsidiaries,
will be promptly and fully disclosed by the Executive to an
appropriate executive officer of the Company and shall be the
Company's exclusive property as against the Executive, and the
Executive will promptly deliver to an appropriate executive officer of
the Company all papers, drawings, models, data and other material
relating to any invention made, developed or created by Executive as
aforesaid.
(c) The Executive will, upon the Company's request and without
any payment therefor, execute any documents necessary or advisable in
the opinion of the Company's counsel to direct issuance of patents to
the Company with respect to such inventions as are to be the Company's
exclusive property as against the Executive under Section 6.3 (b)
above or to vest in the Company title to such inventions as against
the Executive; provided, however, that the expense of securing any
such patent will be borne by the Company.
(d) The foregoing provisions of this Section 6.3 shall be binding
upon the Executive's heirs, successors and legal representatives.
(e) In no event shall an asserted violation of the provisions of
this Section 6.3 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive under this Agreement.
6.4 Release and Agreement. As a condition to the receipt of any
compensation and benefits under this Severance Agreement, if the
Executive's employment with the Company is subject to a Qualifying
Termination, the Executive must first execute a release and agreement, in a
reasonable commercial form, which shall release the Company and it
subsidiaries and their officers, directors, employees and agents from any
and all claims or causes of action arising out of the Executive's
employment with the Company or its subsidiaries or the termination of such
employment. The performance of the Company's obligations hereunder and the
receipt of the compensation and benefits provided hereunder by the
Executive shall constitute full settlement of all such claims and causes of
action and shall provide consideration for the Executive's release and
agreement as described above.
6.5 Indemnification; D&O Coverage
(a) If the Executive is made a party, is threatened to be made a
party, or reasonably anticipates being made a party, to any Proceeding
by reason of the fact that Executive is or was a director, officer,
member, employee, agent, manager, trustee, consultant or
representative ("Agent") of the Company or any of its Affiliates or is
or was serving at the request of the Company or any of its
13
Affiliates, as an Agent of another person or if any Claim is made, is
threatened to be made, or is reasonably anticipated to be made, that
arises out of or relates to the Executive's service in any of the
foregoing capacities, then the Executive shall promptly notify the
Company in writing and be indemnified and held harmless to the fullest
extent permitted or authorized by the Certificate of Incorporation or
Bylaws of the Company as in effect on the Date of Termination (subject
to any limitations imposed by applicable law), against any and all
costs, expenses, liabilities and losses (including, without
limitation, reasonable attorneys' and other professional fees and
charges, judgments, interest, expenses of investigation, penalties,
fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) incurred or suffered by the Executive in connection
therewith or in connection with seeking to enforce Executive's rights
under this Section 6.5(a), and such indemnification shall continue as
to the Executive even if he has ceased to be an Agent of the Company
or other person and shall inure to the benefit of the Executive's
heirs, executors and administrators. The failure to give prompt notice
shall only reduce the indemnification obligation to the extent, if
any, that the Company is damaged by such breach. The Executive shall
be entitled to prompt advancement of any and all costs and expenses
(including, without limitation, reasonable attorneys' and other
professional fees and charges) incurred by Executive in connection
with any such Proceeding or Claim to the fullest extent permitted or
authorized by the Certificate of Incorporation or Bylaws of the
Company as in effect on the Date of Termination (subject to any
limitations imposed by applicable law), any such advancement to be
made promptly after Executive gives written notice, supported by
reasonable documentation, requesting such advancement. Such notice
shall include, to the extent required by applicable law, an
undertaking by the Executive to repay the amounts advanced to the
extent that Executive is ultimately determined not to be entitled to
indemnification against such costs and expenses. Nothing in this
Agreement shall operate to limit or extinguish any right to
indemnification, advancement of expenses, or contribution that the
Executive would otherwise have (including, without limitation, by
agreement or under applicable law). For purposes of this Agreement,
"Claim" shall include, without limitation, any claim, demand, request,
investigation, dispute, controversy, threat, discovery request, or
request for testimony or information and "Proceeding" shall include,
without limitation, any actual, threatened, or reasonably anticipated,
action, suit or proceeding, whether civil, criminal, administrative,
investigative, appellate, formal, informal or other.
(b) Neither the failure of the Company (including its Board,
independent legal counsel or stockholders) to have made a
determination prior to the commencement of any Proceeding concerning
payment of amounts claimed by the Executive under Section 6.5(a) that
indemnification of the Executive is proper because Executive has met
the applicable standard of conduct, nor a determination by the Company
(including its Board, independent legal counsel or stockholders) that
the Executive has not met such applicable standard of conduct, shall
create a presumption that the Executive has not met the applicable
standard of conduct.
(c) A directors' and officers' liability insurance policy (or
policies) shall be kept in place until the sixth anniversary of the
Date of Termination, providing
14
coverage to the Executive that is no less favorable to Executive in
any respect (including, without limitation, with respect to scope,
exclusions, amounts, and deductibles) than the coverage then being
provided to any other present or former senior executive or director
of the Company.
6.6 Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be
enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place.
6.7 Statements Concerning Company or Executive. The Executive shall
refrain from willfully and knowingly making any public statement, whether
oral or written, about the Company, any of its Affiliates, any Executive
Officer or any Board Member, that is disparaging or defamatory to any such
person. The Company shall use best efforts to cause each Executive Officer
and Board Member to refrain from making any public statement, whether oral
or written, that is disparaging or defamatory to the Executive. For
purposes of this Section 6.7, an "Executive Officer" is the CEO and any
officer directly reporting to the CEO, and a "Board Member" is any
individual that is a member of the Board. A violation or threaten violation
of any of the above prohibitions may be enjoined by any court with
jurisdiction. The rights afforded under this provision are in addition to
any and all rights otherwise afforded by applicable law. Nothing shall
prevent the Executive or the Company from truthfully and publically
correcting incorrect statements or from making truthful disclosures to the
extent required (i) by law, by a government agency having supervisory
authority over the business of the Company or any of its Affiliates or by
any arbitrator, mediator or administrative or legislative body (including a
committee thereof) with apparent jurisdiction or (ii) to enforce this
Agreement.
6.8 Notices. All notices and other communications hereunder shall be
in writing and shall be given by (i) personal delivery, (ii) registered or
certified mail, return receipt requested, postage prepaid, addressed as
indicated below or (iii) nationally recognized overnight courier, with
written confirmation of receipt, addressed as indicated below:
If to the Executive:
Home address as currently shown on
Human Resources Department records of
15
Executive's business unit. The current home
address is:
-------------------------------------
-------------------------------------
If to the Company:
Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Attention: General Counsel/Corporate Secretary
A party may change address by written notice of such change in accordance
herewith. Notice and communications shall be effective when actually
received by the addressee.
6.9 Stock Retention. Executive agrees to own and hold by and after
November 14, 2004 at least 65,000 shares of Company common stock ("Retained
Stock") during his employment with the Company (including any of its
subsidiaries). The number of shares of Retained Stock shall be adjusted for
stock splits, stock dividends, spin offs and other relevant changes in the
Company's capital structure. Retained Stock shall include (i) restricted
stock issued to Executive that is no longer subject to a forfeiture
restriction, (ii) stock held in an individual retirement account, 401(k)
plan or other qualified plan pursuant to the Code for the primary benefit
of the Executive and/or Executive's spouse and (iii) stock held by the
Executive's spouse. Restricted stock granted to the Executive by the
Company that is subject to forfeiture restrictions shall not be counted as
Retained Stock.
6.10 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement
6.11 Withholding. The Company may withhold from any amount payable
under this Agreement such Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
6.12 Waiver. The Executive's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
6.13 Entire Agreement. This Agreement contains the entire
understanding of the Company and the Executive with respect to the subject
matter hereof.
6.14 At Will Employment. The Executive and the Company acknowledge
that the employment of the Executive by the Company is "at will".
6.15 Choice of Law. This Agreement shall be governed by the law of
Texas, without regard to its choice of law provisions.
16
6.16 Counterparts. This Agreement may be executed in two or more
counterparts.
IN WITNESS WHEREOF, the Executive and the Company have entered into this
Agreement as of the date first written above in multiple originals.
COMPANY:
CROWN CASTLE INTERNATIONAL CORP.
By:
--------------------------------------
EXECUTIVE:
------------------------------------------
17
SCHEDULE I
"Change in Control" shall mean:
(a) the acquisition by any individual, entity or group (within the
meaning of Sections 13 (d) (3) or 14 (d) (2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) (a "Person") or beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 40% or more of either (i) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition by the Company if no Person (excluding those Act Persons
described in this proviso) owns more than 40% or more of the Outstanding
Company Common Stock or Company Stock Voting Securities after such
acquisition, (ii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation controlled
by the Company, or (iii) any acquisition by a corporation pursuant to a
reorganization, merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses (i), (ii) and
(iii) of subsection (c), below, are satisfied.;
(b) individuals who constitute the Board after the initial public
offering of the Company's stock (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's stockholders, was
approved by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
(c) the occurrence of a reorganization, merger or consolidation,
unless, following such reorganization, merger or consolidation, (i) more
than 50% of, respectively, the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger or consolidation
and the combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of directors is
then beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger
or consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding the
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Company, any employee benefit plan (or related trust) of the Company or
such corporation resulting from such reorganization, merger or
consolidation and any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, 40% or
more of the Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or indirectly,
40% or more of, respectively, the then outstanding shares of common stock
of the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election
of directors and (iii) at least a majority of the members of the board of
directors of the corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such reorganization,
merger or consolidation; or
(d) the occurrence of: (i) a complete liquidation or dissolution of
the Company, (ii) the sale or other disposition of all or substantially all
of the assets of the Company, or (iii) a similar transaction or series of
transactions, other than to a corporation, with respect to which following
such sale or other disposition, (A) more than 50% of, respectively, the
then outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to
such sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding the Company and any employee benefit plan (or related trust) of
the Company or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, 40% or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be) beneficially
owns, directly or indirectly, 40% or more of, respectively, the then
outstanding shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors and (C) at least a
majority of the members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Company.
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