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EXHIBIT 10.2
AMENDMENT TO EXECUTIVE EMPLOYMENT AGREEMENT
This is an amendment (the "Amendment") effective as of June 30, 2001 (the
"Effective Date"), to the Executive Employment Agreement (the "Employment
Agreement") made as of May 3, 1995 between Pinnacle Towers Inc., a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxx (the "Employee"). The parties
desire to amend the Employment Agreement to reflect certain revisions thereto.
Accordingly, in consideration of the mutual agreements set forth below, the
parties agree as follows:
1. Section 2. Position and Duties. Section 2 of the Employment Agreement is
hereby deleted in its entirety and replaced with the following:
"2. POSITION AND DUTIES. The Company is in the business of
acquiring, owning, constructing, licensing, managing-for hire,
leasing, operating and divesting tower or other communications sites
and related properties (together with all reasonably related
activities, the "Business"). During the Employment Period, Employee
shall serve as a senior advisor to the Chief Executive Officer of the
Company and shall perform such duties as from time to time may be
prescribed to him by the Chief Executive Officer of the Company,
including consulting on various issues significant to the Company such
as implementing strategic plans and decisions and interfacing with
Company employees, customers, vendors and other Company constituents
in connection therewith. During the Employment Period, Employee shall
at all times in fact and in form be an employee of the Company. He
shall not be an officer of the Company. Commensurate with the reduced
level of compensation being paid to Employee by the Company, Employee
shall not be obligated to spend a majority of his time fulfilling his
employment duties to the Company. However, Employee's duties may
require Employee to work one or more full days from time-to-time in
carrying out specific duties required of Employee."
2. Section 3. Base Salary, Bonus and Benefits. Subsection (C) of Section 3 of
the Employment Agreement shall be deleted in its entirety and replaced with
"Intentionally Omitted." The title of Section 3 and Subsection (A) of Section 3
of the Employment Agreement shall be deleted in its entirety and replaced with
the following:
"3. SALARY AND REIMBURSEMENT OF EXPENSES
(A) Salary. During the Employment Period, Employee shall be
paid $100,000 per annum as compensation for services ("Salary") less
all deductions required by law. The Salary shall be payable in regular
installments in accordance with the Company's general payroll
practices. In addition, during the Employment Period, Employee shall
be entitled to continue to participate in all of the employee benefit
programs for which employees of the Company are
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generally eligible. This Amendment does not change any rights Employer
has under and to all of his existing stock options and rights under
the Pinnacle Holdings Inc. Stock Incentive Plan."
3. Section 4. Termination. For two (2) years from the Effective Date and only
if a Change in Control shall have occurred during such period, if Employee is
terminated on or after the Change in Control for any reason other than
resignation, death, disability or other incapacity or for Cause, the amount
payable to Employee for eighteen months pursuant to Section 4 shall be based
upon Employee's Base Salary in effect immediately prior to the execution of
this Amendment, as opposed to his Salary at the time of his termination of
employment.
4. Defined Terms. Capitalized Terms not otherwise defined herein have the
meaning ascribed to them by the Employment Agreement. The defined term "Salary"
shall replace the defined term "Base Salary" throughout the Employment
Agreement. The defined term "Executive" shall be changed to "Employee"
throughout the Employment Agreement. The term "Change in Control" has the same
meaning that is ascribed to the term in the option agreement between the
Company and Employee dated December 2000.
5. Change of Control of the Company If within two (2) years from the Effective
Date the Company has made a public announcement by means of a press release or a
public filing by the Company with the Securities and Exchange Commission that
the Company has entered into an agreement to consummate a proposed transaction
that, if consummated, would result in a Change in Control of the Company (the
"Transaction"), and if such Transaction closes within two (2) years from the
Effective Date and results in a Change in Control of the Company, then the
Employee shall be entitled to a cash payment, less all deductions required by
law, within ten (10) days of such Change in Control in an amount equal to the
lesser of (A) three (3) times Employee's Base Salary in effect immediately prior
to the execution of this Amendment, or (B) an amount to be computed by
multiplying (i) the Employee's average annual compensation payable by the
Company that was includible in the Employee's gross income for the most recent
five (5) calendar years ending coincident with or immediately before the date on
which the Change of Control occurs by (ii) three hundred percent (300%) reduced
by the sum of (a) one dollar ($1.00) and (b) the present value (using the rules
provided in Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), and any regulations (final, proposed or temporary) thereunder to
determine such present value) of payments by Employer pursuant to Section 4 of
the Agreement as modified hereby that were made or are to be made to Employee by
reason of such Change in Control. It is the intent of the parties that no
portion of the amounts payable to Employee as a result of this Amendment shall
constitute an "excess parachute payment" within the meaning of Section 280G of
the Code and this Amendment and the Employment Agreement shall be construed
accordingly.
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6. No Other Changes. Except as specifically amended above, the Employment
Agreement will remain in full force and effect.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
the date first written above.
Pinnacle Towers Inc.
By: /s/ XXXXXX X. DAY
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Xxxxxx X. Day
Chief Executive Officer,
Chief Financial Officer,
Vice President and Secretary
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
