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AGREEMENT AND GENERAL RELEASE
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This Agreement and General Release (the "Agreement") is entered into as of
January 31, 2003 (the "Effective Date"), by and between Pinnacle Holdings Inc.,
a Delaware corporation (the "Company"), and Xxxxxx X. Day ("Day").
1. In consideration of Day's execution and compliance with the terms and
conditions of this Agreement, including but not limited to paragraphs 5 and 10
below:
(a) the Company shall pay, or cause to be paid, an amount of $368,000
(Three Hundred Sixty-Eight Thousand Dollars), less all applicable federal, state
and local withholding taxes, to Day, payable during the 12 month period
beginning on the Effective Date and ending on the day prior to the first
anniversary of the Effective Date (the "Payment Period"), it being understood
that one half of such payments shall be made on February 15 and the remaining
one half of such payments ratably on the same day on which the Company's general
payroll is paid during the period beginning on the day which is six months after
the Effective Date;
(b) the Company shall provide Day during the 18 months following the
Effective Date with group health plan benefits which are no less favorable in
the aggregate than those for which senior executive employees of the Company are
generally eligible subject to Day paying that portion of the group health
insurance premium (including coverage for Day's eligible dependants who were
enrolled in the Company's health plan on January 30, 2003) paid by Day prior to
the Effective Date;
(c) Day shall be entitled to continued use of an automobile supplied
to Day by the Company during the 24 months beginning on the Effective Date; and
(d) the Option (as defined in the Stock Option Agreement under the
Pinnacle Holdings Inc. Employee Stock Option Plan (the "Stock Option
Agreement"), a copy of which is attached hereto as Exhibit A, shall be vested
and exercisable as to 116,736 of the $10 Shares (as defined in the Stock Option
Agreement) and as to 116,736 of the $20 Shares (as defined in the Stock Option
Agreement) and shall remain exercisable in respect of such shares by Day until
the fourth anniversary of the Effective Date, and the Option shall terminate as
to the remaining Option Shares under the Stock Option Agreement, in each case
notwithstanding anything to the contrary set forth in the Stock Option Agreement
and, except as specifically set forth in this part (d) of this paragraph 1, the
Option shall continue to be governed by and subject to the terms of the Stock
Option Agreement and the Plan (as proposed to be amended, the "Plan," a copy of
which proposed amendments are attached hereto as Exhibit B and hereby consented
to); provided, however, that for purposes of Section 5 of the Plan, Change in
Capitalization (as such term is defined in the Plan) shall mean "any increase or
decrease in the number of issued Shares (as defined in the Plan) resulting from
a stock split, reverse stock split,
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stock dividend, merger, combination or reclassification of the New Common Stock,
or any other increase or decrease in the number of issued shares of New Common
Stock effected without receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without receipt of consideration'"'.
The payments and benefits described in this paragraph 1 will be
collectively referred to herein as the "Payment".
2. Day hereby confirms that effective on the Effective Date, he no
longer holds any positions as an officer, director or employee of the Company,
or any of its respective parents, subsidiaries and affiliates at any level, and
he agrees to promptly execute such documents and take such actions as may be
necessary or requested by the Company to effectuate the foregoing.
3. Day agrees to cooperate at the request of the Company in the
handling or resolution of any matter relating to the Company, provided that such
requests shall not be unduly burdensome. By way of example only, such obligation
of cooperation may include furnishing truthful and accurate information and
assisting the Company in legal proceedings. Promptly following submission of a
written statement by Day, the Company shall reimburse Day his reasonable
out-of-pocket costs and other reasonable expenses incurred in connection with
his cooperation pursuant to this paragraph 3, including but not limited to
reasonable attorney's fees.
4. Day acknowledges that the Payment is in lieu of and in full
satisfaction of any amounts that might otherwise be payable under any contract,
agreement, plan, policy, program, practice or otherwise, past or present, of the
Company or any of its affiliates or any of its or their
predecessors-in-interest, including but not limited to, the Executive Employment
Agreement dated February 17, 1997 between Pinnacle Towers, Inc and Day, the
Executive Severance Compensation Agreement dated December 28, 2001 Pinnacle
Towers, Inc and Day, and (without regard to whether such agreement is or would
have been enforceable) the Executive Employment Agreement between Day and the
Company, dated April , 2002 (together the "Employment Agreements"); provided,
however, that the foregoing shall not operate to limit the Company's obligations
under the Indemnification Agreement dated as of March 11, 2002 between the
Company and Day (the "Indemnification Agreement"). Day acknowledges that he is
not entitled to any accrued vacation pay in addition to any such pay which he
has received as of February 15, 2003. Day represents and warrants that (i)
except as set forth in paragraph 1(d) above in respect of rights under the Stock
Option Agreement, Day has no right to, nor has any person promised to him
(conditionally or otherwise), any equity or other interest in the Company or any
of its affiliates, whether in the form of any stock, option, warrant or other
debt or equity security convertible into or exchangeable for any equity or other
interest in the Company or any of its affiliates. Without limiting the
foregoing, Day expressly agrees that following execution of this Agreement (i)
the Company shall have no further obligations to him other than (w) its
obligations to make the payments set forth in paragraphs 1(a) and 1(c) of this
Agreement, (x) to provide the benefits described in paragraph 1(b) of this
Agreement, (y) to comply with the terms of
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the Stock Option Agreement consistent with paragraph 1(d) of this Agreement and
(z) its obligations under the Indemnification Agreement dated March 11, 2002, in
each case subject to Day's compliance with his obligations hereunder and under
such Stock Option Agreement and Indemnification Agreement and (ii) he shall have
no right to any other payments or benefits from the Company, with respect to his
employment with the Company or the termination or separation thereof.
5. Day voluntarily, knowingly and willingly releases and forever
discharges the Company and all of its parents, subsidiaries and affiliates
(including, without limitation, their predecessors in interest), together with
all of their respective past and present stockholders, agents (other than,
subject to the exception set forth in this parenthetical, the Company's
(including its predecessors in interest) accountants and lawyers prior to the
date of the Company's emergence from bankruptcy on November 1, 2002, except to
the extent that such persons would be entitled to indemnification from the
Company in respect of such persons' obligations or liabilities to Day, if any),
officers, employees, directors, successors and assigns (collectively, the
"Releasees"),from and against any and all claims, charges, damages, lawsuits,
actions, causes of action and liabilities whatsoever, whether known or unknown,
absolute or contingent, accrued or unaccrued, which against them Day or his
executors, administrators, successors or assigns ever had, now have, or may
hereafter claim to have against the Releasees by reason of any matter, cause or
thing whatsoever arising on or before the date Day signs this Agreement, and
whether or not previously asserted before any state or federal court or before
any state or federal agency or governmental entity (the "Release"). This Release
includes, but is not limited to, any rights or claims relating in any way to the
Employment Agreements or to Day's employment relationship with the Company or
any of the Releasees, or the termination thereof, or arising under any statute
or regulation, including the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964, the Employee Retirement Income Security Act
of 1974, the Americans with Disabilities Act of 1990, the Equal Pay Act of 1963,
the Family and Medical Leave Act of 1993, each as amended, and any other
federal, state or local statutes, including but not limited to, the Florida
Civil Rights Act and the Florida Human Rights Act, or the common law, or under
any policy, agreement, understanding or promise, written or oral, formal or
informal, between Day and the Company or any of the Releasees. Day represents
that he has not commenced or joined in any claim, charge, action or proceeding
whatsoever against the Company or any of the other Releasees, arising out of or
relating to any of the matters set forth in this paragraph 5. Day further agrees
that he will not be entitled to any personal recovery in any action or
proceeding whatsoever against the Company or any of the Releasees for any of the
matters set forth in this paragraph, excepting those which may arise after the
Execution Date (as defined below), or with respect to the Company's obligations
under this Agreement, the Stock Option Agreement and the Indemnification
Agreement, subject to Day's compliance with the provisions of such agreements.
Day intends that each Releaseee be and is a third party beneficiary of all of
the provisions of this paragraph 5.
6. Day acknowledges that he has carefully read this Agreement and
fully understands all of its terms. Day is signing this Agreement voluntarily
and with full knowledge of its significance and acknowledges that he has not
relied upon any
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representation or statement, written or oral, not set forth in this Agreement.
Day further acknowledges that he is receiving consideration for his execution of
this Agreement in addition to anything of value to which Day already is
entitled. Day acknowledges that the Payment is expressly conditioned upon his
execution of this Agreement. Day further understands that he has twenty-one (21)
days from the original date of presentment of this Agreement (set forth below)
to consider whether or not to execute this Agreement, although he may elect to
sign it sooner.
7. Day shall have a period of seven (7) days after the day on which he
signs this Agreement (the day of such signing, the "Execution Date") to revoke
his consent thereto, which revocation must be in writing to the undersigned, and
this Agreement shall not become effective until after this time period has
passed. Day understands that if he revokes his consent within such seven (7) day
period, all of the Company's obligations to Day under this Agreement will
immediately cease, and the Company will not be required to make the Payment to
Day set forth herein. Day is advised to have this Agreement reviewed by legal
counsel of his choice.
8. The parties agree that nothing contained in this Agreement shall
constitute or be treated as an admission of liability or wrongdoing by the
Company or any of the Releasees.
9. Day agrees to keep confidential the negotiations leading to this
Agreement, as well as the terms hereof, except as may be required to obtain
legal or tax advice or to enforce any right or obligation hereunder.
10. Notwithstanding any other provision in this Agreement, Day agrees
that he remains bound, and shall continue to abide, by the non-competition,
confidentiality and proprietary information obligations set forth in paragraphs
6 through 8 of the Executive Employment Agreement dated as of February 17, 1997,
a copy of which is attached hereto as Exhibit C. Day represents that he has
returned all Confidential Information (as used in such Executive Employment
Agreement) and other Company property to the Company.
11. The provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. Moreover, if any one or more of
the provisions of this Agreement shall be held to be excessively broad as to
duration, activity or subject, such provision shall be construed by limiting and
reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
12. This Agreement may be executed in one or more counterparts, each
of which shall be deemed to be an original and all of which shall constitute one
and the same instrument.
13. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when hand delivered, 24 hours after sent by overnight
courier, or upon receipt
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of mail by first-class, registered or certified mail, return receipt requested,
postage prepaid, or transmitted by telegram or fax, addressed as follows:
If to the Company:
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Pinnacle Holdings Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xx 00000
Fax: 000-000-0000
Attn: President
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
and to:
Fortress Investment Group LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
If to Day:
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Xxxxxx X. Day
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Day and the Company acknowledge that they have read the above and
fully understand the terms, nature and effect of this Agreement, which they
voluntarily execute in good faith.
15. Governing Law. It is expressly agreed by the parties that this
Agreement, and the application or interpretation thereof (other than provisions
hereof relating to the Option which shall be governed under the law applicable
to the Stock Option Agreement), shall be governed exclusively by its terms and
by the laws of the State of Florida regardless of where Day resides at any time
hereafter. The parties acknowledge and agree that the activities of the parties
under this Agreement have a significant relationship to the state of Florida
sufficient to make Florida law the proper choice of law for this Agreement.
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16. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and supersedes, except
as otherwise indicated herein, all prior agreements, promises, covenants,
arrangements, communications, representations or warranties, whether oral or
written, between the parties hereto, including but not limited to, (i) the
Employment Agreements (except for the non-competition, confidentiality and
proprietary information obligations (and related provisions) contained in
Sections 6 through 8 of Executive Employment Agreement dated as of February 17,
1997) and (ii) the Stock Option Agreement (except as provided herein). No
provision of this Agreement may be modified or discharged unless such
modification or discharge is authorized and agreed to in writing, signed by Day
and the Company. This Agreement shall bind and inure to the benefit of and be
enforceable by the Company and its assigns; Day may not assign his rights under
this Agreement without the prior written consent of the Company.
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IN WITNESS WHEREOF, Day and the Company have hereunder caused this
Agreement to be duly executed and delivered in their names and on their behalf.
Date of original presentment: August 5, 2003
XXXXXX X. DAY PINNACLE HOLDINGS INC.
Agreed: /s/ Xxxxxx X. Day By: /s/ Xxxxxx X. Xxxxx
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Title: Chairman
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Date of signing: August 7, 2002 Date of signing: August 12, 2003
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