EXHIBIT 10.2
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STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), is made effective as of November 1,
2004 (the "Grant Date"), between SpectraSite, Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxx (the "Optionee"):
W I T N E S S E T H:
WHEREAS, the Company has adopted the SpectraSite, Inc. 2003 Equity
Incentive Plan (the "Plan"), which is incorporated herein by reference and made
a part of this Agreement. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Plan; and
WHEREAS, the Committee has determined that it would be in the best
interests of the Company and its stockholders to grant the option provided for
herein to the Optionee pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the Company and the Optionee agree as follows:
1. GRANT OF THE OPTION. The Company hereby grants to the Optionee
the right and option (the "Option") to purchase, on the terms and conditions set
forth herein, all or any part of an aggregate of 50,000 Shares (the "Option
Shares"), subject to adjustment as set forth in the Plan. The purchase price of
the Option Shares shall be $51.80 per Share (the "Exercise Price"). The Option
is intended to be treated as a Non-Qualified Option. Subject to the
restrictions, and under the circumstances described in the Plan, the Company
shall adjust the number and kind of Option Shares and the Exercise Price in
accordance with the provisions of the Plan.
2. VESTING.
(a) GENERALLY. Subject to the Optionee's continued
employment with the Company or a subsidiary thereof, the Option shall vest and
become exercisable with respect to all of the Option Shares on the earlier of
November 1, 2005, and (ii) the day immediately prior to the effective date of
any new accounting rule or policy that would require an accounting charge by the
Company in respect of the Option if the Option were not vested prior to such
effective date.
(b) Notwithstanding Section 2(a) above, in the event that:
(i) the Optionee's employment is terminated by the
Company without Cause, or on account of Disability, or by the Optionee for
Good Reason, or in the event of the Optionee's death, any unvested portion
of the Option shall become fully vested and exercisable as of the date of
such termination; or
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(ii) a Change of Control occurs, any unvested portion
of the Option shall become fully vested and exercisable as of immediately
prior to such Change of Control.
3. EXERCISE OF OPTION.
(a) PERIOD OF EXERCISE. The unvested portion of the Option
(after giving effect to Section 2(b)(i) hereof, if applicable) shall immediately
terminate upon the termination of the Optionee's employment for any reason.
Subject to the provisions of the Plan and this Agreement, the Optionee may
exercise the vested portion of the Option at any time prior to the earliest to
occur of:
(i) the tenth anniversary of the Date of Grant;
(ii) the date of the termination of the Optionee's
employment by the Company for Cause;
(iii) the date ninety (90) days following the
Optionee's resignation without Good Reason;
(iv) the second anniversary of the termination of the
Optionee's employment (A) by reason of the Optionee's death, (B) by the
Company on account of Disability, or (C) if other than during the two-year
period following a Change of Control, by the Company without Cause or by the
Optionee's resignation for Good Reason; or
(v) the third anniversary of the date of the
termination of the Optionee's employment during the two-year period
following a Change of Control (A) by the Company without Cause or (B) upon
the Optionee's resignation for Good Reason.
(b) METHOD OF EXERCISE.
(i) Subject to Section 3(a), the Option may be
exercised by delivering to the Company at its principal office written
notice of intent to so exercise in a form provided by the Company; provided,
that the Option may be exercised with respect to whole Shares only. Such
notice shall specify the number of Option Shares for which the Option is
being exercised and shall be accompanied by payment in full of the Exercise
Price. Payment of the Exercise Price for the number of Shares being
purchased pursuant to any Option shall be made by: (i) cash, (ii) check or
cash equivalent, (iii) with the consent of the Committee, delivery or
attestation of ownership of a number of Shares which have been owned by the
Optionee for at least six months (or such other period as necessary to
prevent an accounting charge) (or purchased on the open market) with a Fair
Market Value equal to the Exercise Price, (iv) with the consent of the
Committee, delivery of a stock power and instructions to a broker to sell a
sufficient number of Shares subject to the Option to pay the Exercise Price
(to the extent the Committee determines it would not result in a violation
of the
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Xxxxxxxx-Xxxxx Act of 2002), or (v) with the consent of the Committee,
promissory note (to the extent the Committee determines it would not result
in a violation of the Xxxxxxxx-Xxxxx Act of 2002).
(ii) Upon the Company's determination that the Option
has been validly exercised as to any of the Option Shares and that the
Optionee has satisfied the withholding requirements described in Section 6
hereof, the Company shall issue certificates in the Optionee's name for such
Option Shares.
(iii) In the event of the Optionee's death, the Option
shall remain exercisable by the Optionee's executor or administrator, or the
person or persons to whom the Optionee's rights under this Agreement shall
pass by will or by the laws of descent and distribution as the case may be,
to the extent set forth in Section 3(a). Any heir or legatee of the Optionee
shall take rights herein granted subject to the terms and conditions hereof.
4. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor this
Agreement shall be construed as giving the Optionee the right to be retained in
the employ of, or in any consulting relationship to, the Company or any of its
subsidiaries. Further, the Company or its subsidiaries, as applicable, may at
any time dismiss the Optionee or discontinue any consulting relationship, free
from any liability or any claim under the Plan or this Agreement, except as
otherwise expressly provided herein.
5. TRANSFERABILITY. During the lifetime of the Optionee, the
Option shall be exercisable only by the Optionee and the Option shall not be
assignable or transferable by the Optionee, except by will or by the laws of
descent and distribution, provided, that the Option or any portion thereof shall
be transferable without consideration to members of the Optionee's Immediate
Family or to a trust, partnership or other entity for the benefit of the
Optionee and/or member of the Optionee's Immediate Family in accordance with
Section 9.6 of the Plan.
6. WITHHOLDING.
(a) The Optionee may be required to pay to the Company or
any of its subsidiaries and the Company or any of its subsidiaries shall have
the right and is hereby authorized to withhold from any Shares or other property
deliverable under the Option or from any compensation or other amounts owing to
an Optionee the amount (in cash, Shares, or other property) of any required tax
withholding and payroll taxes in respect of the Option, its exercise, or any
payment or transfer under the Option or under the Plan and to take such other
action as may be necessary in the opinion of the Company to satisfy all
obligations for the payment of such taxes.
(b) Without limiting the generality of Section 6(a) above,
the Optionee may satisfy, in whole or in part, the foregoing withholding
liability (but no more than the minimum required withholding liability) by
delivery of Shares owned by the Optionee with a Fair Market Value equal to such
withholding liability or by having the Company withhold from the number of
Shares otherwise issuable pursuant to the
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exercise of the Option a number of Option Shares with a Fair Market Value equal
to such withholding liability.
7. NOTICES. Any notice necessary under this Agreement shall be
addressed to the Company in care of its Secretary at the principal executive
office of the Company and to the Optionee at the address appearing in the
personnel records of the Company for the Optionee or to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Any such notice shall be deemed effective upon receipt thereof by the
addressee.
8. CHOICE OF LAW. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE,
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR
PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF DELAWARE.
9. OPTION SUBJECT TO PLAN. By entering into this Agreement the
Optionee agrees and acknowledges that the Optionee has received and read a copy
of the Plan. The Option is subject to the Plan. The terms and provisions of the
Plan as it may be amended from time to time are hereby incorporated herein by
reference. In the event of a conflict between any term or provision contained
herein and a term or provision of the Plan, the applicable terms and provisions
of the Plan will govern and prevail.
10. SIGNATURE IN COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
SPECTRASITE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and Chief
Executive Officer
OPTIONEE
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
