EXHIBIT 10.67
EXECUTIVE SEVERANCE COMPENSATION AGREEMENT
THIS EXECUTIVE SEVERANCE COMPENSATION AGREEMENT ("Agreement") is made
as of December 28, 2001, between Pinnacle Towers Inc. (the "Company") and Xxxxxx
X. Day ("Executive").
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. INTRODUCTION. The Agreement is designed to provide severance pay and
benefits to the Executive if the Executive's employment with the Company or an
Affiliate is terminated under the conditions specified herein. The Agreement
supersedes any provision that relates to the payment of severance pay and
benefits contained in any existing agreement between the Company or an Affiliate
and the Executive or in any offer of employment letter from the Company or an
Affiliate to the Executive. The Agreement was initially approved by the Board of
Directors of the Company on December 28, 2001.
2. DEFINITIONS.
(a) "Affiliates" means such of the affiliates of the Company as
the Plan Administrator, in its sole and absolute discretion, may determine.
(b) "Base Salary" means the Executive's annual base salary in
effect at the time of the termination of the Executive's employment, including
all amounts elected to be deferred that would otherwise have been paid, under
any cash or deferred arrangement established by the Company or an Affiliate, but
excluding bonuses, commissions, the cost of employee benefits paid for by the
Company or an Affiliate, education or tuition reimbursements, imputed income
arising under any Company or Affiliate group insurance or benefit program,
traveling expenses, business and moving expense reimbursements, income received
in connection with stock options, contributions made by the Company or an
Affiliate under any employee benefit plan, and similar items of compensation.
(c) "Cause" means (i) any intentional misapplication by the
Executive of the Company's or an Affiliate's funds, intended to result directly
or indirectly in significant gain or personal enrichment at the expense of the
Company or an Affiliate, or any other act of dishonesty committed by the
Executive in connection with the Company's or an Affiliate's business; (ii) the
Executive's conviction of a crime involving moral turpitude; (iii) the
Executive's non-performance or non-observance in any material respect of any
requirement with respect to the Executive's employment; or (iv) any other action
by the Executive involving willful and deliberate malfeasance or negligence in
the performance of the Executive's duties.
(d) "Committee" means the Compensation Committee of the Board of
Directors of the Company.
(e) "Disability" means "disability" as defined in the Company's or
an Affiliate's long term disability plan or policy.
(f) "Effective Date" means January 7, 2002.
(g) "Expiration Date" means the date that is 24 months following
the Restructuring Completion Date
(h) "Involuntary Termination Without Cause" means the termination
of the Executive's employment by the Company or an Affiliate (or, if applicable,
by any successor entity) for any reason or no reason other than for Cause. The
termination of the Executive's employment will not be deemed to be an
"Involuntary Termination Without Cause" if such termination occurs as a result
of the Executive's death or Disability.
(i) "Restructuring Completion Date" means the earliest to occur
of: (i) the date on which the restructuring of the Company's indebtedness is
completed, as determined by the Committee in its sole and absolute discretion;
(ii) the date on which a successful recapitalization of the Company is
completed, as determined by the Committee in its sole and absolute discretion;
(iii) the date on which the first distribution is made pursuant to a bankruptcy
court-approved plan of reorganization of the Company or its parent company; or
(iv) the date on which the Company pays to Gordian Group, L.P., or another
provider of financial advisory services, a transaction fee based upon the
consummation of a restructuring of the Company's indebtedness or a material
portion of the Company's obligations, raising new or replacement capital for the
Company, an investment in the Company or any merger, consolidation,
reorganization, recapitalization, joint venture or other business combination or
sale of substantially all or a material portion of the assets or outstanding
securities of the company, or the acquisition of substantially all or a material
portion of the assets or outstanding securities of another entity, in one or a
series of transactions.
(j) "Voluntary Termination For Good Reason" means the Executive's
voluntary termination of the Executive's employment with the Company or an
Affiliate after any of the following are undertaken by the Company or an
Affiliate without the Executive's prior written consent: (i) a reduction in the
Executive's Base Salary; (ii) the assignment to the Executive of any duties or
responsibilities that result in a material diminution or adverse change of the
Executive's position, responsibilities, authority or circumstances of
employment; or (iii) a removal of the Executive's title or officer status.
3. SEVERANCE BENEFITS. In the event of the Executive's Involuntary
Termination Without Cause or Voluntary Termination For Good Reason following the
Effective Date and prior to the Expiration Date, the Executive shall be entitled
to the following benefits:
(a) CASH PAYMENTS. The Executive shall be entitled to receive cash
payments equal in the aggregate to 200 percent of the Executive's Base Salary
(the "Cash Benefit"). The Cash Benefit shall be paid to the Covered Employee in
four equal installments. The first Cash Benefit installment payment shall be
paid on or as soon as administratively practicable following the date
the Executive's employment terminates, and the remaining three Cash Benefit
installment payments shall be paid on the dates that are six months, one year
and 18 months following the date the Executive's employment terminates. If,
prior to the payment of all Cash Benefit installment payments, the Executive
obtains other employment with a salary equal to or greater than the Executive's
Base Salary, the Executive shall not be entitled to receive the remaining Cash
Benefit installment payments. If, prior to the payment of all Cash Benefit
installment payments, the Executive obtains other employment with a salary that
is less than the Executive's Base Salary but not less than 75 percent of the
Executive's Base Salary, each remaining Cash Benefit installment payment shall
be reduced by the same ratio that the Executive's salary with respect to such
other employment bears to the Executive's Base Salary. The Executive shall
provide written notice to the Company of other employment that the Executive
obtains prior to the payment of all Cash Benefit installment payments and the
salary for such other employment. The Executive shall provide such written
notice within five days after obtaining such other employment.
(b) CONTINUATION OF HEALTH BENEFITS. Provided that the Executive
elects continued coverage under federal COBRA law as applicable, the Company
shall pay, on the Executive's behalf, the portion of group health insurance
premiums, including coverage for the Executive's eligible dependents, that the
Company or an Affiliate paid prior to the Executive's termination of employment;
provided, however, that the Company will pay such premiums for the Executive's
eligible dependents only for coverage for which those dependents were enrolled
immediately prior to the Executive's termination of employment. The Executive
will continue to be required to pay that portion of the group health insurance
premium, including coverage for the Executive's eligible dependents, that the
Executive was required to pay as an active employee immediately prior to the
Executive's termination of employment. The number of months of such premium
payments shall equal 18 months, but in no event shall such premium payments be
made following the effective date of the Executive's eligibility for coverage by
a health plan of a subsequent employer.
(c) AUTOMOBILE. The Executive shall be entitled to continued use
of an automobile supplied by the Company during the 24-month period beginning on
the date the Executive's employment terminates.
4. GENERAL PROVISIONS.
(a) Payments under the Agreement shall be paid by the Company from
the general assets of the Company.
(b) Payments under the Agreement are subject to federal, state and
local income tax withholding and all other applicable federal, state and local
taxes. The Company shall withhold, or cause to be withheld, from any payments
made hereunder all applicable federal, state and local withholding taxes and may
require the Executive to file any certificate or other form in connection
therewith.
(c) Nothing contained herein shall give the Executive the right to
be retained in the employment of the Company or an Affiliate or any successor,
or affect the Company's or an Affiliate's right to dismiss the Executive at
will.
(d) The Agreement is not a term or condition of the Executive's
employment and the Executive shall not have any legal right to payments
hereunder except to the extent all conditions relating to the receipt of such
payments have been satisfied in accordance with the terms of the Agreement.
(e) The Executive may not assign, transfer or in any other way
alienate any benefit to which the Executive may become entitled under the
Agreement, nor shall any such benefit be subject to garnishment, attachment,
execution or levy of any kind.
(f) Subject to the express provisions of the Agreement, the
Committee is authorized, in its sole and absolute discretion, to interpret the
Agreement (including any vague or ambiguous provisions) and to make all other
determinations deemed necessary or advisable for the administration of the
Agreement. All determinations and interpretations of the Committee shall be
final, binding and conclusive as to all persons.
(g) Neither the Committee nor any employee, officer or director of
the Company shall be personally liable by reason of any action taken with
respect to the Agreement for any mistake of judgment made in good faith, and the
Company shall indemnify and hold harmless each employee, officer or director of
the Company, including the Committee, to whom any duty or power relating to the
administration or interpretation of the Agreement may be allocated or delegated,
against any reasonable cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the Board
of Directors of the Company) arising out of any act or omission to act in
connection with the Agreement unless arising out of such person's own fraud,
bad faith or gross negligence.
5. APPLICABLE LAW. The Agreement and all action taken under it shall be
governed as to validity, construction, interpretation and administration by the
laws of the State of Florida.
IN WITNESS WHEREOF, this Agreement has been executed by the Company and
the Executive as of the date and year first written above.
PINNACLE TOWERS INC.
By:
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Title:
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"COMPANY"
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Xxxxxx X. Day
"EXECUTIVE"
