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Exhibit 10.22
AGREEMENT
This Agreement (hereinafter "Agreement") is entered into this 15th day of
September, 1998, by and between Xxxxxx X. Xxxx ("Long") and SpectraSite
Holdings, Inc., a Delaware corporation formerly known as Integrated Site
Development, Inc., (the "Company"), and SpectraSite Communications, Inc. a
Delaware corporation, ("SCI").
WHEREAS, Long voluntarily resigned as an employee of SCI effective as of
May 15, 1998; and
WHEREAS, the Company now desires to purchase from Long all of his capital
stock in the Company.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the payment of the monies hereinafter recited, the receipt and adequacy of
which are hereby acknowledged, it is agreed among the parties that:
1. The Company hereby agrees to buy, and Long hereby agrees to sell,
125,000 shares of Common Stock, $0.001 par value per share, of the Company owned
by Long at a purchase price of $4.00 per share for a total aggregate purchase
price of $500,000.00. Long hereby grants to the shareholders of the Company the
option (the "Option") to purchase up to 37,605 of such shares of Common Stock
from Long at a purchase price of $4.00 per share. Such Option shall be exercised
by the Company's giving written notice to Long of the exercise of all or part of
such Option by its shareholders on or before November 15, 1998. Upon the
execution of this Agreement, Long shall deliver to the Company stock certificate
number 2 for the 162,605 shares of Common Stock endorsed in blank, and the
Company shall deliver to Long a check or checks totaling $500,000 (or shall wire
such funds to Long in immediately available funds) and a stock certificate for
37,605 shares of Common Stock of the Company. Upon the exercise of the Option,
Long shall deliver to the Company his stock certificate for 37,605 shares of
Common Stock endorsed in blank, and the Company shall deliver to Long, on behalf
of its shareholders exercising the Option, check or checks equal to the purchase
price for the number of shares for which the Option is exercised and a stock
certificate for any shares for which the Option is not exercised.
2. Long hereby fully releases, and forever irrevocably discharges the
Company, SCI and their subsidiaries, their past, present and future officers,
directors, agents, shareholders, employees, and representatives, jointly and
individually, from any and all claims, demands, charges, lawsuits, debts,
defenses, actions or causes of action, obligations, damages, sums of money, loss
of services, compensation, pain and suffering, attorneys' fees, cost and
expenses of suit, and liabilities whatsoever, which Long had, now has or may
have, whether known or unknown, whether the same be at law, in equity, or mixed,
upon or by reason of any matter or cause whatsoever, as of the date of execution
of this Agreement including, but not limited to, any claim arising under the Age
Discrimination in Employment Act, the Civil Rights Act of 1964 (Title VII) and
1991, the Employee Retirement Income Security Act, the Americans with
Disabilities Act, all federal, state and local civil rights statutes, and any
other statutory, equitable, or common law claims, including but not limited to
impairment of economic opportunity, wrongful discharge, or intentional or
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negligent infliction of emotional distress, but such release shall not apply to
the Company's and SCI's obligations under this Agreement.
3. (a) The Company and SCI hereby fully release, and forever
irrevocably discharge Long and his heirs, personal representatives, successors
and assigns, jointly and individually, from any and all claims, demands,
charges, lawsuits, debts, defenses, actions or causes of action, obligations,
damages, sums of money, loss of services, compensation, pain and suffering,
attorneys' fees, cost and expenses of suit, and liabilities whatsoever, which
the Company or SCI had, now has or may have, whether known or unknown, whether
the same be at law, in equity, or mixed, upon or by reason of any matter or
cause whatsoever, as of the date of execution of this Agreement, but such
release shall not apply to Long's obligations under this Agreement.
(b) SCI agrees to indemnify Long to the fullest extent permitted by law
for action taken by Long while serving as an officer, director or employee of
SCI.
4. Long acknowledges that, except as provided in Section 1 hereof, he
is not entitled to any compensation, monies, benefits, equity or options from
the Company, SCI or any of their subsidiaries, including but not limited to
compensation for accrued vacation, bonuses, commissions, expenses, or other
forms of compensation (whether cash or equity), and Long hereby waives all
rights to said payments.
5. Long will keep the terms of this Agreement strictly confidential and
shall not disclose any information concerning the terms of this Agreement or
provide a copy of the same to anyone, except Long's legal counsel or financial
consultants, who will be bound to maintain the confidence of the terms of this
Agreement, unless otherwise required by a court of competent jurisdiction. If
required by law to produce a copy or to make such disclosure, Long will give the
Company notice prior to such production or disclosure.
6. THE COMPANY AND SCI HEREBY ADVISE LONG TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTING THIS AGREEMENT.
7. Long acknowledges that he has read this Agreement, fully and
completely understands the terms and conditions of this Agreement and has
voluntarily and knowingly agreed to said terms and conditions without any
reservation whatsoever, including all releases of claims Long may have against
the Company, SCI or any of their subsidiaries.
8. Long hereby represents and warrants that:
(a) He has had an opportunity to review and have his questions answered
by the appropriate officers of the Company with respect to the Company and its
future plans, desires no further or additional information concerning the
Company or its operations and deems such information received and reviewed
adequate to evaluate the merits of selling his shares of Common Stock of the
Company.
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(b) He has sufficient experience in business, financial, and investment
matters to be able to evaluate the merits involved in the sale of the Common
Stock and to make an informed decision with respect to such sale.
(c) He has not and will not rely upon the Company for advice with
respect to any tax consequences related to the disposition of the Common Stock
and he assumes full responsibility for all such consequences as to the
preparation and filing of all tax returns and elections which may and must be
filed in connection with the sale of such Common Stock.
(d) Long hereby represents that the 162,605 shares of Common Stock that
he is selling pursuant hereto constitute all of the shares of capital stock and
options to acquire shares of capital stock of the Company owned by him.
(e) Long hereby acknowledges that he is aware that the Company is
discussing and is in negotiations with respect to acquisitions of towers and
tower sites and bids to construct towers for telecommunications companies and is
involved in seeking additional equity and debt financing, both private and
public (including discussions with potential underwriters for an initial public
offering of stock).
9. This Agreement will not be used or construed by any person or entity
as an admission of liability by either party and this Agreement may not be
offered or received in evidence in any action or proceeding as an admission or
concession of liability or wrongdoing on the part of either party.
10. Long covenants and agrees that, after the date of this Agreement, he
shall not, and will take reasonable steps to cause each of his affiliates not
to, take any action or make any statement, whether or not in writing, that
disparages or denigrates the Company, SCI or their subsidiaries, affiliates,
agents, employees, officers, directors or shareholders (including, without
limitation, by way of news interview or expression of personal views, opinions
or judgments to the news media).
11. This Agreement shall be binding upon and inure to the benefit of
Long, Long's assigns, heirs, executors, representatives and administrators, as
well as the predecessors, successors, purchasers and assigns of the Company and
SCI.
12. The Company, SCI and Long acknowledge that this Agreement contains
and comprises the entire agreement and understanding of the parties with respect
to the subject matter hereof, and that there are no agreements or understanding
with respect to the subject matter hereof other than those contained herein.
This Agreement is intended to be a binding contract between the parties hereto
and shall not be modified, except by writing signed by the Company, SCI and
Long.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of North Carolina.
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14. Notice to Long of the exercise of the Option pursuant to Section 1
hereof shall be deemed duly given one business day after sent by overnight
courier, charges prepaid, at 000 Xxxxxxxx Xxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
15. The shareholders of the Company shall be third party beneficiaries
of this Agreement with respect to the Option.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have executed this Agreement this the 15th day of September, 1998.
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
SPECTRASITE HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President
SPECTRASITE COMMUNICATIONS, INC.
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
President
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