EXHIBIT 10.3
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AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT (the "AMENDMENT") dated June 20, 2005 amends the
Employment Agreement between SpectraSite, Inc. and Xxxx X. Xxxxxx (the
"EXECUTIVE") effective as of November 1, 2004 (the "EMPLOYMENT AGREEMENT").
Capitalized terms used herein that are not otherwise defined have the same
meanings as those terms are given in the Employment Agreement.
WHEREAS, the Company and the Executive wish to amend the Employment
Agreement, among other things, so as to avoid adverse tax consequences to the
Executive under Section 409A of the Internal Revenue Code of 1986, as amended.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 5(a)(vi) is amended by adding the following sentence
to the end thereof:
In addition, the Executive shall be entitled to reimbursement of no
more than $17,500 for a down payment on real estate lost as a result of the
termination of the Executive's employment in connection with the transactions
contemplated by that Agreement and Plan of Merger by and among American Tower
Corporation, Asteroid Merger Sub, LLC and SpectraSite, Inc. dated as of May 3,
2005, plus an additional amount such that after the payment of all income and
employment taxes, the Executive retains $17,500.
2. Section 7(d) is amended by adding thereto a new subsection
(iii) to read as follows:
(iii) Notwithstanding anything in Section 7(d)(i) or Section 7(d)(ii)
to the contrary, any payments that would otherwise be made to the Executive
within the first six months following his termination of employment pursuant to
those Sections shall not be made during such six month period and shall instead
be delayed and paid to the Executive in a lump sum plus interest thereon
(calculated in accordance with the next sentence) on the sixth month anniversary
of his termination of employment; thereafter, payments pursuant to Sections
7(d)(i) and 7(d)(ii) shall continue as scheduled in accordance with those
Sections. Payments that are delayed in accordance with the foregoing sentence
will earn interest between the date on which such payments would have otherwise
been made under Section 7(d)(i) or 7(d)(ii) without regard to this Section
7(d)(iii) (each, an "ORIGINAL PAYMENT DATE") and the date on which such payments
are actually made (after application of this Section 7(d)(iii)) at the rate of
2% plus the rate published on the applicable Original Payment Date (or the
preceding business day, if such day is not a business day) in the WALL STREET
JOURNAL for notes maturing three (3) months after issuance under the caption
"Money Rates, London Interbank Offered Rates (LIBOR)." Interest shall be
calculated based on a 360 day year and charged for the actual number of days
elapsed. The six month payment delay provided for by this Section 7(d)(iii)
shall apply only to the monthly payments provided for in clause (i) of each of
Sections 7(d)(i) and 7(d)(ii) and shall not apply to the benefits to be provided
to the Executive in clause (ii) of each of such Sections.
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3. Section 7(f) is amended to read in its entirety as follows:
(f) Other than as specifically provided for in Section 7(d)
(iii), no interest shall accrue on or be paid with respect to any portion of any
payments hereunder.
4. Section 8 is amended to read in its entirety as follows:
8. LIMITED GROSS UP. In the event that it shall be
determined that any payment, distribution or other benefit provided by the
Company to or for the benefit of Executive (whether paid or payable, distributed
or distributable or provided pursuant to the terms of this Agreement or
otherwise, but determined without regard to any additional payments required
under this Section 8, such payments, distributions and benefits being referred
to herein as "PAYMENTS") would give rise to liability of Executive for the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "CODE"), or that any interest or penalties are incurred by
Executive with respect to such excise tax (such excise tax, together with any
such interest and penalties, are hereinafter collectively referred to as the
"EXCISE TAX"), then Executive shall be entitled to receive an additional payment
(the "GROSS-UP PAYMENT") in an amount such that after payment by Executive of
all Federal, state and local taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any income and
employment taxes (and any interest and penalties imposed with respect to such
taxes) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. For this purpose, Executive shall be deemed to be in the highest
marginal rate of Federal, state and local taxes. This payment shall be
determined by a nationally recognized accounting firm selected by Executive and
made as soon as practicable following the date of such determination, but in no
event later than thirty (30) calendar days following the date of such
determination. The Gross-Up Payment shall be paid out of the general assets of
the Company. In the event the Internal Revenue Service subsequently increases
the amount of the Excise Tax computation, the Company shall reimburse Executive
for the full amount necessary to make Executive whole on an after-tax basis
(less any amounts received by Executive that Executive would not have received
had the Excise Tax initially been computed as subsequently adjusted), including
the value of any underpaid Excise Tax, and any related interest and/or penalties
due to the Internal Revenue Service. Executive shall confer and cooperate with
the Company in any dispute with the Internal Revenue Service regarding the
amount of the Excise Tax. Notwithstanding the foregoing, in no event shall the
payments made to the Executive pursuant to this Section 8 exceed $2,056,000.
5. Except as specifically provided herein, all terms and conditions
of the Employment Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the date first set forth above.
SPECTRASITE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chief Executive
Officer
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
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