Execution Copy.
EXECUTIVE EMPLOYMENT AGREEMENT
------------------------------
This Executive Employment Agreement (this "Agreement") is made as of
January 31, 2003 (the "Effective Date"), between Pinnacle Holdings Inc., a
Delaware corporation (the "Company") and ▇▇▇▇▇ ▇. Grain ("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. Employment. The Company shall employ Executive, and Executive agrees
to be employed by the Company, upon the terms and conditions set forth in this
Agreement, for the period beginning on the Effective Date and ending on the
third anniversary of the Effective Date (the "Employment Period"); provided,
however, that commencing on the third anniversary of the Effective Date and on
each subsequent anniversary of the Effective Date (each such anniversary, a
"Renewal Date"), the Employment Period shall automatically be extended for one
additional year unless, not later than ninety (90) days prior to such Renewal
Date, the Company or Executive shall have given written notice not to extend the
Employment Period; provided, further, however, that the Employment Period shall
be subject to earlier termination as provided in paragraph 4 hereof. For the
sake of clarity, the delivery by the Company pursuant to this paragraph 1 of a
notice not to extend the Employment Period is not a termination by the Company
of the Employment Period.
2. Title and Duties. During the Employment Period, Executive shall
serve as the President of the Company as well as President of each U.S.
subsidiary of the Company which is actively engaged in the conduct of a business
(an "Active Subsidiary"). Executive shall report to the Board of Directors of
the Company (the "Board"). During the Employment Period, Executive shall render
such managerial, analytical, administrative, marketing and other executive
services to the Company and its subsidiaries as are from time to time necessary
in connection with the management and affairs of the Company and its
subsidiaries, as such may be determined from time to time by the Board, which
shall include acquiring, owning, constructing, licensing, managing-for-hire,
leasing, operating and divesting tower or other communication sites and related
properties, and financing activities relating to the foregoing (together with
all reasonably related activities, the "Business"). Without limiting the
foregoing, Executive shall be the Chief Operating Officer of the Company and
shall have the duties and exercise the powers of the President, as described in
the Company's Bylaws as in effect as of the Effective Date. Furthermore,
notwithstanding anything in the Company's Bylaws to the contrary, during the
Employment Period, Executive, and not the Company's Chief Executive Officer,
shall have the authority to cause the employment or appointment of such
employees and agents of the Company (and of each Active Subsidiary) as the
proper conduct of operations may require (other than such officers of the
Company as, pursuant to the Company's Bylaws as in effect on the Effective Date,
are to be appointed by the Board) and to fix their compensation and terms of
employment, except that any portion of such compensation that includes stock
option or other equity or equity-based element
1
Execution Copy.
shall be subject to the approval of the Company's Board of Directors, to remove
or suspend any such employee or agent who shall have been employed or appointed
under his authority or under the authority of an officer subordinate to
Executive, and to suspend for cause, pending final action by the Board, any
officer subordinate to Executive. Executive shall devote his best efforts and
his full business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the conduct of the
Business and the affairs of the Company and its subsidiaries. Executive shall
perform his duties and responsibilities to the best of his abilities in a
diligent, trustworthy, business like and efficient manner. Notwithstanding the
foregoing, nothing herein shall prohibit Executive from (i) engaging in personal
Investment activities for himself and his family that do not give rise to any
conflict of interests with the Company or its affiliates, (ii) subject to prior
approval of the ▇▇▇▇▇, accepting directorships unrelated to the Company that do
not give rise to any conflict of interests with the Company or its affiliates
and (iii) engaging in charitable and civic activities, so long as such outside
interests do not interfere with the performance of his duties hereunder.
3. Compensation.
(a) Base Salary. During the Employment Period, Executive shall be
paid as base compensation for services (as in effect from time to time, the
"Base Salary") the amount described in this paragraph 3(a). The Base Salary
initially shall be $200,000 per annum but in no event shall the Base Salary be
reduced without Executive's approval. In subsequent years, the Base Salary will
be subject to annual review and adjustment from time to time by the Board. The
Base Salary shall be payable in regular installments in accordance with the
Company's general payroll practices. In addition, during the Employment Period,
Executive shall be entitled to participate in all of the employee benefit
programs for which senior executive employees of the Company arc generally
eligible.
(b) Reimbursement of Expenses. The Company shall reimburse Executive
for all reasonable expenses which are incurred by him in the course of
performing his duties under this Agreement and which are consistent with the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's requirements
with respect to reporting and documentation of such expenses.
(c) Bonuses. During the Employment Period, Executive shall be
eligible for bonus opportunities as are described in this paragraph 3(c). With
respect to the first fiscal year of the Company ending during the Employment
Period (i.e., the fiscal year ending December 31, 2003), Executive shall be
entitled to a bonus in an amount equal to $225,000 (the "Initial Bonus") subject
to the penultimate sentence of this paragraph 3(c). With respect to fiscal years
ending during the Employment Period after the first such fiscal year, Executive
shall be eligible to receive bonuses in an amount, if any, determined by the
Board, in its sole discretion (for each such fiscal year, a "Subsequent Bonus"
and together with the Initial Bonus, a "Bonus"). Bonus payments shall be made to
the Executive within a reasonable time after the end of the fiscal year, but in
no event later than two and one-half months following the last day of the fiscal
2
Execution Copy.
year for which such Bonus was granted. Notwithstanding anything to the contrary
contained herein, neither the Initial Bonus nor any Subsequent Bonus in respect
of any fiscal year of the Company will be paid to Executive unless he is
employed by the Company on the last day of the fiscal year for which the Bonus
is awarded. All amounts required or permitted to be withheld by law, including,
without limitation, applicable withholding taxes shall be deducted from any
Bonus payments made to Executive.
(d) Stock Options. Pursuant to the Pinnacle Holdings Inc. Employee
Stock Option Plan (as amended from time to time, the "Option Plan"), as soon as
practicable after the signing of this Agreement, the Company shall grant to
Executive pursuant to one or ▇▇▇▇ option agreements (the "Option Agreements") an
option (the "Group A, Option") to purchase 205,000 shares of the Company's
common stock, par value $.0l per share (the "Common Stock") and a second option
(the "Group B Option") to purchase an additional 205,000 shares of Common Stock
(collectively, the Group A Option and the Group B Option being referred to as
the "Options"). The exercise price per share of Common Stock for the Group A
Option and the Group B Option shall be $10 and $20, respectively. The Options
shall, to the extent possible, be designated in the applicable option agreement
as an "incentive stock option" within the meaning of section 422 of the internal
Revenue Code of 1986, as amended. Each Option shall each vest as follows: (i)
30% of the shares subject to such Option shall vest on December 31, 2003, (ii)
30% of the shares subject to such Option shall vest on December 31, 2003 and
(iii) 40% of the shares subject to such Option shall vest on December 31, 2005;
provided, however, that such Options shall vest immediately (to the extent not
previously exercisable) upon the termination of the Employment Period (1) by the
Company for any reason other than for Cause (as defined in paragraph 4 below),
unless such termination is due to the Executive's death or Disability (as
defined in paragraph 4(b) below), or (2) by the Executive for Good Reason (as
defined in paragraph 4 below). Each Option shall have a term of ten (10) years
and shall be exercisable in accordance with the terms of the Option Agreement(s)
and the Option Plan; provided, however, that the exercise period shall expire in
the case of a termination pursuant to paragraph 4(c) below (termination by the
Company without cause) or a termination pursuant to paragraph 4(e) below
(termination by the Executive with Good Reason), at 5:00 p.m. (B.S.T.) on the
third anniversary of the date of the Executive's termination of employment (it
being understood that the death of Executive during such post-termination period
shall not further extend the expiration date of the Options); provided, further,
however, that in the case of a termination of employment following the
expiration of this Agreement (as a result of the Company's election not to
extend the Employment Period hereunder) under circumstances which, had this
Agreement not expired and had the Employment Period been extended, would have
constituted a termination pursuant to paragraph 4(c) or 4(e) hereof, the
exercise period shall expire at 5:00 p.m. (E.S.T.) on the third anniversary of
the date of such termination of employment (it being understood that the death
of Executive during such post-termination period shall not further extend the
expiration date of the Options).
(e) Fringe Benefits. During the Employment Period, Executive shall
be entitled to receive the following benefits, subject to the Company's policies
and the terms of such plans, which may, in the case of clauses (i) and (ii), be
modified (including,
3
Execution Copy.
without limitation, by elimination thereof)) from time to time (by action of the
Board, by law or otherwise) (provided, however, in the case of the elimination
of any significant benefit described in clauses (i) or (ii) that is in place on
the date hereof, in the event that following elimination of such benefit
Executive's aggregate benefit package is not in the aggregate comparable to the
package in piano at any time prior to such elimination, the Company shall
provide Executive with a supplemental periodic payment equal to the Company's
cost for such eliminated benefit):
(i) medical, dental, vision, life and disability insurance of
such coverage as is determined by the Board;
(ii) any pension and/or 401K plan which the Company may make
available to any senior executive during the Executive's employment
hereunder;
(iii) the use of an automobile from the Company's fleet of
automobiles if Company policy is to provide cars to its senior
executives; and
(iv) an annual vacation of four weeks each year in accordance
with the Company's policy applicable to senior executive employees.
Vacations are to be taken at such time or times as shall be mutually
agreed upon between the Company and Executive.
(f) Relocation Benefits. Executive shall permanently relocate his
residence to within a reasonable commuting distance of the Company's principal
office. To the extent not covered by existing Company policies and as a
supplement to such existing policies, the Company shall provide the following to
the Executive, at the Company's expense, until the occurrence of such
relocation, or September 1, 2003, whichever occurs first;
(i) a temporary residence, in size and cost reasonable in
Executive's good faith judgment under the circumstances, located within
a reasonable commuting distance of the Company's headquarters;
(ii) the use of an automobile from the Company's existing
fleet of automobiles;
(iii) reimbursement for the reasonable cost of a number
(reasonable in Executive's good faith judgment under the circumstances)
of round-trip air fares between Boston and Tampa or Sarasota for the
Executive and the members of his immediate family.
In connection with the relocation of the Executive's residence, to the
extent not covered by existing Company policies and as a supplement to
such existing policies, the Company shall also provide reimbursement
for (x) the reasonable costs associated with moving the personal
property of Executive and his family from West ▇▇▇▇▇▇ to the location
of his residence within a reasonable commuting
4
Execution Copy.
distance of the Company's headquarters, including hiring a professional
moving company of Executive's choosing to pack and ship such
belongings, as well as the costs of storage of any such personal
property by such company in connection with such relocation,
commensurate with the value of such property and Executive's status as
a senior executive and (y) an amount equal to the sum of (A) reasonable
points, brokerage fees and closing costs (collectively, "Transaction
Costs") incurred by Executive in connection with the purchase of a
residence in Florida within a reasonable commuting distance of the
Company's headquarters plus (B) an amount such that, after payment by
Executive of all taxes (not including any interest or taxes with
respect thereto) (which taxes shall be calculated based on the highest
combined federal and State of Florida personal income tax rates
applicable in the year of such payment) imposed on the amounts set
forth in clause (y) of this paragraph 3(f)(II), Executive retains an
amount equal to the Transaction Costs; provided, however, that the
amount to be paid under this subclause (y) shall not exceed forty
thousand dollars ($40,000).
All amounts payable above under this paragraph 3(f) shall be paid
within thirty (30) days of Executive's presentment to the Company of
documentation reasonably satisfactory of the Board.
In addition, in the event that (i) Executive is unable to sell his
residence, located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, for a
price the pre-tax proceeds of which, net only of reasonable brokerage fees and
closing costs incurred by him in connection with the sale of such residence is
equal or more than Executive's basis (for federal income tax purposes) in such
residence (up to a maximum of two million five hundred and fifty thousand
dollars ($2,550,000) the "Minimum Price") on or prior to January 10, 2004, and
(ii) Executive is nonetheless able to find on or prior to April 30, 2004 a
purchaser who is ready, willing and able, pursuant to a bona fide purchase and
sale agreement that is assignable to the Company, to purchase such residence the
Company shall purchase such residence from Executive for the Minimum Price, and
Executive shall assign such agreement to the Company, subject to the condition
subsequent that such agreement be consummated
4. Termination. The Employment Period shall continue until:
(a) Executive's resignation without Good Reason (as defined below);
(b) the death, or, as determined by the Board in good faith,
disability or other incapacity ("Disability") of Executive;
(c) termination by the Company (by action of the Board in its
discretion) other than for Cause (as defined below), and other than as provided
in (b) above;
(d) termination by the Company (by action of the Board in its
discretion) for Cause; or
(e) Executive's resignation with Good Reason.
5
Execution Copy.
In the event of a termination of the Employment Period for any reason,
Executive shall not be entitled to receive his Base Salary, any fringe benefits
or any Bonus with respect to periods after the effective date of termination of
the Employment Period. In such circumstances, on the Company's regularly
scheduled payroll date immediately following the effective date of termination
of the Employment Period, Executive shall be entitled to receive any accrued but
unpaid Base Salary earned through the date of termination of the Employment
Period. Notwithstanding the previous sentence, in the event of termination of
the Employment Period either by the Company other than for Cause (as described
in clause (c) above), or by the Executive with Good Reason (as described in
clause (e) above), (1) the Options shall immediately vest and become exercisable
in accordance with the terms of paragraph 3(d) above, and (2) in the event that
the affective date of such a termination occurs on any day after the six month
anniversary of the Effective Date, Executive shall also be entitled to an amount
equal to $425,000.
For purposes of this Agreement, "Cause" shall mean (i) any intentional
misapplication by Executive of the Company's or its subsidiaries' funds,
intended to result directly or indirectly in significant gain or personal
enrichment at the expense of the Company or its subsidiaries, or any act of
dishonesty committed by Executive in connection with the Company's or its
subsidiaries' business; (ii) Executive's conviction of a crime involving moral
turpitude; (iii) Executive's non-performance or non-observance in any material
respect of any requirement with respect to Executive's employment hereunder or
under any other agreement between Executive and the Company; or (iv) any other
action by Executive involving willful and deliberate malfeasance or negligence
in the performance of Executive's duties hereunder. If the definition of "Cause"
set forth above conflicts with such definition in the Option Agreements or the
Plan or any agreements referred to therein, the definition set forth herein
shall control. In the event that the Board wishes to terminate Executive for
"Cause" under (iii) above, it shall give Executive at least thirty (30) days'
advance written notice thereof and provide Executive an opportunity to meet with
the Board, discuss the basis for the decision, and a reasonable opportunity to
cure any failure to perform his duties in the manner expected; provided,
however, that Executive shall not exercise the then vested portion of his
Options during such thirty (30) day period; provided, further, however, that any
such termination shall not be effective until the end of such thirty (30) day
period or, if later, the date of Executive's meeting with the Board.
For purposes of this Agreement, "Good Reason" shall mean the
occurrence, without the express prior written consent of Executive, of any of
the following circumstances, unless such circumstances are fully corrected by
the Company within thirty (30) days following written notification by Executive
(which written notice must be delivered within thirty (30) days of the
Executive's becoming aware of the occurrence of such circumstances) that he
intends to terminate his employment for one of the reasons sot forth below: (i)
the failure by the Company to pay to Executive any portion of Executives current
compensation within thirty (30) days of the date such compensation is due; (ii)
a failure by the Company to comply with any material provision of this
Agreement, or (iii) the relocation of Executive's principal office at the
Company to a location outside a fifty (50) mile radius from such present office
location, other than,
6
Execution Copy.
subject to the next sentence, a relocation to any of the Stamford, Connecticut,
Atlanta, Georgia or Tampa Bay, Florida metropolitan areas. In the event of a
relocation to any of the metropolitan areas indicated in the previous sentence,
Executive shall be entitled to relocation benefits substantially similar to the
benefits described in paragraph 3(f) above (with the understanding that a four
month period shall he considered an adequate period for the provision of the
benefits of the type described in clauses (i) through (iii) of paragraph 3(f),
and that the Company's maximum obligation for purposes of benefits of the type
described in clause (I) of paragraph 3(f) shall be $250,000.
5. Resignation as Officer or Director. Following termination of the
Employment period for any reason and upon receipt of written demand of the
Company, Executive shall resign each position (if any) that he then holds as an
officer or director of the Company or any of its subsidiaries.
6. Non-Competition; Preservation of Non-Trade Secret Protectible
Business Interests; Preservation of Trade Secrets. Executive acknowledges that
during the Employment Period he will have access to the Company's Confidential
Information (as defined below) and trade secrets and will meet and develop
relationships with the Company's potential and existing clients, customers and
employees.
(i) During the Employment Period and for twelve (12) months
after the termination of this Agreement and/or Executive's employment
relationship with the Company (including such relationship after
expiration of this Agreement), irrespective of the time, manner, or
method of such termination, Executive shall not, without the express
written consent of the Company, compete or, directly or indirectly,
consult with, render services to, or otherwise participate or attempt
to participate is any manner in a business which competes with, the
Company within the geographic area in which the Company conducted the
Business immediately prior to the termination;
(ii) During or after Executive's employment hereunder,
Executive shall not use or disclose any Confidential Information to any
person or entity without the written authorization of the Company
except to the extent required by a court having competent jurisdiction
or under subpoena from an appropriate government agency, in which event
Executive will use his best efforts to consult with the Company prior
to responding to any such order or subpoena and will cooperate with the
Company in its attempts to block such order or subpoena or seek
confidential treatment for any information so required to be disclosed.
"Confidential Information" includes, but is not limited to, information
concerning the Company's customers; financing strategies and practices;
pricing information and methods; training and operational procedures;
advertising, marketing, and sales information; financial information;
and other data, concepts, strategies, methods, procedures or other
confidential information that is not a trade secret as defined by
Florida Statute Section 688.002; provided, however, that such
Confidential Information shall not
7
Execution Copy.
include any information that has otherwise been disclosed to the public
or is otherwise in the public domain;
(iii) During the Employment Period and for twelve (12) months
after the termination of this Agreement and/or Executive's employment
relationship with the company (including such relationship after
expiration of this Agreement), irrespective of the time, manner, or
method of such termination, Executive shall not solicit, directly or
indirectly, any existing client or customer with whom the Company has a
substantial relationship or any potential client or customer which has
been identified by any of the Company's senior executives as a
potentially significant client or customer, including, without
limitation, in the case where the Company has had active contacts with
such potential client or customer (it being understood, for the sake of
clarity, that any new division or subsidiary of any existing client or
customer (or parent thereof) shall be doomed an existing customer
hereunder);
(iv) During or after Executive's employment hereunder,
Executive shall not adversely affect the Company's customer goodwill
associated with an ongoing business by way of trade name, trademark,
service ▇▇▇▇, trade dress and the like;
(v) During the Employment Period and for twelve (12) months
after the termination of this Agreement and/or Executive's employment
relationship with the Company (including such relationship after
expiration of this Agreement), irrespective of the time, manner, or
method of such termination, Executive shall not use extraordinary or
specialized training received from the Company, except that this shall
not include any general business knowledge and work skills of
Executive, even if developed or improved by Executive while in the
employ of the Company;
(vi) During the Employment Period and for twelve (12) months
after the termination of this Agreement and/or Executives employment
relationship with the Company (including such relationship after
expiration of this Agreement), irrespective of the time, manner, or
method of such termination, Executive shall not solicit, directly or
indirectly, any employee of the Company to leave the employment of the
Company; and/or
(vii) During or after Executive's employment hereunder,
Executive shall not, directly or indirectly, use or disclose any trade
secret as that farm is defined by Florida Statute Section 688.002, or
allow any such trade secret information to be disclosed to or used by
any person or entity, for any reason or purpose whatsoever, without the
express written consent of the Company.
8
Execution Copy.
The restrictive covenants set forth in this paragraph 6 are expressly
intended to benefit the Company, Fortress investment Group and ▇▇▇▇▇▇▇▇▇ Capital
Partners L.P. and their respective subsidiaries, successors, and assigns (the
"Third Party Beneficiaries") and the Company and the Third Party Beneficiaries
are expressly authorized to enforce this provision. Nothing contained in this
paragraph 6 shall limit any common law or statutory obligation that the
Executive may have to the Company. For purposes of this paragraph 6 and
paragraph 7, the "Company" refers to the Company and any incorporated or
unincorporated affiliates of the Company.
7. Assignment of Proprietary Information. Executive agrees that he
shall promptly disclose to the Company in writing all information generated,
conceived or first reduced to practice by him alone or in conjunction with
others, during or after working hours, while in the employ of the Company (all
of which is collectively referred to in this Agreement as "Proprietary
Information"); provided, however, that such Proprietary Information shall not
include (i) any information that has otherwise been disclosed to the public or
is otherwise in the public domain and (ii) general business knowledge and work
skills of Executive, even if developed or improved by Executive while in the
employ of the Company. All such Proprietary Information shall be the exclusive
property of the Company and is hereby assigned by Executive to the Company,
except as otherwise specifically agreed to by the Company in writing.
Executive's obligation relative to the disclosure to the Company of such
Proprietary Information anticipated in this paragraph 7 shall Continue beyond
Executive's termination of employment and Executive shall, at the Company's
expense, give the Company all assistance it reasonably requires to perfect,
protect and use its right to the Proprietary Information.
8. Documents and Personal Property. All documents or other property
relating in any way to the business of the Company which is conceived or
generated by Executive or comes into his possession during his employment shall
be and remain the exclusive property of the Company. Executive agrees promptly
to return all such documents and personal property of the Company to the Company
on termination of his employment or at such earlier time as the Company may
request.
9. Enforcement of Restrictive Covenants. The parties understand and
agree that the restrictive covenants set forth in paragraphs 6 through 8 of this
Agreement (the "Restrictive Covenants") are essential elements of Executive's
employment with the Company. Further, Executive expressly acknowledges that the
restrictions contained in this Agreement are reasonable and necessary to
accomplish and preserve the Company's protectible business interests and trade
secrets and are not contrary to public health, safety or welfare. Executive
further acknowledges that enforcement of the restrictions contained herein will
not deprive Executive of the ability to earn a reasonable living, and that any
violation of the restrictions contained in this Agreement will cause significant
and irreparable harm to the Company. The parties understand and agree further
that the Company shall be entitled to obtain injunctive relief including, but
not limited to, a temporary restraining order or temporary, preliminary, or
permanent injunction, to enforce the provisions of this Agreement.
9
Execution Copy.
10. Effect of Breach of Restrictive Covenants. The parties agree that
the time period covered by any Restrictive Covenant shall he extended by any
period of time during which Executive is in violation of such Restrictive
Covenant, it being understood that for purposes of this paragraph 10 each of
subparagraphs (i) thorough (vii) of paragraph 6 shall be treated as a separate
Restrictive Covenant.
11. Intent of Parties Regarding Restrictive Covenants. It is the intent
of the parties that the Company and the Third Party Beneficiaries be given the
broadest protection allowed by law with regard to the scope of the Restrictive
Covenants. The Restrictive Covenants shall be construed as agreements
independent of any other provision of this Agreement. The existence of any claim
or cause of action of Executive against the Company or the Third Party
Beneficiaries shall not constitute a defense to the enforcement by the Company
or the Third Party Beneficiaries of the Restrictive Covenants. It is expressly
agreed by the parties that if any portion of the Restrictive Covenants set forth
in this Agreement are held to be invalid, unreasonable, overbroad, arbitrary,
against public policy, or otherwise unenforceable, then each such portion of the
Restrictive Covenants shall be considered divisible as to time, geographical
area, and any other relevant feature, with each month of a specified period
being deemed a separate period of time and each mile being deemed a separate
geographical area, it being the intention of the parties that a lesser period of
time, geographical area, or other relevant feature shall be enforced to the
fullest extent permitted by law.
12. Application of Florida Law. It is expressly agreed by the parties
that this Agreement, and the application or interpretation thereof, shall be
governed exclusively by its terms and by the laws of the State of Florida
regardless of where Executive is located at the time of his termination of
employment. 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.
13. Notices. 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 of mail by first-class, registered or certified mail,
return receipt requested, postage prepaid, or transmitted by telegram or fax,
addressed as follows (provided, in the ease of Executives the address of the
Executive shall be deemed to change from time to time to such address as is the
Executive's address recorded at time of notice or other communication in the
Company's records as Executive's current address):
If to the Company:
Pinnacle Holdings Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
10
Execution Copy.
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
and a copy to:
Fortress Investment Group
1251 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
if to Executive:
▇▇▇▇▇ ▇. Grain
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
and a copy to:
Stroock & Stroock & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
14. Paragraph Headings. Paragraph and other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
15. Arbitration. In the event that a dispute arises between the parties
regarding the formation, interpretation and/or the forms and conditions of this
Agreement and/or if there arises any other claim or legal dispute between the
parties, with the exception of disputes involving the enforcement of the
covenants in paragraph 6 through 8 or civil rights (the "Dispute"), the
complaining party shall submit the Dispute in writing to the other party for
resolution. If the Dispute is not resolved between the parties within sixty (60)
days of the date the Dispute is submitted in writing to the other party, the
complaining party must submit the Dispute to final and binding arbitration
before a panel of three arbitrators pursuant in the National Rules for the
Resolution of Employment Dispute of the American Arbitration Association in
effect at the time of the Dispute (the "AAA National Rules") if the complaining
party wishes to pursue the Dispute. The parties expressly understand that by
agreeing to this Arbitration provision, they are
11
Execution Copy.
agreeing to waive any rights to a civil action and/or jury trial regarding any
Disputes between them. However, the provisions of this paragraph do not prohibit
the complaining party from filing an administrative claim with a federal, state,
or local administrative agency. The complaining party must submit a written
Demand for Arbitration to the American Arbitration Association and to the other
party within ninety (90) calendar days after the date of the written submission
of the Dispute to the other party or after receipt of the determination
regarding any administrative claim with a federal, state, or local
administrative agency, or within the statute of limitations set forth under
applicable law regarding the Dispute, whichever is greater. The Demand for
Arbitration form and copies of the AAA National Rules may be obtained from the
Company's Human Resources office. Any demand for arbitration not submitted
within the ninety (90) calendar day period or within the applicable statute of
limitations shall be deemed untimely. Once a demand for arbitration has been
submitted, either party may request that the Dispute be submitted to nonbinding
mediation prior to any arbitration hearing as set forth in the AAA National
Rules. The parties shall share all costs, filing fees, and administrative fees
for the mediation and/or arbitration (the "Expenses") equally as they come due;
provided, however, that Executive's share of the Expenses shall not exceed four
weeks of Base Salary and the parties shall be responsible for their own
attorneys' fees, witness fees, and travel costs; provided, further, that, if
Executive is the prevailing party as to at least a significant portion (which
may be less than 50%) of the items in the Dispute, he shall be entitled to be
paid his reasonable attorney's fees incurred in connection with such Dispute
from the other party to such Dispute.
The arbitrators shall have the authority to rule on any and all issues
properly presented in the Demand for Arbitration and/or pursuant to the AAA
National Rules, including but not limited to the enforceability of this
Agreement, the arbitrability of any issue, and the timeliness of any submission
or demand; and may award any and all relief provided under applicable law. The
arbitrators' award may be enforced, vacated, modified or corrected as set forth
in the Federal Arbitration Act, 9 U.S.C ss. 1 et seq. This Agreement shall be
governed by the Federal Arbitration Act, 9 U.S.C ss. 1 et seq., as amended, and
the applicable rules of the American Arbitration Association set forth in this
Agreement. This Agreement shall be binding upon, and shall inure to the benefit
of Executive, the Company, the Third Party Beneficiaries and their respective
successors and assigns.
16. Severability. If any provision of this Agreement is found to be
unenforceable, the remaining provisions shall be enforced to the extent
permitted by applicable law. Further, in lieu of any such unenforceable
provision, there shall be substituted in its place a provision as similar in
substance and effect as is capable of being enforced.
17. Successors and Assigns. This Agreement shall bind and inure to the
benefit of and be enforceable by the Company and Executive and their respective
assigns; provided, however, that Executive may not assign his rights or
obligations under this Agreement without the prior written consent of the
Company as authorized by the Board.
12
Execution Copy.
18. Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together shall constitute one
and the same Agreement.
19. No Strict Construction. The parties to this Agreement have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
20. No Conflicting Obligations. The Executive represents to the Company
that is not party to any agreement or understanding, written or oral, which
would interfere with his ability to perform his obligations under this
Agreement.
21. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties respecting the employment of Executive (other than the
Option Agreement, which is governed by the terms thereof and of the Option
Plan), and there are no representations, warranties or commitments by either
party hereto to the other, except as set forth herein. This Agreement may be
amended only by an instrument in writing executed by Executive and on behalf of
the Company by another duly authorized signatory at the direction of the Board.
The provisions of this Agreement shall supersede any and all other oral
agreements, if any, between Executive and the Company (the "Agreements"), which
Prior Agreements shall be null and void in their entirety from and after the
Effective Date.
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
PINNACLE HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer
EXECUTIVE
By: /s/ ▇▇▇▇▇. J. Grain
-------------------------------------
▇▇▇▇▇. J. Grain
Executive Employment Agreement, dated as of January 31, 2003
As amended in Section 3(f) as of January 15, 2004.
14