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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of April 20, 1999, by and between
SPECTRASITE HOLDINGS, INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ (the "Employee").
W I T N E S S E T H:
WHEREAS the Company desires to induce the Employee to enter into
employment with the Company for the period provided in this Agreement, and the
Employee is willing to accept such employment with the Company on a full-time
basis, all in accordance with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto hereby covenant and agree
as follows:
1. Employment. (a) The Company hereby agrees to employ the Employee, and
the Employee hereby agrees to accept such employment with the Company, beginning
on a date of the Employee's choosing within thirty (30) days of the date hereof
(the "Effective Date") and continuing for the period set forth in Section 2
hereof, all upon the terms and conditions hereinafter set forth.
(b) The Employee affirms and represents that as of the commencement of
his employment by the Company on the Effective Date he will be under no
obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
2. Term of Employment. (a) Unless earlier terminated as provided in this
Agreement, the term of the Employee's employment under this Agreement shall be
for a period beginning on the Effective Date and ending on the fifth anniversary
of the Effective Date (the "Initial Term").
(b) The term of the Employee's employment under this Agreement shall be
automatically renewed for additional one-year terms (each a "Renewal Term") upon
the expiration of the Initial Term or any Renewal Term unless the Company or the
Employee delivers to the other, at least one year prior to the expiration of the
Initial Term or the then current Renewal Term, as the case may be, a written
notice specifying that the term of the Employee's employment will not be renewed
at the end of the Initial Term or such Renewal term, as the case may be. The
period from the Effective Date until the fifth anniversary of said date or, in
the event that the Employee's employment hereunder is earlier terminated as
provided herein
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or renewed as provided in this Section 2(b), such shorter or longer period, as
the case may be, is hereinafter called the "Employment Term".
3. Duties. The Employee shall be employed as Executive Vice President
Business Development of the Company, shall faithfully and competently perform
such duties as inhere in such position and as are specified in the By-laws of
the Company and shall also perform and discharge such other executive employment
duties and responsibilities as the Board of Directors of the Company shall from
time to time determine. The Employee shall perform his duties principally at the
offices of the Company in Cary, North Carolina, with such travel to such other
locations from time to time as the Board of Directors of the Company may
reasonably prescribe. Except as may otherwise be approved in advance by the
Board of Directors of the Company, and except during vacation periods and
reasonable periods of absence due to sickness, personal injury or other
disability, the Employee shall devote his full business time throughout the
Employment Term to the services required of him hereunder. The Employee shall
render his business services exclusively to the Company and its subsidiaries
during the Employment Term and shall use his best efforts, judgment and energy
to improve and advance the business and interests of the Company and its
subsidiaries in a manner consistent with the duties of his position. Nothing
contained in this Section 3 shall preclude the Employee from performing services
for charitable or not-for-profit community organizations, provided that such
activities do not interfere with the Employee's performance of his duties and
responsibilities under this Agreement.
4. Salary and Bonus. (a) Salary. As compensation for the performance by
the Employee of the services to be performed by the Employee hereunder during
the Employment Term, the Company shall pay the Employee a base salary at the
annual rate of One Hundred Seventy-Five Thousand Dollars ($175,000) (said
amount, together with any increases thereto as may be determined from time to
time by the Board of Directors of the Company in its sole discretion, being
hereinafter referred to as "Salary"). Any Salary payable hereunder shall be paid
in regular intervals in accordance with the Company's payroll practices from
time to time in effect.
(b) Bonus. The Employee shall be eligible to receive bonus compensation
from the Company in respect of each fiscal year (or portion thereof) occurring
during the Employment Term in accordance with the Company's management bonus
plan as in effect from time to time, in each case as may be determined by the
Board of Directors of the Company in its sole discretion on the basis of
performance-based criteria to be established from time to time by the Board of
Directors in its sole discretion. Such bonus amount with respect to any fiscal
year is expected to be up to 40% of the Employee's annual Salary if the Company
achieves its plan approved by the Board of Directors of the Company for such
fiscal year. Any bonus payable under this Section 3(b) shall be pro-rated for
any portion of a fiscal year occurring during the
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Employment Term, provided that there shall be no proration for the 1999 fiscal
year but the amount of the bonus for 1999 shall be offset by the amount of the
bonus (if any) which the Employee receives from Nextel Communications, Inc. or
its affiliates in connection with the Employee's services thereto for the period
from January 1, 1999 through the Effective Date).
5. Other Benefits; Company Stock. (a) General. During the
Employment Term, the Employee shall:
(i) be eligible to participate in employee fringe benefits and
pension and/or profit sharing plans that may be provided by the Company
for its senior executive employees in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(ii) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by the Company
for its senior executive employees in accordance with the provisions of
any such plans, as the same may be in effect from time to time;
(iii) be entitled to the number of paid vacation days in each
calendar year determined by the Company from time to time for its senior
executive officers, provided that such number of paid vacation days in
each calendar year shall not be less than twenty work days (four calendar
weeks); the Employee shall also be entitled to all paid holidays given by
the Company to its senior executive officers;
(iv) be eligible for consideration by the Board of Directors of
the Company for awards of stock options under any stock option plan which
may be established by the Company for its and its subsidiaries' key
employees, the amount, if any, of shares for which options may be granted
to Employee to be in the sole discretion of the Board of Directors of the
Company;
(v) be entitled to sick leave, sick pay and disability benefits in
accordance with any Company policy that may be applicable to senior
executive employees from time to time;
(vi) be entitled to use of an automobile provided by the Company,
which shall be a Jeep Grand Cherokee or an automobile which the Employee
and the Company agree is equivalent to a Jeep Grand Cherokee; and
(vii) be entitled to reimbursement for all reasonable and
necessary out-of-pocket business expenses incurred by the Employee in the
performance of his duties hereunder in accordance with the Company's
normal policies from time to time in effect
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(including, without limitation, relocation expenses).
(b) Options. Simultaneously with the execution and delivery of
this Agreement by the parties hereto, the Company has granted the Employee
options (the "Options") to purchase 200,000 shares of Common Stock, $.001 par
value, of the Company at a purchase price of $5.00 per share, which options
shall vest in twenty percent increments over a five-year period with the first
twenty percent vesting on April 20, 2000, all as provided in the Option
Agreement of even date herewith between the Company and the Employee. The
Company shall cause all of the Options to vest 100% in the event that the
Company terminates the Employee's employment hereunder other than pursuant to
clause (iii) of Section 7(a) below.
6. Confidential Information. The Employee hereby covenants, agrees
and acknowledges as follows:
(a) The Employee has and will have access to and will participate
in the development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of the Company and
any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not
limited to (i) customer lists; claims histories, adjustments and
settlements and related records and compilations of information; the
identity, lists or descriptions of any new customers, referral sources or
organizations; financial statements; cost reports or other financial
information; contract proposals or bidding information; business plans;
training and operations methods and manuals; personnel records; software
programs; reports and correspondence; and management systems, policies or
procedures, including related forms and manuals; (ii) information
pertaining to future developments such as future marketing or acquisition
plans or ideas, and potential new business locations; (iii) confidential
or non-public information relating to business operations and strategic
plans of third parties with which the Companies have or may be assessing
commercial arrangements, including, without limitation, site build and
deployment plans and schedules, search ring and site locations or
potential locations, actual or projected wireless system subscribers and
capital expenditures and operating cost information ("Third Party
Information") and (iv) all other tangible and intangible property, which
are used in the business and operations of the Companies but not made
public. The information and trade secrets relating to the business of the
Companies described hereinabove (including Third Party Information) in
this paragraph (a) are hereinafter referred to collectively as the
"Confidential Information", provided that the term Confidential
Information shall not include any information (x) that is or becomes
generally publicly available (other than as a result of violation of this
Agreement by the Employee), (y) that the Employee receives on a
nonconfidential basis from a source (other than the Companies or their
representatives) or, in the case of Third Party
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Information, from a source (other than the Companies, the third parties to which
such information relates or their respective representatives) that is not known
by him to be bound by an obligation of secrecy or confidentiality to any of the
Companies (or such third parties, in the case of Third Party Information) or (z)
that was in the possession of the Employee prior to disclosure by the Companies
(or such third parties, in the case of Third Party Information).
(b) The Employee shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such Confidential
Information in any way except as is in the best interests of the Companies in
the performance of the Employee's duties under this Agreement. The Employee may
disclose Confidential Information when required by a third party and applicable
law or judicial process, but only after providing immediate notice to the
Company at any third party's request for such information, which notice shall
include the Employee's intent with respect to such request.
(c) The Employee acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 6 would be
inadequate and, there fore, agrees that the Companies shall be entitled to
injunctive relief in addition to any other available rights and remedies in case
of any such breach or threatened breach by the Employee (and the Employee hereby
waives any requirement that any of the Companies provide a bond or other
security in connection with the issuance of any such injunction); provided,
however, that nothing contained herein shall be construed as prohibiting the
Companies from pursuing any other rights and remedies available for any such
breach or threatened breach.
(d) The Employee agrees that upon termination of his employment with the
Company for any reason, the Employee shall forthwith return to the Company all
Confidential Information in whatever form maintained (including, without
limitation, computer discs and other electronic media).
(e) The obligations of the Employee under this Section 6 shall, except as
otherwise provided herein, survive the termination of the Employment Term and
the expiration or termination of this Agreement.
(f) Without limiting the generality of Section 10 hereof, the Employee
hereby expressly agrees that the foregoing provisions of this Section 6 shall be
binding upon the Employee's heirs, successors and legal representatives.
(g) The Employee hereby expressly acknowledges that the foregoing
provisions of this Section 6, insofar as they relate to Third Party Information
provided by or concerning
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Nextel Communications, Inc. or any of its Affiliates (other that the
Companies, Nextel Communications, Inc. and such Affiliates (the "Nextel
Beneficiaries")) are intended to be for the express benefit of the Nextel
Beneficiaries and may be enforced by the Nextel Beneficiaries by the same
means and with the same effect as if such Nextel Beneficiaries were the
Company and signatory parties to this Agreement.
7. Termination. (a) The Employee's employment hereunder shall
be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) the Employee's inability to perform his duties on account
of disability or incapacity for a period of one hundred eighty (180) or
more days, whether or not consecutive, within any period of twelve (12)
consecutive months;
(iii) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated "for cause"
(as defined below);
(iv) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated other than
pursuant to clause (i), (ii) or (iii) above; or
(v) the Employee terminates his employment hereunder for any
reason whatsoever (whether by reason of retirement, resignation or
otherwise).
The following actions, failures and events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) a conviction of the Employee of, or the entering of a plea of
nolo contendere by the Employee with respect to, a felony, (B) dependence on, or
habitual abuse of, controlled substances or alcohol (in the case of alcohol
abuse, that has a material adverse affect on Employee's performance of his
obligations under this Agreement) or acts of dishonesty by the Employee that are
materially detrimental to one or more of the Companies, (C) wilful misconduct by
the Employee that materially damages the business of one or more of the
Companies, (D) gross negligence by the Employee in the performance of, or wilful
disregard by the Employee of, his material obligations under this Agreement or
otherwise relating to his employment, which gross negligence or wilful disregard
continues unremedied for a period of fifteen (15) days after written notice
thereof to the Employee or (E) failure by the Employee to obey the reasonable
and lawful orders and policies of the Board of Directors that are material to
and consistent with the provisions of this Agreement (provided that, in the case
of an indictment described in clause (A) above, and in the case of clauses (B),
(C) and (E) above, the Employee shall have received written notice of such
proposed termination (which notice shall state the Sections of this Agreement
pursuant to which
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such termination is being effected and a description of the facts supporting
such termination) and a reasonable opportunity (together with the Employee's
counsel) to discuss the matter with the Board of Directors of the Company,
followed by a notice that the Board of Directors of the Company adheres to its
position).
(b) In the event that the Employee's employment terminates pursuant to
clause (i) or (ii) of Section 7(a) above or is terminated by the Company
pursuant to clause (iv) of Section 7(a) above, whether during the Initial Term
or during any Renewal Term pursuant to Section 2(b) above, then (i) during the
period beginning on the date of such termination and ending on the last day of
the Applicable Period (as defined in Section 9(a)), the Company shall pay to the
Employee, as severance pay or liquidated damages or both, monthly payments equal
to one-twelfth of (x) the rate per annum of his Salary at the time of such
termination plus (y) the average annualized bonus the Employee was paid by the
Company for the fiscal years during the term of this Agreement ending prior to
the date of such termination, provided, however, that no such payments shall be
required to be made if the Employee fails to comply with his obligations under
Section 9 below; (ii) the Company shall continue to provide the Employee with
the health insurance benefits provided to other employees of the Company
(including employer contributions) from the date of such termination until the
earlier to occur of (x) the last day of the Applicable Period or (y) the date
upon which the Employee becomes eligible for coverage under the health insurance
plan of another employer and (iii) the Options held by the Employee that are
vested as of the date of such termination shall continue to be exercisable by
the Employee until the earlier to occur of (x) the last day of the Applicable
Period or (y) the expiration of the ten year term of such Options.
(c) Notwithstanding anything to the contrary expressed or implied herein,
except as required by applicable law and except as set forth in Section 7(b)
above, the Company (and its affiliates) shall not be obligated to make any
payments to the Employee or on his behalf of whatever kind or nature by reason
of the Employee's cessation of employment (including, without limitation, by
reason of termination of the Employee's employment by the Company's for
"cause"), other than (i) such amounts, if any, of his Salary as shall have
accrued and remained unpaid as of the date of said cessation and (ii) such other
amounts, if any, which may be then otherwise payable to the Employee pursuant to
the terms of the Company's benefits plans.
(d) No interest shall accrue on or be paid with respect to any portion of
any payments hereunder.
8. Non-Assignability. (a) Neither this Agreement nor any right or
interest hereunder shall be assignable by the Employee or his beneficiaries or
legal representatives without the Company's prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity.
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(b) Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment, levy or similar process or to assignment by operation of law, and
any attempt, voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
9. Restrictive Covenants.
(a) Competition. During the Employment Term and during the
Applicable Period (as defined below), the Employee will not directly or
indirectly (as a director, officer, executive employee, manager, consultant,
independent contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be connected with
any business or organization which engages in competition with any of the
Companies within the meaning of Section 9(d), provided, however, that the
provisions of this Section 9(a) shall not be deemed to prohibit the Employee's
ownership of not more than two percent (2%) of the total shares of all classes
of stock outstanding of any publicly held company, or ownership, whether through
direct or indirect stock holdings or otherwise, of one percent (1%) or more of
any other business. For purposes of this Agreement, the "Applicable Period"
shall mean the twenty-four (24) month period following the termination of the
Employee's employment hereunder for any reason whatsoever.
(b) Non-Solicitation. During the Employment Term and during the
Applicable Period, the Employee will not directly or indirectly induce or
attempt to induce any management employee of any of the Companies to leave the
employ of the Company or such subsidiary or affiliate, or in any way interfere
with the relationship between any of the Companies and any employee thereof.
(c) Non-Interference. During the Employment Term and during the
Applicable Period, the Employee will not directly or indirectly hire, engage,
send any work to, place orders with, or in any manner be associated with any
supplier, contractor, subcontractor or other business relation of any of the
Companies if such action would be known by him to have a material adverse effect
on the business, assets or financial condition of any of the Companies or
materially interfere with the relationship between any such person or entity and
any of the Companies.
(d) Certain Definitions.
(i) For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of
one or more of the Companies, or a person or entity (including, without
limitation, the Employee) shall be
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deemed to be engaging in competition with one or more of the Companies,
if such person or entity engages in the business of acquiring or
constructing towers for telecom carriers or operators or engaging in any
other business engaged in by the Companies at the time of termination of
the Employee's employment with the Company, in either case in the
geographic region encompassing the service areas in which any of the
Companies conduct, or had an established plan to begin conducting, their
businesses at the time of termination of the Employee's employment with
the Company.
(ii) For purposes of this Section 9, no corporation or entity that
may be deemed to be an affiliate of the Companies solely by reason of its
being controlled by, or under common control with, Welsh, Carson,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VIII, L.P. or any of their respective affiliates other
than the Companies, will be deemed to be an affiliate of the Companies.
(e) Certain Representations of the Employee. In connection with
the foregoing provisions of this Section 9, the Employee represents that his
experience, capabilities and circumstances are such that such provisions will
not prevent him from earning a livelihood. The Employee further agrees that the
limitations set forth in this Section 9 (including, without limitation, time and
territorial limitations) are reasonable and properly required for the adequate
protection of the current and future businesses of the Companies. It is
understood and agreed that the covenants made by the Employee in this Section 9
(and in Section 6 hereof) shall survive the expiration or termination of this
Agreement.
(f) Injunctive Relief. The Employee acknowledges and agrees
that a remedy at law for any breach or threatened breach of the provisions of
Section 9 hereof would be inadequate and, therefore, agrees that the Company and
any of its subsidiaries or affiliates shall be entitled to injunctive relief in
addition to any other available rights and remedies in cases of any such breach
or threatened breach (and the Employee hereby waives any requirement that any of
the Companies provide a bond or other security in connection with the issuance
of any such injunction); provided, however, that nothing contained herein shall
be construed as prohibiting the Company or any of its affiliates from pursuing
any other rights and remedies available for any such breach or threatened
breach.
10. Purchase of Common Stock. (a) Restricted Stock. On or
prior to April 20, 1999, Employee shall be offered for purchase 50,000 shares of
Common Stock of the Company, in accordance with the terms and conditions of that
certain Restricted Stock Purchase Agreement dated April 20, 1999, by and between
the Company and the Employee. Within thirty (30) days of his purchase of such
shares, the Employee shall file an election with the Internal Revenue Service
("IRS") pursuant to Section 83(b) of the Internal Revenue Code to include in his
gross income for 1999 the excess of the fair market value of such shares over
the Ten Cents ($0.10) per share "Purchase Price" he paid for such shares under
the Restricted Stock Purchase Agreement
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(the "Discount"). The fair market value of the shares shall be determined by an
independent valuation company retained by the Company, and the Company shall pay
all expenses of such appraisal. At the time the Employee purchases such shares,
the Company shall pay to the Employee, subject to withholding for income and
payroll taxes, a bonus equal to eighty-two percent (82%) of the Discount to help
offset the Employee's tax liability for the amount of the Discount (the
"Gross-Up").
(b) Indemnity. The Company shall indemnify and hold the Employee
harmless, on an after-tax basis, from and against any additional income or
payroll taxes, as well as any interest or penalties applicable thereto
(collectively, the "Taxes"), which the Employee may be required to pay if it is
determined that the Discount was greater than that intitially determined by the
independent valuation company retained by the Company. In the event that the IRS
or any state or local taxing authority ("Taxing Authority") shall dispute the
fair market value of the shares purchased by the Employee pursuant to the
Restricted Stock Purchase Agreement and assert that the Discount was greater
than that intitially determined by the independent valuation company retained by
the Company, then the Employee shall notify the Company of such claim by the
Taxing Authority within ten (10) days of receiving such notice from the Taxing
Authority. If the amount of the indemnity payment under this Section 10(b) is
determined to be Twenty Thousand Dollars ($20,000) or less, then the Employee,
in his sole discretion, shall have the right to require that the Company make
such payment (without further need to follow the procedure described below) and
the Employee shall release the Company from further liability under this Section
10(b).
If, within thirty (30) days of receiving the Employee's notice of
such claim by a Taxing Authority, the Company gives the Employee written notice
that it desires to contest such claim (and the Employee has not released the
Company from its liability under this Section 10(b)), the Employee shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim;
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such
claim by an attorney reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order effectively to
contest such claim; and
(iv) permit the Company to participate in any proceedings relating to
such claim.
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The Company shall control all proceedings taken in connection with any
contest of the Taxes with a Taxing Authority and, at its sole option, may (A)
pursue or forego any and all administrative appeals, proceedings, hearings and
conferences with the Taxing Authority in respect of such claim, (B) direct the
Employee to pay the Taxes claimed and ▇▇▇ for a refund, or (C) contest the claim
in any permissible manner, and the Employee agrees to prosecute such contest to
a final determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Employee harmless,
on an after-tax basis, from any Taxes incurred by the Employee on the Company's
payment of the Employee's costs and expenses hereunder. If the Company directs
the Employee to pay such claim and ▇▇▇ for a refund, the Company shall advance
the amount of such payment to the Employee on an interest-free basis and shall
indemnify and hold the Employee harmless, on an after-tax basis, from and
against any Taxes imposed with respect to such advance (including with respect
to any income imputed in connection with such advance). If the Company directs
the Employee to contest the claim, then any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed to be due shall be
limited solely to such contested amount.
11. Moving Principal Residence. (a) Moving Expenses. Upon proper
substantiation and documentation by the Employee, the Company shall reimburse
the Employee for reasonable expenses associated with moving his principal
residence from Virginia to the vicinity of Cary, North Carolina, in accordance
with the Company's Moving and Relocation Policy, provided that the $75,000
expense limit in such policy shall be replaced by a limit of $50,000. In no
event shall the Employer reimburse any such expenses incurred beyond December
31, 1999.
(b) Relocation Bonus. Within three (3) business days of the date the
Company receives notice from the Employee that he has consummated the purchase
of the Employee's principal residence in the vicinity of Cary, North Carolina,
the Company shall pay to the Employee a bonus of Forty Thousand Dollars
($40,000), subject to applicable withholding. This bonus shall be paid in
addition to and notwithstanding the reimbursement of the Employee's moving
expenses under Section 11(b).
12. Binding Effect. Without limiting or diminishing the effect of the
provisions affecting assignment of this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, legal representatives and assigns and, as set forth in
Section 6(g) hereof, shall inure to the benefit of the Nextel Beneficiaries.
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13. Notices. All notices which are required or may be given pursuant to
the terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid,
(iii) sent via a nationally recognized overnight courier or (iv) sent via
facsimile confirmed in writing to the recipient, if to the Company at the
Company's principal place of business, and if to the Employee, at his home
address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
14. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
15. Severability. The Employee agrees that in the event that any court of
competent jurisdiction shall finally hold that any provision of Section 6 or 9
hereof is void or constitutes an unreasonable restriction against the Employee,
the provisions of such Section 6 or 9 shall not be rendered void but shall apply
with respect to such extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances. If any part of this Agreement
other than Section 6 or 9 is held by a court of competent jurisdiction to be
invalid, illegible or incapable of being enforced in whole or in part by reason
of any rule of law or public policy, such part shall be deemed to be severed
from the remainder of this Agreement for the purpose only of the particular
legal proceedings in question and all other covenants and provisions of this
Agreement shall in every other respect continue in full force and effect and no
covenant or provision shall be deemed dependent upon any other covenant or
provision.
16. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
17. Arbitration. With the exception of any dispute regarding the
Employee's compliance with the provisions of Sections 6 and 9 above, any dispute
relating to or arising out of the provisions of this Agreement shall be decided
by arbitration in Cary, North Carolina, in accordance with the Expedited
Arbitration Rules of the American Arbitration Association then obtaining, unless
the parties mutually agree otherwise in a writing signed by both parties. This
undertaking to arbitrate shall be specifically enforceable. The decision
rendered by the arbitrator will be final and judgment may be entered upon it in
accordance with appropriate laws in any court having jurisdiction thereof. Each
of the parties shall pay his or its own legal fees associated with such
arbitration.
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18. Entire Agreement; Modifications. This Agreement constitutes the
entire and final expression of the agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and
delivered this Agreement as of the day and year first above written.
SPECTRASITE HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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