EMPLOYMENT AGREEMENT
Exhibit 10.25
This Employment Agreement (“Agreement”) is entered into on this 20th day of
December 2005 (“Effective Date”) by Xxxxxx Xxxxxxx (“Xx. Xxxxxxx”) and SunCom Wireless Management
Company, Inc. (“SunCom”) on behalf of itself and each of its respective affiliates as set forth in
Exhibit “A” (collectively, the “SunCom Affiliates”). As used herein, “SunCom Companies” shall mean
SunCom and the SunCom Affiliates collectively.
RECITALS
WHEREAS, SunCom is engaged in the business of providing wireless telecommunication services in
the southeastern United States and the Commonwealth of Puerto Rico (the “Business”);
WHEREAS, from July 13, 1998 through the Effective Date, Xx. Xxxxxxx had been employed by
SunCom on an “at-will” basis;
WHEREAS, SunCom and Xx. Xxxxxxx have agreed to enter into this Agreement to set forth the
terms and conditions of Xx. Xxxxxxx’ continued employment with SunCom from and after the Effective
Date;
WHEREAS, the parties agree it is in their best interests to set forth the terms and conditions
of Xx. Xxxxxxx’ continued employment and the potential bonuses and benefits offered to him in
exchange for his continued employment.
NOW THEREFORE, in exchange for mutual consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:
1. Term. The term of this Agreement shall commence on the Effective Date and continue
for a period of one (1) year (“Term”) unless earlier terminated in accordance with the terms of
this Agreement. The term will extend automatically for successive one-year periods commencing on
such date unless either party provides written notice to the other party at least sixty (60) days
prior to the renewal date.
2. Duties and Obligations. Xx. Xxxxxxx agrees to remain employed as Senior Vice
President, Finance & Treasurer of SunCom and to continue performing the duties he has previously
performed in this capacity in a manner satisfactory to SunCom. Xx. Xxxxxxx agrees to perform those
additional duties which may be reasonably assigned to him from time-to-time during his continued
employment.
3. Compensation and Benefits.
(a) Base Salary. During the term of his employment, SunCom shall continue to pay Xx.
Xxxxxxx an annual salary of $190,307.52, subject to applicable withholdings.
SunCom shall pay Xx. Xxxxxxx his salary in equal bi-weekly installments or in such other
installments as SunCom pays other similarly situated officers.
(b) Benefits.
(i) Benefits Plans. During the term of his employment, Xx. Xxxxxxx shall continue to
be eligible to participate in any benefit plan sponsored or maintained by SunCom for the benefit of
its group of senior officers, including, without limitation, any group life, Flexible Spending
Account, medical, disability insurance or similar plan or program of SunCom, whether now existing
or established hereafter, to the extent that Xx. Xxxxxxx is eligible to participate in any such
plan under the generally applicable provisions thereof.
(ii) Business Expenses. During the term of his employment, SunCom shall pay or
reimburse Xx. Xxxxxxx for all reasonable expenses incurred or paid by Xx. Xxxxxxx during his
employment in the performance of Xx. Xxxxxxx’ duties hereunder; provided Xx. Xxxxxxx shall account
for and substantiate all such expenses in accordance with SunCom’s policies for reimbursement of
the expenses of its officers.
(c) Bonus. During the term of his employment, Xx. Xxxxxxx shall be
eligible for the following bonuses.
(i) SunCom
will pay Xx. Xxxxxxx a bonus on the next regularly scheduled
payday after March 31, 2006 in the amount of $300,000.00, subject to applicable withholdings,
guaranteed in lieu of the 2005 Management Business Objective (MBO) bonus payable in March 2006.
(ii) SunCom will pay Xx. Xxxxxxx an additional bonus on the next regularly scheduled payday
after June 30, 2006, in the amount of $250,000, subject to applicable withholdings, guaranteed in
lieu of the Executive Bonus (i.e., 30-30-40) to be paid in August 2006.
(d) Stock. During the term of his employment, Xx. Xxxxxxx shall be eligible
for the following
(i) SunCom will accelerate the lapsing of
restrictions on 60,000
shares of stock on March 31, 2006, the restrictions on such shares are currently scheduled to lapse
after March 2006.
(ii) SunCom will accelerate the lapsing of restrictions on 30,000 shares of
stock on June 30, 2006, the restrictions on such shares are currently scheduled to lapse after June
2006.
(iii) Acceleration of vesting will be provided in lieu of any additional stock grants in
2006 and all other shares of stock granted to Xx. Xxxxxxx and not accelerated pursuant to Sections
3(d)(i) or 3(d)(ii) and for which restrictions have not lapsed shall be forefeit and returned to
SunCom.
(e) Other Compensation & Benefits. Other than the compensation and benefits set forth
in this Section 3, Xx. Xxxxxxx shall have no right to any additional compensation or benefits from
SunCom during the Term of his employment.
- 2 -
4. Severance. Should Xx. Xxxxxxx or SunCom decide to terminate his employment at any
time after March 31, 2005 for any reason other than “for cause” as defined in Section 5 of this
Agreement, SunCom will pay Xx. Xxxxxxx up to six (6) months of base salary continuation (the
“Severance Payment”) payable over up to a six (6) month period following the end of the employment
if alternative employment is not secured and if a Separation Agreement and General Release
substantially in the form attached hereto as Exhibit “B” is executed (the “Severance Agreement”)
The Severance Payment shall not include health and welfare or other benefits or payments. In order
to receive the Severance Payment as set forth in this Paragraph, each party agrees to give the
other sixty (60) days prior written notice during the Term of this Agreement. In the event that
such benefits constitute “deferred compensation” payable to a “key employee” of a publicly-traded
corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, such
benefits shall not be payable until six months following Xx. Xxxxxxx’ separation from service.
5. Termination of Agreement. During the Term of this Agreement, SunCom shall have the
right to terminate this Agreement for cause without notice at any time in its sole discretion. For
the purposes of this Agreement, “for cause” shall be defined as: (1) Xx. Xxxxxxx’ material breach
of this Agreement or material failure to perform his duties for SunCom; (2) Xx. Xxxxxxx’ negligence
in the performance or intentional nonperformance of the duties and responsibilities hereunder; (3)
Xx. Xxxxxxx’ dishonesty, theft, or fraud with respect to the performance of his duties; (4) Xx.
Xxxxxxx’ conviction of, or plea of guilty or nolo contendere to, a felony or crime involving moral
turpitude; or (5) Xx. Xxxxxxx’ violation of (or causing SunCom Companies to violate) any rules or
regulations of any governmental or regulatory body, which is materially injurious to SunCom
Companies.
6. Restrictive Covenants.
(a) Non-Competition. During Xx. Xxxxxxx’ employment with SunCom and for a period of
one (1) year following the termination of Xx. Xxxxxxx’ employment with SunCom at any time and for
any reason, Xx. Xxxxxxx shall not, on Xx. Xxxxxxx’ own behalf or on behalf of others, directly or
indirectly (whether as an employee, consultant, investor, partner, sole proprietor or otherwise),
be employed by, perform any services for, or hold any ownership interest in any business engaged in
the business of selling personal communications services or personal communications handsets and
accessories in SunCom’s service territory in which SunCom is doing business, or in which SunCom has
established plans to do business as of the date of the termination of Xx. Xxxxxxx’ employment with
SunCom. The above notwithstanding, the ownership, for investment purposes, of up to one percent
(1%) of the total outstanding equity securities of a publicly traded company, shall not be
considered a violation of this.
(b) Non-Disparagement. Xx. Xxxxxxx further agrees that both during Xx. Xxxxxxx’
employment with SunCom and thereafter Xx. Xxxxxxx will not make any disparaging or defamatory
comments about SunCom or the Company, or any of their officers, directors, management, or
employees, nor will you authorize encourage or participate with anyone on your behalf to make such
statements.
- 3 -
(c) Confidentiality. Xx. Xxxxxxx further agrees that both during Xx. Xxxxxxx’
employment with SunCom and thereafter Xx. Xxxxxxx will not disclose to any third party or use in
any way (except in performing Xx. Xxxxxxx’ duties while employed by SunCom in furtherance of the
best interests of SunCom) any confidential information, business secrets, or business opportunity
of SunCom, including without limitation, drawings, designs, blueprints, plans, marketing,
advertising and promotional ideas and strategies, marketing surveys and analyses, technology,
budgets, business plans, customer or supplier lists, research or financial, purchasing, planning,
employment or personnel data or information. Immediately upon termination of Xx. Xxxxxxx’
employment or at any other time upon SunCom’s request, Xx. Xxxxxxx will return to SunCom all
memoranda, notes and data, and computer software and hardware, records or other documents compiled
by Xx. Xxxxxxx or made available to Xx. Xxxxxxx during Xx. Xxxxxxx’ employment with SunCom
concerning the business of SunCom, all other confidential information and all personal property of
SunCom, including without limitation, all drawings, designs, blueprints, plans, files, records,
documents, lists, equipment, supplies, promotional materials, keys, phone or credit cards and
similar items and all copies thereof or extracts therefrom.
(d) Intangible Property. Xx. Xxxxxxx will not at any time during or after Xx.
Xxxxxxx’ employment with SunCom have or claim any right, title or interest in any trade name,
trademark, patent, copyright, work for hire or other similar rights belonging to or used by SunCom
and shall not have or claim any right, title or interest in any material or matter of any sort
prepared for or used in connection with the business or promotion of SunCom, whatever Xx. Xxxxxxx’
involvement with such matters may have been, and whether procured, produced, prepared, or published
in whole or in part by Xx. Xxxxxxx, it being the intention of the parties that Xx. Xxxxxxx shall
and hereby does, recognize that SunCom now has and shall hereafter have and retain the sole and
exclusive rights in any and all such trade names, trademarks, patents, copyrights (all Xx. Xxxxxxx’
work in this regard being a work for hire for SunCom under the copyright laws of the United
States), material and matter as described above. If any work created by Xx. Xxxxxxx is not a work
for hire under the copyright laws of the United States, then Xx. Xxxxxxx hereby assigns to SunCom
all rights, title and interests in each such work (including, but not limited to, copyright
rights). Xx. Xxxxxxx shall cooperate fully with SunCom during Xx. Xxxxxxx’ employment and
thereafter in the securing of trade name, trademark, patent or copyright protection or other
similar rights in the United States and in foreign countries and shall give evidence and testimony
and execute and deliver to SunCom all papers requested by it in connection therewith. Xx. Xxxxxxx
hereby irrevocably appoints SunCom as Xx. Xxxxxxx’ attorney-in-fact (with a power coupled with an
interest) to execute any and all documents which may be necessary or appropriate in the securing of
such rights, including but not limited to, any copyright in Xx. Xxxxxxx’ work.
(e) No Solicitation of Employees. Xx. Xxxxxxx agrees that, both during Xx. Xxxxxxx’
employment with SunCom and for a period of one (1) year following the termination of Xx. Xxxxxxx’
employment with SunCom at any time and for any reason, Xx. Xxxxxxx will not, directly or
indirectly, on Xx. Xxxxxxx’ own behalf or on behalf of any other person or entity, hire or solicit
to hire for employment or consulting or other provision of services, any person who is actively
employed (or in the preceding six months was actively employed) by SunCom. This includes, but is
not limited to, inducing or attempting to induce, or influencing or attempting
- 4 -
to influence, any person employed by SunCom to terminate his or her employment with SunCom.
(f) No Solicitation of Customers. Xx. Xxxxxxx agrees that, both during Xx. Xxxxxxx’
employment and for a period of one (1) year following the termination of Xx. Xxxxxxx’ employment
with SunCom at any time and for any reason, Xx. Xxxxxxx will not directly or indirectly, on Xx.
Xxxxxxx’ own behalf or on behalf of any other person or entity, solicit the business of any entity
with which SunCom has an agreement, at the time of Xx. Xxxxxxx’ termination, to provide services to
such entity (a “Customer”); provided that the restrictions of this Paragraph 6(e) shall only apply
to Customers with which Xx. Xxxxxxx had personal contact, or for whom Xx. Xxxxxxx had some
responsibility in the performance of Xx. Xxxxxxx’ duties for SunCom, during Xx. Xxxxxxx’ employment
with SunCom.
7. Enforcement. Xx. Xxxxxxx acknowledges and agrees that the restrictions contained
in Section 6 are necessary to prevent the use and disclosure of confidential information and to
protect other legitimate business interests of SunCom. Xx. Xxxxxxx acknowledges that all of the
restrictions in this Section 6 are reasonable in all respects, including duration, territory and
scope of activity. Xx. Xxxxxxx acknowledges and agrees that SunCom competes with businesses
nationwide and that a nationwide restriction is therefore reasonable and necessary to protect
SunCom’s legitimate business interests. Xx. Xxxxxxx agrees that the restrictions contained in this
Section 6 shall be construed as separate agreements independent of any other provision of this
Agreement or any other agreement between Xx. Xxxxxxx and SunCom. Xx. Xxxxxxx agrees that the
existence of any claim or cause of action by Xx. Xxxxxxx against SunCom shall not constitute a
defense to the enforcement by SunCom of the covenants and restrictions in this Section 6. Xx.
Xxxxxxx agrees that the injury SunCom will suffer in the event of the breach or threatened breach
by Xx. Xxxxxxx of any clause of this Section 6 will cause SunCom irreparable injury that cannot be
adequately compensated by monetary damages alone. Therefore, Xx. Xxxxxxx agrees that SunCom,
without limiting any other legal or equitable remedies available to it, shall be entitled to obtain
equitable relief by injunction or otherwise, without the posting of any bond, from any court of
competent jurisdiction, including, without limitation, injunctive relief to prevent Xx. Xxxxxxx’
failure to comply with the terms and conditions of this Section 6. The one-year period referenced
in Section 6(a), (d) and (e) above shall be tolled on a day-for-day basis for each day during which
Xx. Xxxxxxx violates the provisions of Section 6(a), (d) and (e) in any respect, so that Xx.
Xxxxxxx is restricted from engaging in the activities prohibited by Section 6(a), (d) and (e) for
the full one-year period.
8. Notices. Any notice required or desired to be delivered under this Agreement
shall be in writing and shall be delivered personally against receipt, by courier service or by
registered mail, return receipt requested, and shall be effective upon actual receipt by the party
to which such notice shall be directed, and shall be addressed as follows (or to such other address
as the party entitled to notice shall hereafter designate in accordance with the terms hereof):
- 5 -
If to the Company, to:
SunCom Wireless Management Company, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Chairman & CEO
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Chairman & CEO
If to Executive, to:
Xx. Xxxxxx Xxxxxxx
000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
9. Applicable Law. This Agreement shall be interpreted and enforced in accordance
with the laws of the Commonwealth of Pennsylvania without regard to principles of conflicts of laws
and without regard to any rule of construction or interpretation as to which party drafted this
Agreement.
10. Consent to Jurisdiction. Each of the parties hereby consents to the exclusive
jurisdiction of any Pennsylvania state or federal court with respect to any suit, action or
proceeding relating to this Agreement or any of the transactions contemplated hereby.
11. Severability. If any clause, phrase or provision of this Agreement, or the
application thereof to any person or circumstance, shall be invalid or unenforceable under any
applicable law, this shall not affect or render invalid or unenforceable the remainder of this
Agreement.
12. Successors and Assigns. This Agreement shall be binding on Xx. Xxxxxxx and Xx.
Xxxxxxx’ heirs, administrators, representatives, executors, successors, and assigns, and shall
inure to the benefit of the SunCom Companies and their representatives, predecessors, successors
and assigns.
13. Entire Agreement. This Agreement sets forth the entire understanding of the
SunCom Companies and Xx. Xxxxxxx with regard to his employment and the Retention Bonus and
Benefits offered to Xx. Xxxxxxx and supersedes all prior agreements, arrangements, and
communications, whether oral or written, pertaining to the subject matter hereof. This Agreement
may not be modified or amended except by a written agreement signed by the parties hereto. A
waiver of any provision of this Agreement must be in writing and signed by the party making the
waiver. Any waiver by any of the SunCom Companies of a breach of any provision of this Agreement
shall not operate as, or be construed to be, a waiver of any other breach of such provision of the
Agreement. The failure of any of the SunCom Companies to insist on strict adherence to any term
of this Agreement on one or more occasions shall not be
- 6 -
considered a waiver or deprive the SunCom Company of the right thereafter to insist on strict
adherence to that term or any other term of this Agreement.
14. Voluntary Agreement. Xx. Xxxxxxx acknowledges that he has carefully read the
foregoing Agreement, that the terms are fully understood, and that he voluntarily accepts these
terms and signs the same as his own free act.
[SIGNATURES CONTAINED ON NEXT PAGE]
- 7 -
[SIGNATURE PAGE TO EMPLOYMENT AGREEMENT]
THE UNDERSIGNED, intending to be legally bound, have executed this Agreement as of the dates
indicated below.
| Executive: | ||||||||
| /s/ Xxxxxx X. Xxxxxxx | Date of Signature | 1/20/06 | ||||||
| Senior Vice President, Finance & Treasurer | ||||||||
| Employer: | ||||||||
| SunCom Wireless Management Company, Inc. | ||||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | Date of Signature | 1/27/06 | |||||||
| Chairman & Chief Executive Officer |
- 8 -
Exhibit “A”
SunCom Wireless Affiliates
SunCom Wireless Affiliates
Triton PCS Holdings, Inc.
SunCom Wireless Investment Co., L.L.C.
SunCom Wireless Affiliate Company, L.L.C.
SunCom Wireless, Inc.
Triton PCS Holdings Company, L.L.C.
SunCom Wireless International, L.L.C.
SunCom Wireless Puerto Rico Property Co., L.L.C.
SunCom Wireless Puerto Rico License Co., L.L.C.
SunCom Wireless Puerto Rico Operating Co., L.L.C.
Triton PCS Finance Company, Inc.
Triton PCS Property Company, L.L.C.
SunCom Wireless Management Company, Inc.
Triton PCS Equipment Company, L.L.C.
Triton Network Newco, L.L.C.
AWS Network Newco, L.L.C.
Triton PCS Investment Company, L.L.C.
SunCom Wireless Operating Company, L.L.C.
Affiliate License Co., L.L.C.
Triton PCS License Company, L.L.C.
Triton License Newco, L.L.C.
SunCom Wireless Investment Co., L.L.C.
SunCom Wireless Affiliate Company, L.L.C.
SunCom Wireless, Inc.
Triton PCS Holdings Company, L.L.C.
SunCom Wireless International, L.L.C.
SunCom Wireless Puerto Rico Property Co., L.L.C.
SunCom Wireless Puerto Rico License Co., L.L.C.
SunCom Wireless Puerto Rico Operating Co., L.L.C.
Triton PCS Finance Company, Inc.
Triton PCS Property Company, L.L.C.
SunCom Wireless Management Company, Inc.
Triton PCS Equipment Company, L.L.C.
Triton Network Newco, L.L.C.
AWS Network Newco, L.L.C.
Triton PCS Investment Company, L.L.C.
SunCom Wireless Operating Company, L.L.C.
Affiliate License Co., L.L.C.
Triton PCS License Company, L.L.C.
Triton License Newco, L.L.C.
Exhibit “B”
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this “Separation Agreement”) is entered into by Xxxxxx
Xxxxxxx (“Xx. Xxxxxxx”) and SunCom Wireless Management Company, Inc. (“SunCom”) on behalf of itself
and each of its respective affiliates as set forth in Exhibit “A” (collectively, the “SunCom
Affiliates”). As used herein, “SunCom Companies” shall mean SunCom and the SunCom Affiliates
collectively.
RECITALS
WHEREAS, Xx. Xxxxxxx’ employment with SunCom is terminated effective ___(“Separation
Date”);
WHEREAS, the parties hereto have agreed to the terms of such separation from employment in
accordance with the provisions of this Separation Agreement; and
NOW THEREFORE, in exchange for mutual consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:
1. Severance. In exchange for the promises made by Xx. Xxxxxxx in this Separation
Agreement and his performance of those promises, SunCom will pay Xx. Xxxxxxx up to six (6) months
of salary continuation, subject to applicable withholding (“Severance”), as long as Xx. Xxxxxxx has
not secured alternative employment. Such payments will be paid on SunCom’s regularly scheduled pay
days, the first of which to be paid on the eighth day following Xx. Xxxxxxx’ execution of this
Separation Agreement.
2. Consideration. Xx. Xxxxxxx hereby executes this Separation Agreement in exchange
for the Severance set forth in Paragraph 1. Xx. Xxxxxxx acknowledges that the Severance exceeds
any compensation he would otherwise be paid on termination of employment and that the Severance
constitutes complete and adequate consideration for his agreement to enter into this Separation
Agreement. Xx. Xxxxxxx further acknowledges and agrees that the Severance constitutes the total
amount that will be paid to him and that he shall receive no further compensation or benefits from
any of the SunCom Companies (including without limitation any further salary, bonuses, severance,
or restricted stock awards), except for the reimbursement of any business expenses incurred by him
prior to the Separation Date in accordance with SunCom’s policies for the reimbursement of business
expenses and the right to continue group health plan coverage as is provided under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (“COBRA”).
3. Release. In exchange for the commitments of the SunCom Companies provided for
herein, Xx. Xxxxxxx, on his own behalf, and on behalf of all his agents, successors, heirs, legal
representatives, all persons, corporations and other entities that might claim by, through or under
him or any of them, hereby voluntarily releases and discharges each and every SunCom Company and
their respective predecessors, successors and assigns, and the current, former and
- 2 -
future directors, officers, partners, members, stockholders, employees, attorneys and agents
of each of them, and the like, and all persons or entities acting by, through, under or in concert
with any of them, and any benefit plan maintained by any SunCom Company (or any plan administrator
of any such plan) (collectively, the “Releasees”), of and from any and all debts, obligations,
claims, demands, judgments or causes of action of any kind whatsoever, known or unknown, in tort,
contract, by statute or on any other basis, for equitable relief, compensatory, punitive or other
damages, expenses (including attorneys’ fees), reimbursements, costs or other relief of any kind,
arising on or before the date Xx. Xxxxxxx signs this Separation Agreement including but not limited
to, any and all claims, demands, rights and/or causes of action (the “Released Claims”). Xx.
Xxxxxxx acknowledges that the Released Claims shall include, without limitation, those which might
arise out of allegations relating to a claimed breach of an alleged oral or written employment
contract, or which might arise out of any other alleged restriction on any SunCom Company’s right
to terminate Xx. Xxxxxxx’ employment or duty to provide advance notice of termination, or relating
to purported employment discrimination, retaliation or civil rights violations, such as, but not
limited to, those arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e
et seq.), the Civil Rights Acts of 1866 and 1871 (42 U.S.C. Sections 1981 and 1983), the Equal Pay
Act of 1963 (29 U.S.C. Section 206(d)(1)), the Rehabilitation Act of 1973 (29 U.S.C. Sections
701-794), the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, Employee
Retirement Income Security Act, the Worker Adjustment and Retraining Notification Act (29 U.S.C. §
2101 et seq.) or any other applicable federal, state or local statute or ordinance, which Xx.
Xxxxxxx might have or claim to have on or before the date Xx. Xxxxxxx signs this Separation
Agreement, against any of the Releasees by reason of Xx. Xxxxxxx’ employment by any SunCom Company,
or the termination of said employment and all circumstances related thereto.
4. ADEA and OWBPA Release. Xx. Xxxxxxx further agrees and understands that this
Separation Agreement includes, but is not limited to, all claims under the Federal Age
Discrimination and Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq. (“ADEA”), the Older
Worker Benefit Protection Act of 1967 (“OWBPA”) and any other state or local laws concerning age
discrimination, which may have arisen prior to the date of this Separation Agreement. Xx. Xxxxxxx
acknowledges that he has been advised by SunCom that he has up to twenty-one (21) days to consider
this Separation Agreement and that he may revoke his acceptance of the same within seven (7) days
of signing. Notification of revocation of this Separation Agreement must be accomplished by
delivery of written notice of revocation to: Xxxxx Xxxxxx, Senior Vice President of Human
Resources, 0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxx 00000, before midnight on the seventh day after
the execution date of this Separation Agreement. No attempted revocation after the expiration of
such seven (7)-day period shall have any effect on the terms of this Separation Agreement.
Further, Xx. Xxxxxxx acknowledges that he is advised to consult with legal counsel of his own
choice and at his own expense to seek clarification of any of the Separation Agreement’s terms
prior to signing this Separation Agreement. The release of claims contained in this Paragraph will
not become effective until the eighth day following Xx. Xxxxxxx’ execution of and non-revocation of
this Separation Agreement (the “Effective Date”).
5. Litigation Cooperation. Xx. Xxxxxxx agrees to provide any of the SunCom Companies
with truthful and complete cooperation in litigation matters arising out of or related to Xx.
Xxxxxxx’ activities or duties while employed by any of the SunCom Companies, whether or not such
matters have commenced as of the termination of Xx. Xxxxxxx’ employment.
- 3 -
SunCom shall reimburse Xx. Xxxxxxx for all reasonable out-of-pocket expenses associated with
such Xx. Xxxxxxx cooperation in litigation.
6. Confidentiality of Terms of this Separation Agreement. The parties acknowledge
that Xx. Xxxxxxx’ preservation of the confidentiality of this Separation Agreement, as described in
this Paragraph, constitutes a material obligation of Xx. Xxxxxxx. A breach or threatened breach of
that obligation, like a breach or threatened breach by Xx. Xxxxxxx of any other term of this
Separation Agreement, shall be treated as a material breach which shall give rise to any SunCom
Company’s right to pursue its remedies under this Separation Agreement, including, without
limitation, termination and/or repayment of the Severance. Xx. Xxxxxxx agrees not to disclose or
discuss, other than with Xx. Xxxxxxx’ spouse, legal counsel and financial or tax advisers, or as
otherwise may be required by law, any details of this Separation Agreement, including without
limitation, the amount of Severance. Xx. Xxxxxxx will make a good faith effort to ensure that
his/her spouse and any such legal counsel, or financial or tax adviser will not disclose or discuss
any details of this Separation Agreement with any other person.
7. Acknowledgement of Restrictive Covenants. Xx. Xxxxxxx acknowledges that he remains
bound by the Restricted Covenants contained in his Employment Agreement dated ___, including
but non limited to, covenants regarding non-competition, non-solicitation, and confidential
information.
8. Return of Property; Intellectual Property Rights. Xx. Xxxxxxx agrees that, on or
before the Separation Date, Xx. Xxxxxxx shall return to the appropriate SunCom Company all property
owned by each such company and all property containing information relating to any such company or
in which any such company has an interest, including, for example, files, documents, data and
records (whether on paper or in tapes, disks or other machine-readable form or otherwise and
whether or not prepared by Xx. Xxxxxxx in whole or in part), office equipment, telephone calling
cards, credit cards and Xx. Xxxxxxx identification cards made available to or prepared or compiled
by Xx. Xxxxxxx (in whole or in part) during Xx. Xxxxxxx’ employment with any SunCom Company. Xx.
Xxxxxxx acknowledges that SunCom or an applicable SunCom Company is the rightful owner of any
programs, ideas, inventions, discoveries, copyright material or trademarks which Xx. Xxxxxxx may
have originated or developed, or assisted in originating or developing, during Xx. Xxxxxxx’ period
of employment with any SunCom Company or, where any such origination or development involved the
use of company time or resources, or the exercise of Xx. Xxxxxxx’ responsibilities for or on behalf
of any such SunCom Company.
10. Remedies. Xx. Xxxxxxx acknowledges that irreparable injury will result to SunCom
and the other SunCom Affiliate, and to their respective businesses, in the event of any breach or
threatened breach by Xx. Xxxxxxx of any of Xx. Xxxxxxx’ representations, covenants or commitments
under this Separation Agreement. In the event of a breach or threatened breach by Xx. Xxxxxxx of
any of the representations, covenants or commitments under this Separation Agreement, SunCom and
any affected SunCom Affiliate shall be entitled, in addition to any other remedies and damages
available, to injunctive relief to restrain the violation of such covenants by Xx. Xxxxxxx or by
any person acting for or with Xx. Xxxxxxx in any capacity whatsoever. In the event of a breach or
threatened breach of any of Xx. Xxxxxxx’ representations, covenants or commitments under this
Separation Agreement, in addition to any SunCom
- 4 -
Company’s rights to pursue injunctive relief as described above and to pursue other remedies
and to seek damages, Xx. Xxxxxxx shall forfeit the Severance, and shall have an obligation to
immediately repay any Severance previously received. As a further material inducement to the
SunCom Companies to enter into this Separation Agreement, Xx. Xxxxxxx agrees, to the extent
permitted by law, to indemnify and hold each and all of the Releasees harmless from and against any
and all loss, costs, damages or expenses, (including without limitation, attorneys’ fees and
litigation expenses) in the event it becomes necessary for any of the Releasees to defend any claim
or claims brought by Xx. Xxxxxxx which have been released by this Separation Agreement.
12. Applicable Law. This Separation Agreement shall be interpreted and enforced in
accordance with the laws of the State of Pennsylvania without regard to principles of conflicts of
laws and without regard to any rule of construction or interpretation as to which party drafted
this Separation Agreement.
13. Consent to Jurisdiction. Each of the parties hereby consents to the exclusive
jurisdiction of any Pennsylvania state or federal court with respect to any suit, action or
proceeding relating to this Separation Agreement or any of the transactions contemplated hereby.
14. Severability. If any clause, phrase or provision of this Separation Agreement, or
the application thereof to any person or circumstance, shall be invalid or unenforceable under any
applicable law, this shall not affect or render invalid or unenforceable the remainder of this
Separation Agreement.
15. Successors and Assigns. This Separation Agreement shall be binding on Xx. Xxxxxxx
and Xx. Xxxxxxx’ heirs, administrators, representatives, executors, successors, and assigns, and
shall inure to the benefit of the SunCom Companies and their representatives, predecessors,
successors and assigns.
16. Entire Separation Agreement. This Separation Agreement sets forth the entire
understanding of the SunCom Companies and Xx. Xxxxxxx and supersedes all prior agreements,
arrangements, and communications, whether oral or written, pertaining to the subject matter hereof
except for: (i) any Restrictive Stock Award entered into by Xx. Xxxxxxx; or (ii) any Non-Compete,
Non-Solicitation and Confidentiality Separation Agreement or other agreement containing any similar
sort of restrictive employment covenant (the “Restrictive Covenants”), entered into by Xx. Xxxxxxx
in connection with a restricted stock award by a SunCom Company or otherwise, to the extent that
the Restrictive Covenant(s) provide any greater protection for any SunCom Company than are provided
for in this Separation and Release Separation Agreement. This Separation Agreement may not be
modified or amended except by a written Separation Agreement signed by the parties hereto. A
waiver of any provision of this Separation Agreement must be in writing and signed by the party
making the waiver. Any waiver by any of the SunCom Companies of a breach of any provision of this
Separation Agreement shall not operate as, or be construed to be, a waiver of any other breach of
such provision of the Separation Agreement. The failure of any of the SunCom Companies to insist
on strict adherence to any term of this Separation Agreement on one or more occasions shall not be
considered a waiver or deprive the SunCom Company of the right thereafter to insist on strict
adherence to that term or any other term of this Separation Agreement.
- 5 -
STATEMENT BY XX. XXXXXXX WHO IS SIGNING BELOW:
I HAVE BEEN GIVEN A REASONABLE PERIOD TO CONSIDER THIS SEPARATION AGREEMENT BEFORE SIGNING.
I HAVE CAREFULLY READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS SEPARATION AGREEMENT AND
HAVE HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH MY PERSONAL TAX, FINANCIAL AND
LEGAL ADVISORS PRIOR TO SIGNING THIS DOCUMENT, AND I INTEND TO BE LEGALLY BOUND BY ITS
TERMS. I AM ENTERING INTO THIS SEPARATION AGREEMENT ON A KNOWING AND VOLUNTARY BASIS.
[SIGNATURES CONTAINED ON NEXT PAGE]
- 6 -
[SIGNATURE PAGE TO SEPARATION AGREEMENT AND RELEASE]
THE UNDERSIGNED, intending to be legally bound, have executed this Separation Agreement as of
the dates indicated below.
| Employee: | |||||||||||
| Date of Signature | |||||||||||
| XXXXXX X. XXXXXXX | |||||||||||
| Employer: | |||||||||||
| SunCom Wireless Management Company, Inc. | |||||||||||
| By | Date of Signature | ||||||||||
| By Xxxxx Xxxxxx, Senior Vice President of Human Resources | |||||||||||
- 7 -
Exhibit “A”
SunCom Wireless Affiliates
SunCom Wireless Affiliates
Triton PCS Holdings, Inc.
SunCom Wireless Investment Co., L.L.C.
SunCom Wireless Affiliate Company, L.L.C.
SunCom Wireless, Inc.
Triton PCS Holdings Company, L.L.C.
SunCom Wireless International, L.L.C.
SunCom Wireless Puerto Rico Property Co., L.L.C.
SunCom Wireless Puerto Rico License Co., L.L.C.
SunCom Wireless Puerto Rico Operating Co., L.L.C.
Triton PCS Finance Company, Inc.
Triton PCS Property Company, L.L.C.
SunCom Wireless Management Company, Inc.
Triton PCS Equipment Company, L.L.C.
Triton Network Newco, L.L.C.
AWS Network Newco, L.L.C.
Triton PCS Investment Company, L.L.C.
SunCom Wireless Operating Company, L.L.C.
Affiliate License Co., L.L.C.
Triton PCS License Company, L.L.C.
Triton License Newco, L.L.C.
SunCom Wireless Investment Co., L.L.C.
SunCom Wireless Affiliate Company, L.L.C.
SunCom Wireless, Inc.
Triton PCS Holdings Company, L.L.C.
SunCom Wireless International, L.L.C.
SunCom Wireless Puerto Rico Property Co., L.L.C.
SunCom Wireless Puerto Rico License Co., L.L.C.
SunCom Wireless Puerto Rico Operating Co., L.L.C.
Triton PCS Finance Company, Inc.
Triton PCS Property Company, L.L.C.
SunCom Wireless Management Company, Inc.
Triton PCS Equipment Company, L.L.C.
Triton Network Newco, L.L.C.
AWS Network Newco, L.L.C.
Triton PCS Investment Company, L.L.C.
SunCom Wireless Operating Company, L.L.C.
Affiliate License Co., L.L.C.
Triton PCS License Company, L.L.C.
Triton License Newco, L.L.C.
