EXHIBIT 10.44
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") dated as of July
24, 2000 by and between ALAMOSA PCS HOLDINGS, INC., a Delaware corporation,
having its principal executive office located at 0000 Xxxxx Xxxx 000, Xxxxx
000, Xxxxxxx, Xxxxx 00000 (the "Company") and XXXXXXX XXXXXXXX (the
"Employee").
WITNESSETH:
WHEREAS, the parties are entering into this Agreement to set
forth and confirm their respective rights and obligations with respect to
the Employee's employment by the Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties mutually agree as follows:
1. EMPLOYMENT; TERM; DUTIES. The Company hereby employs the
Employee as Chief Technology Officer. The term of the Employee's
employment, pursuant to this Agreement, will commence on July 24, 2000 and
will continue until July 24, 2003, or the termination of this Agreement as
described in Section 5 hereof. The Employee hereby accepts such employment,
and agrees to devote his full time and effort to the business and affairs
of the Company with such duties consistent with the Employee's position as
may be assigned to him from time to time by the Chief Executive Officer of
the Company, or any other designee appointed by the CEO from time-to-time.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement shall be deemed to impose any obligation on the Company or any of
its subsidiaries to continue to employ the Employee, or on the Employee to
remain in the employ of the Company or any of its subsidiaries.
2. COMPENSATION. In consideration of all services rendered by
the Employee during the term of his employment pursuant to this Agreement,
the Company will provide the Employee with the following compensation:
(a) BASE SALARY. The Company will pay the Employee a base
salary at the annual rate of $160,000.00, payable periodically but no
less often than semi-monthly, in substantially equal amounts, in
accordance with the Company's payroll practices from time to time in
effect. The Company will review the Employee's base salary at least
once each year and may, in its discretion, increase the Employee's
base salary, and in the limited circumstances described in Section
5(c)(ii), decrease the Employee's base salary.
(b) BONUS. In addition to the Employee's base salary, the
Employee may be eligible to receive a bonus according to the
provisions of the Alamosa PCS Management Short-Term Incentive Plan
approved by the CEO, as long as the Employee is assigned to an
Eligible Job as defined by the Management Short-Term Incentive Plan.
Any bonus amount owing to the Employee shall be paid as soon as
administratively practical following the end of the applicable
performance period.
(c) CAR ALLOWANCE. In addition to the Employee's base
salary, the Employee may be eligible to receive a car allowance of
$500 a month. A car allowance is payable periodically but no less
often than monthly, in substantially equal amounts, in accordance
with the Company's payroll practices from time to time in effect.
(d) OTHER SERVICE. The Employee will receive no
additional compensation for serving the Company in any other
capacity, including on the Company's (or subsidiary's) Board of
Directors, and shall serve in any such position or similar position
if so elected or appointed.
3. EMPLOYEE BENEFITS. The Employee will be entitled to
participate in all incentive, retirement, profit-sharing, life, medical,
disability and other benefit plans and programs (collectively "Benefit
Plans") as are from time to time generally available to other executives of
the Company with comparable responsibilities, subject to the provisions of
those programs. Without limiting the generality of the foregoing, the
Company will provide the Employee with basic health and medical benefits on
the terms that such benefits are provided to other executives of the
Company with comparable responsibilities. The Employee will also be
entitled to holidays, sick leave and vacation in accordance with the
Company's policies as they may change from time to time, but in no event
shall the Employee be entitled to less than four weeks paid vacation per
year.
4. EXPENSES.
(a) Reimbursement for Expenses. The Company will promptly
reimburse the Employee, in accordance with the Company's policies and
practices in effect from time to time, for all expenses reasonably
incurred by the Employee in performance of the Employee's duties
under this Agreement, including reimbursement for miles driven by the
Employee in furtherance of the Company's business ("Business
Mileage").
(1) Reimbursement for Business Mileage shall be at
the standard mileage rate allowed by the Internal Revenue
Service ("IRS") for the taxable year and set forth in the
appropriate IRS publication.
(2) Business mileage does not include commuting
from Employee's residence to the Employee's principal place of
employment.
(3) Employee is responsible for proper
substantiation and reporting of Business Mileage and/or actual
expenses.
(4) Employee acknowledges that the payment to him
of a monthly vehicle allowance plus the standard mileage rate
may result in taxable income if the business portion of actual
automobile expenses is less than the total amount paid to
employee under this subsection, or if employee does not
maintain the records required by the Internal Revenue Code of
1986, as amended (the "Code") and the regulations thereunder.
Employee has been advised to consult a tax advisor to determine
the taxability of payments under this subsection, and the
record keeping requirements associated with the travel and
expenses associated with such payments.
5. TERMINATION. The Employee's employment by the Company: (a)
shall terminate upon the Employee's death or disability (as defined
below); (b) may be terminated by the Company for any reason other
than cause at any time; (c) may be terminated by the Company for
cause (as defined below) at any time; (d) may be terminated by the
Employee, without cause at any time upon forty-five (45) days' prior
written notice delivered by the Employee to the Company; and (e) may
be terminated by the Employee for cause (as defined below) at any
time upon forty-five (45) days' prior written notice delivered by the
Employee to the Company.
(a) The term "disability" means the determination under
the Company's Long-Term Disability Plan that the Employee is eligible
to receive a disability benefit.
(b) The term "cause" in the event of termination of the
Employee's employment by the Company means (i) any breach of Sections
7 or 8 of this Agreement by Employee which has an adverse effect on
the Company and which is not or cannot be cured within thirty (30)
days after notice from the Board of Directors of the Company thereof;
(ii) commission of any act of fraud, embezzlement or dishonesty by
the Employee that is materially and demonstrably injurious to the
Company; (iii) any act or omission by Employee which constitutes an
uncured default or breach of that certain Sprint PCS Management
Agreement dated July 17, 1998 and as it may be amended from time to
time or any other similar Sprint Management Agreement to which the
Company or any of its affiliates or subsidiaries may be a party (the
"Sprint Agreement"); (iv) the failure by the Employee to
substantially perform the Employee's duties under this Agreement, as
determined by the Company's Chief Executive Officer, and after
expiration of a cure period of fifteen (15) days following the
Employee's receipt of written notice from the Chief Executive Officer
describing such failure; or (v) any other intentional misconduct by
the Employee adversely affecting the business or affairs of the
Company in a material manner. The term "intentional misconduct by the
Employee adversely affecting the business or affairs of the Company"
shall mean such misconduct that is detrimental to the business or the
reputation of the Company as it is perceived both by the general
public and the telecommunications industry.
(c) The term "cause" in the event of termination of the
Employee's employment by the Employee means (i) the change in job
responsibilities of the Employee resulting in the demotion of the
Employee, which demotion is caused by something other than would be
cause for termination of the Employee's employment by the Company for
cause; (ii) a reduction by the Company to the Employee's annual base
salary and bonus opportunity as in effect on the date hereof or as
the same may be increased from time to time, except for
across-the-board salary and bonus opportunity reductions similarly
affecting all senior executives of the Company; and (iii) the
relocation of the Employee's principal place of employment, without
the Employee's consent, to a location more than 50 miles from the
Employee's then principal place of employment.
Upon the occurrence of grounds constituting cause under this
Section 5(c) of which the Employee has notice (including constructive
notice), the Employee shall have thirty (30) days to deliver to the
Board of Directors a written notice which specifically identifies the
grounds pursuant to which the Employee has determined that he has
cause to terminate his employment. If the Employee fails to deliver
such a written notice to the Board in a timely fashion, the Employee
shall be deemed to have consented to the change in his employment
(the "Amended Employment") and thereafter shall be prevented from
asserting that such change constitutes grounds for him to terminate
his employment for cause. Further, any subsequent determination of
whether the Employee has cause to terminate his employment shall be
based on the terms and conditions of such Amended Employment.
6. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION FOR EMPLOYEE'S DEATH OR
DISABILITY. If the Employee's employment is terminated because of the
Employee's death or disability, (i) subject to Section 6(f) hereof,
this Agreement terminates immediately; (ii) the Company will pay the
Employee, or his legal representative or estate, as the case may be,
in full satisfaction of all of its compensation (base salary and
bonus) obligations under this Agreement, an amount equal to the sum
of any base salary due to the Employee through the last day of
employment, plus any accrued bonus to which the Employee may have
been entitled on the last day of employment, but had not yet been
received; and (iii) the Employee's benefits and rights under any
Benefit Plan shall be paid, retained or forfeited in accordance with
the terms of such plan; provided, however, that Company shall have no
obligation to make any payments toward these benefits for Employee
from and after termination. Any amounts payable pursuant to this
Section 6(a) shall be paid to the Employee or his representative or
estate, as the case may be, within sixty (60) business days of the
date the Employee's employment is terminated.
(b) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR ANY
REASON OTHER THAN FOR CAUSE, DEATH OR DISABILITY OF EMPLOYEE. If the
Employee's employment is terminated by the Company for any reason
other than for cause, death or disability of Employee, (i) subject to
Section 6(f) hereof, this Agreement terminates immediately; (ii) the
Company will pay the Employee, within sixty (60) days of such
termination, in full satisfaction of all of its compensation (base
salary and bonus) obligations under this Agreement, an amount equal
to the sum of any base salary due to the Employee through the last
day of employment, plus any accrued bonus to which the Employee may
have been entitled on the last day of employment, but had not yet
been received, and a lump sum severance payment equal to one (1)
year's base salary as in effect at the date of employment termination
(with no effect given to any reduction in such annual base salary
which could give rise to termination by the Employee for cause
pursuant to Section 5(b) hereof); and (iii) the Employee's benefits
and rights under any Benefit Plan shall be paid, retained or
forfeited in accordance with the terms of such plan; provided,
however, that Employer shall have no obligation to make any payments
toward these benefits for Employee from and after termination.
(c) CONSEQUENCES OF TERMINATION FOR CAUSE BY THE COMPANY.
If the Employee's employment is terminated by the Company for cause,
(i) subject to Section 6(f) hereof, this Agreement terminates
immediately; (ii) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled
on the last day of employment, but had not yet been received; and
(iii) the Employee's benefits and rights under any Benefit Plan shall
be paid, retained or forfeited in accordance with the terms of such
plan; provided, however, that Employer shall have no obligation to
make any payments toward these benefits for Employee from and after
termination.
(d) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR ANY
REASON OTHER THAN FOR CAUSE OR EMPLOYEE'S DEATH OR DISABILITY. If,
upon forty-five (45) days' prior written notice to the Company by the
Employee, the Employee's employment is terminated by the Employee for
any reason other than for cause or Employee's death or disability,
(i) subject to Section 6(f) hereof, this Agreement terminates
immediately; (ii) the Company will pay the Employee, within sixty
(60) days of such termination, in full satisfaction of all of its
compensation (base salary and bonus) obligations under this
Agreement, an amount equal to the sum of any base salary due to the
Employee through the last day of employment, plus any accrued bonus
to which the Employee may have been entitled on the last day of
employment, but had not yet been received; and (iii) the Employee's
benefits and rights under any Benefit Plan and medical benefit plan,
shall be retained or forfeited in accordance with the terms of such
plan; provided, however, that Employer shall have no obligation to
make any payments toward these benefits for Employee from and after
termination.
(e) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR
CAUSE. If, upon forty-five (45) days' prior written notice to the
Company by the Employee, the Employee's employment is terminated by
the Employee for cause (i) subject to Section 6(f) hereof, this
Agreement terminates immediately; (ii) the Company will pay the
Employee, within sixty (60) days of such termination, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled
on the last day of employment, but had not yet been received and a
lump sum severance payment equal to one (1) year's base salary as in
effect at the date of termination (with no effect given to any
reduction in such annual base salary which could give rise to a
termination by the Employee for cause pursuant to Section 5(b)
hereof) or the unpaid balance of the annual base salary which would
have been payable to the employee through July 24, 2003, whichever
amount shall be less; and (iii) the Employee's benefits and rights
under any Benefit Plan shall be paid, retained or forfeited in
accordance with the terms of such plan; provided, however, that
Employer shall have no obligation to make any payments toward these
benefits for Employee from and after termination.
(f) PRESERVATION OF CERTAIN PROVISIONS. Notwithstanding
any provisions of this Agreement to the contrary, the provisions of
Sections 7 through 12 hereof shall survive the expiration or
termination of this Agreement as necessary to give full effect to all
of the provisions of this Agreement.
7. NON-COMPETITION/NON-SOLICITATION.
(a) During Employee's employment with the Company,
Employee shall not engage in "Competition" with any entity in the
Company Group (as defined below). For purposes of this Agreement,
Competition by Employee shall mean Employee's engaging in, or
otherwise directly or indirectly being employed by or acting as a
consultant or lender to, or being an agent, principal, owner,
partner, corporate officer, director, shareholder, member, or
investor of, or permitting his name to be used in connection with the
activities of any other business or organization anywhere in the
United States which competes with the Business of any entity in the
Company Group. For these purposes, the "Business" is establishing and
providing mobile wireless communications services, including all
aspects of the Business, within the Service Area as that term is
defined in the Schedule of Definitions referred to in and
incorporated by reference into that certain Sprint PCS Management
Agreement dated July 17, 1998 and as it may be amended from time to
time or any other similar Sprint Management Agreement to which the
Company or any of its affiliates or subsidiaries may be a party ("the
Sprint Agreement"); provided that; it shall not be a violation of
this sub-paragraph for Employee to become the registered or
beneficial owner of up to five percent (5%) of any class of the
capital stock of a competing corporation registered under the
Securities Exchange Act of 1934, as amended, provided the Employee
does not actively participate in the business of such corporation
until such time as this covenant expires. The employee does have the
right to serve on Boards of non-competing companies.
(b) For a period of two (2) years following the
termination of Employee's engagement, whether upon expiration of this
Agreement or otherwise, Employee shall not engage in Competition, as
defined above, in the Service Area or in any area in which the
Company had, as of the date of the expiration of termination of this
Agreement, a bona fide intention to begin to operate its Business;
provided that, it shall not be a violation of this sub-paragraph for
Employee to become the registered or beneficial owner of up to five
percent (5%) of any class of the capital stock of a competing
corporation registered under the Securities Exchange Act of 1934, as
amended, provided the Employee does not actively participate in the
business of such corporation until such time as this covenant
expires.
(c) For a period of two (2) years after Employee ceases
to be employed hereunder by the Company, whether upon expiration of
this Agreement or otherwise, Employee agrees that he will not,
directly or indirectly, for his benefit or for the benefit of any
other person, firm or entity, do any of the following:
(1) recruit or solicit (other than pursuant to
general, non-targeted advertisements) the employment or
services of, or hire, in any business enterprise or activity,
any person who was employed by an entity in the Company Group
upon termination of Employee's employment, or within six (6)
months prior thereto;
(2) solicit from any customer or client doing
business with an entity in the Company Group as of Employee's
termination, business of the same or a similar nature to the
business of such entity of the Company Group with such customer
or client;
(3) solicit from any potential customer of an
entity in the Company Group business of the same or a similar
nature to that which has been the subject of a written or oral
bid, offer or proposal by such entity of the Company Group, or
of substantial preparation with a view to making such a bid,
offer or proposal, within six (6) months prior to Employee's
termination; or
(4) otherwise knowingly interfere with the business
or accounts of any entity in the Company Group.
(d) Employee acknowledges that the services to be
rendered by his to the Company are of a special and unique character,
which gives this Agreement a peculiar value to the Company, the loss
of which may not be reasonably or adequately compensated for by
damages in an action at law, and that a breach or threatened breach
by his of any of the provisions contained in this Section 7 will
cause the Company irreparable injury. Employee therefore agrees that
in the event of a violation or threatened violation of any of the
provisions contained in this Section 7, the Company shall be
entitled, in addition to any other right or remedy, to a temporary,
preliminary and permanent injunction, without the necessity of
proving the inadequacy of monetary damages or the posting of any bond
or security, enjoining or restraining Employee from any such
violation or threatened violations.
(e) Employee further agrees that due to the confidential
nature of the information he will possess, the covenants set forth
herein are reasonable and necessary for the protection of the
goodwill or other business interest of the Company.
(f) Employee agrees that if a court of competent
jurisdiction determines that the length of time or any other
restriction, or portion thereof, set forth in this Section 7 is
overly restrictive and unenforceable, the court may reduce or modify
such restrictions to those which it deems reasonable and enforceable
under the circumstances, and as so reduced or modified, the parties
hereto agree that the restrictions of this Section 7 shall remain in
full force and effect. Employee further agrees that if a court of
competent jurisdiction determines that any provision of this Section
7 is invalid or against public policy, the remaining provisions of
this Section 7 and the remainder of this Agreement shall not be
affected thereby, and shall remain in full force and effect.
As used herein, "Company Group" means the Company, and any entity
that directly or indirectly controls, is controlled by, or is under common
control with, the Company, and for purposes of this definition "control"
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such entity, whether
through the ownership of voting securities, by contract or otherwise.
8. CONFIDENTIAL INFORMATION. The Employee recognizes and
acknowledges that he will have access to certain information of members of
the Company Group (as defined below) and that such information is
confidential and constitutes valuable, special and unique property of such
members of the Company Group. The parties agree that the Company has a
legitimate interest in protecting the Confidential Information, as defined
below. The parties agree that the Company is entitled to protection of its
interests in the Confidential Information. The Employee shall not at any
time, either during or subsequent to the term of this Agreement, disclose
to others, use, copy or permit to be copied, except in pursuance of his
duties for an on behalf of the Company, it successors, assigns or nominees,
any Confidential Information of any member of the Company Group (regardless
of whether developed by the Employee) without the prior written consent of
the Company. Employee acknowledges that the use or disclosure of the
Confidential Information to anyone or any third party could cause monetary
loss and damages to the Company. The parties further agree that in the
event of a violation of this covenant against non-use and non-disclosure of
Confidential Information, that the Company shall be entitled to a recovery
of damages from Employee and/or an injunction against Employee for the
breach or violation or continued breach or violation of this covenant.
The term "Confidential Information" with respect to any person
means any secret or confidential information or know-how and shall include,
but shall not be limited to, the plans, financial and operating
information, customers, supplier arrangements, contracts, costs, prices,
uses, and applications of products and services, results of investigations,
studies or experiments owned or used by such person, and all apparatus,
products, processes, compositions, samples, formulas, computer programs,
computer hardware designs, computer firmware designs, and servicing,
marketing or manufacturing methods and techniques at any time used,
developed, investigated, made or sold by such person, before or during the
term of this Agreement, that are not readily available to the public or
that are maintained as confidential by such person. The Employee shall
maintain in confidence any Confidential Information of third parties
received as a result of his employment with the Company in accordance with
the Company's obligations to such third parties and the policies
established by the Company.
9. DELIVERY OF DOCUMENTS UPON TERMINATION. The Employee shall
deliver to the Company or its designee at the termination of his employment
all correspondence, memoranda, notes, records, drawings, sketches, plans,
customer lists, product compositions, and other documents and all copies
thereof, made, composed or received by the Employee, solely or jointly with
others, that are in the Employee's possession, custody, or control at
termination and that are related in any manner to the past, present, or
anticipated business or any member of the Company Group. In this regard,
the Employee hereby grants and conveys to the Company all right, title and
interest in and to, including without limitation, the right to possess,
print, copy, and sell or otherwise dispose of, any reports, records,
papers, summaries, photographs, drawings or other documents, and writings,
and copies, abstracts or summaries thereof, that may be prepared by the
Employee or under his direction or that may come into his possession in any
way during the term of employment with the Company that relate in any
manner to the past, present or anticipated business of any member of the
Company Group.
10. DISPUTES. The Company and Employee agree to the following
in regard to any disputes between them arising under any of the provisions
of this Agreement other than the provisions of Sections 7 through 9 hereof.
Nothing in this Section 10 applies to or governs disputes arising under
Sections 7 through 9 of this Agreement.
(a) MEDIATION. The Company and Employee agree to mediate
any dispute arising under the applicable provisions of this
Agreement. In the event of any such dispute, the parties, within
thirty (30) days of a written request for mediation, shall attend, in
good faith, a mediation in order to make a good faith reasonable
effort to resolve such dispute arising under this Agreement. The
parties shall attempt, in good faith, to agree to a mediator. If
unable to so agree, the parties, in that event, will move to
arbitration as provided in this Agreement and there will be no
mediation. If this good faith mediation effort fails to resolve any
dispute arising under this Agreement, the Company and Employee agree
to arbitrate any dispute arising under this Agreement. This
arbitration shall occur only after the mediation process described
herein.
(b) ARBITRATION. The Company and Employee agree, as
concluded by the parties to this Agreement on the advice of their
counsel, and as evidenced by the signatures of the parties and of
their respective attorneys, that all questions as to rights and
obligations arising under the terms of this Agreement are subject to
arbitration and such arbitration shall be governed by the provisions
of the Texas General Arbitration Act (Texas Civil Practice and
Remedies Code Section 171.001 et seq as it may be amended from time
to time).
(c) DEMAND FOR ARBITRATION. If a dispute should arise
under this Agreement, either party may within thirty (30) days make a
demand for arbitration by filing a demand in writing with the other.
(d) APPOINTMENT OF ARBITRATORS. The parties to this
Agreement may agree on one arbitrator, but in the event that they
cannot so agree, there shall be three arbitrators, one named in
writing by each of the parties within thirty (30) days after demand
for arbitration is made, and a third to be chosen by the two so
named. The arbitrators among themselves shall appoint a presiding
arbitrator. Should either party fail to timely join in the
appointment of the arbitrators, the arbitrators shall be appointed in
accordance with the provisions of Texas Civil Practice and Remedies
Code Section 171.041.
(e) HEARING. All arbitration hearings conducted under the
terms of this Agreement, and all judicial proceedings to enforce any
of the provisions of this Agreement, shall take place in Lubbock
County, Texas. The hearing before the arbitrators of the matter to be
arbitrated shall be at the time and place within that County selected
by the arbitrators or if deemed by the arbitrators to be more
convenient for the parties or more economically feasible, may be
conducted in any city within the Service Area as referred to in
Section 7 hereof or within the State of Texas.
(f) ARBITRATION AWARD. If there is only one arbitrator,
his or his decision shall be binding and conclusive. The submission
of a dispute to the arbitrators and the rendering of their decision
shall be a condition precedent to any right of legal action on the
dispute. A judgment confirming the award of the arbitrators may be
rendered by any court having jurisdiction; or the court may vacate,
modify, or correct the award in accordance with the provisions of the
Texas General Arbitration Act (Texas Civil Practice and Remedies Code
ss. 171.087 et seq as it may be amended from time to time).
(g) COSTS OF ARBITRATION. The costs and expenses of
arbitration, including the fees of the arbitrators but excluding any
attorneys' fees, shall be advanced by the Company, but will
ultimately be borne by the losing party or in such proportions as the
arbitrators shall determine.
(h) CONDUCT OF ARBITRATION. Any arbitration
brought under the terms of this Agreement shall be conducted
in the following manner:
(1) Time Limitations. The parties agree
that the following time limitations shall govern the
arbitration proceedings conducted under the terms of
this Agreement:
(a) Any demand for arbitration must be filed
within thirty (30) days of the date the mediation is deemed
unsuccessful, or thirty (30) days after the date of the written
request for mediation, whichever is later.
(b) Each party must select an arbitrator
within thirty (30) days of receipt of notice that an
arbitration proceeding has commenced. In the event that no such
selection is made, the arbitrator selected by the other party
may conduct the arbitration proceeding without selecting any
other arbitrator.
(c) The hearing must be held within sixty
(60) days of the date on which the third arbitrator is
selected.
(d) Hearing briefs must be submitted no later
than ten (10) days after the hearing.
(e) The arbitration award must be made within
thirty (30) days of the receipt of hearing briefs.
(2) Discovery in Arbitration
Proceedings. The parties agree that discovery may be
conducted in the course of the arbitration proceeding
in accordance with the following provisions:
(a) Each party may notice no more than three
(3) depositions in total, including both witnesses adherent to
the adverse party and third-party witnesses.
(b) Each party may serve no more than
twenty-five (25) requests for admission on the other party. No
requests may be served within ten (10) days of the date of
hearing, unless the parties otherwise stipulate. All requests
for admission shall be responded to within ten (10) days of
service of the requests, unless the parties otherwise
stipulate.
(c) Each party may serve no more than fifty
(50) interrogatories on the other party. No interrogatory shall
contain subparts, or concern more than one topic or subject of
inquiry. Interrogatories may not be phrased so as to circumvent
the effect of this clause. No interrogatories may be served
within ten (10) days of the date of hearing, unless the parties
otherwise stipulate. All interrogatories shall be responded to
within ten (10) days of service of the interrogatories, unless
the parties otherwise stipulate.
(d) Each party may serve no more than ten
(10) requests for production of documents on the other party.
No request for production of documents shall contain subparts,
or seek more than one type of document. Requests for production
of documents may not be phrased so as to circumvent the effect
of this clause. Unless the parties otherwise stipulate,
requests for production of documents may not be served within
ten (10) day of the date of hearing, and all requests for
production of documents shall be responded to within ten (10)
days of service of the requests.
(e) If any party contends that the other
party has served discovery requests in a manner not permitted
by this Section, or that the other party's response to a
discovery request is unsatisfactory, the party may request the
presiding arbitrator to resolve such discovery disputes. The
presiding arbitrator shall prescribe the procedure by which
such disputes are resolved. Any discovery dispute may be
handled by telephone conference among the parties and the
presiding arbitrator.
11. SUCCESSORS. The Company may not assign this Agreement,
except in connection with, and to the acquiror of, all or substantially all
of the business or assets of the Company. The Employee may not assign his
rights or delegate his duties or obligations under this Agreement.
12. MITIGATION. Any payments made pursuant to this Agreement in
connection with a termination of employment will be subject to offset for
any advances, amounts receivable, and loans, including accrued interest
outstanding on the date of employment termination. The Employee shall not
be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise and no such payment
shall be offset or reduced by the amount of the any compensation or
benefits provided to the Employee in any subsequent employment.
13. NOTICE. Any notices or other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to
have been duly made or given when hand delivered, one (1) business day
after being transmitted by telecopier (confirmed by mail) or sent by
overnight courier against receipt, or five (5) days after being mailed by
registered or certified mail, postage prepaid, return receipt requested, to
the party to whom such communication is given at the address set forth
below, which address may be changed by notice given in accordance with this
Section:
If to the Company: Alamosa PCS Holdings, Inc.
0000 Xxxxx Xxxx 000, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
With Copy to: Xxxx XxXxxxxxx, Xx.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
XX Xxx 0000
Xxxxxxx, Xxxxx 00000
If to the Employee: Xxxxxxx Xxxxxxxx
00000 Xxxx 00xx Xxxxxxx
Xxxxxx, Xxxxxx 00000
With Copy to: [Xxxxxxxx'x Attorney]
14. MISCELLANEOUS.
(a) SEVERABILITY. If any provision of this Agreement
shall be declared to be invalid or unenforceable, in whole or in
part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.
(b) NO ORAL MODIFICATION, WAIVER OR DISCHARGE. No
provisions of this Agreement may be modified, waived or discharged
orally, but only by a waiver, modification or discharge in writing
signed by the Employee and such officer as may be designated by the
Board of Directors of the Company to execute such a waiver,
modification or discharge. No waiver by either party hereto at any
time of any breach by the other party hereto of, or failure to be in
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this
Agreement or in the documents attached as Exhibits to this Agreement.
(c) INVALID PROVISIONS. Should any portion of this
Agreement be adjudged or held to be invalid, unenforceable or void,
such holding shall not have the effect of invalidating or voiding the
remainder of this Agreement and the parties hereby agree that the
portion so held invalid, unenforceable or void shall, if possible, be
deemed amended or reduced in scope, or otherwise be stricken from
this Agreement to the extent required for the purposes of validity
and enforcement thereof.
(d) ENTIRE AGREEMENT. This Agreement and the Exhibits
attached hereto represent the entire agreement of the parties and
shall supersede any and all previous contracts, arrangements or
understandings, express or implied, between the Employee and the
Company with respect to the subject matter hereof.
(e) SECTION HEADINGS FOR CONVENIENCE ONLY. The
section headings herein are for the purpose of convenience
only and are not intended to define or limit the contents of
any section.
(f) EXECUTION IN COUNTERPARTS. The parties may
sign this Agreement in counterparts, all of which shall be
considered one and the same instrument.
(g) EACH PARTY THE DRAFTER. This Agreement and the
provisions contained in it shall not be construed or interpreted for
or against any party to this Agreement because that party drafted or
caused that party's legal representative to draft any of it
provisions.
(h) GOVERNING LAW AND PERFORMANCE. This
Agreement shall be governed by the laws of the State of Texas.
DATED this 3rd day of March, 2001 to be effective July
24, 2000.
COMPANY
ALAMOSA PCS HOLDINGS, INC.
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
Title: CEO
EMPLOYEE
/s/ Xxxxxxx Xxxxxxxx
-----------------------------------
XXXXXXX XXXXXXXX
Approved as to the mediation and arbitration provisions in Section 10
above.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
XX Xxx 0000
Xxxxxxx, Xxxxx 00000
By:
---------------------------------
Xxxx XxXxxxxxx, Xx.
Attorney for Alamosa PCS Holdings, Inc.
By:
----------------------------------
[ ]
Attorney for Employee