Exhibit 10.22.2
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AMENDMENT
TO
AGREEMENT OF EMPLOYMENT
This AMENDMENT TO AGREEMENT OF EMPLOYMENT (this "Amendment"), dated as of
December 19, 2001, is intended to modify the Agreement of Employment, dated as
of April 27, 2001 (the "Agreement of Employment"), among Independent Wireless
One Corporation, a Delaware corporation ("IWO"), IWO Holdings, Inc., a Delaware
corporation ("Holdings" and together with IWO, the "Corporation") and Xxxxxxx X.
Xxxxxx (the "Employee").
RECITALS
WHEREAS, the Corporation and the Employee desire to amend the Agreement of
Employment in the manner set forth below.
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the parties hereto agree as follows:
Section 1. Effective immediately prior to and subject to the consummation
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of a Saints Merger (as defined in Section 2 hereof):
(a) Section 7(b)(iii) of the Agreement of Employment is hereby amended by
replacing the last sentence thereof with the following sentence:
"In the event that this Agreement is terminated pursuant to this
subparagraph (iii), Employee shall be entitled to payment on the
Effective Termination Date of an amount equal to: (A)(I) if the
Effective Termination Date occurs during the period from the Effective
Date until the later of the date occurring 90 days after a Saints
Merger and July 31, 2002, two times the basic salary then in effect
pursuant to paragraph 3(a); (II) if the Effective Termination Date
occurs during the period from the later of the date occurring 90 days
after a Saints Merger and July 31, 2002 until the date occurring at
the end of the second 12 months of employment, the basic salary due
pursuant to paragraph 3(a) to accrue during the 12 months following
the Effective Termination Date and (III) if the Effective Termination
Date occurs after the second 12 months of employment, the basic salary
due pursuant to paragraph 3(a) to accrue during the remainder of the
initial term of this Agreement; plus (B) such cash bonus compensation
prorated to the Effective Termination Date otherwise due Employee
pursuant to paragraph 3(b); and (C) the benefits to be paid to
Employee pursuant to paragraph 3(c), 3(d) and 3(e) prorated to the
Effective Termination Date."
(b) Section 7(d) of the Agreement of Employment is hereby amended by
inserting the following sentence after the last sentence thereof:
"Notwithstanding the foregoing, in the event Employee gives his notice
to terminate at any time on or after the later of the date occurring
90 days after a Saints Merger and July 31, 2002 and prior to the
expiration of the Initial Term, Employee shall be entitled to payment
within five days of the date Employee gives such notice to terminate
(the "Effective Notice Date") of an amount equal to (A) two times the
basic salary then in effect pursuant to paragraph 3(a); (B) such cash
bonus compensation prorated to the Effective Notice Date otherwise due
Employee pursuant to paragraph 3(b); and (C) the benefits to be paid
to Employee pursuant to paragraph 3(c), 3(d) and 3(e) prorated to the
Effective Notice Date.
Section 2. "Saints Merger" means a transaction that (i) results in (x) the
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merger, consolidation or amalgamation or other business combination of Holdings
with or into the entity referred to by Holdings as "Saints" or a wholly-owned
subsidiary of Saints or (y) the sale, transfer, assignment, lease, conveyance or
other disposition, directly or indirectly, of all or substantially all the
assets of Holdings and its subsidiaries, considered as a whole, to Saints and
(ii) closes prior to the date occurring 181 days after the signing of a
definitive agreement for such transaction.
Section 3. This Amendment shall not be effective unless shareholder
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approval meeting the requirements of Section 280G(b)(5) of the Internal Revenue
Code of 1986, as amended, is obtained.
Section 4.
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(a) This Amendment may be executed in two or more counterparts, each of
which will be deemed an original but which together will constitute one and the
same instrument. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Amendment.
(b) All references to Section in this Amendment refer to Sections of this
Amendment, unless otherwise expressly provided for.
(c) All other provisions of the Agreement of Employment not amended hereby
will remain in full force and effect.
[signature page follows]
2
IN WITNESS WHEREOF, IWO and Holdings have caused this Amendment to be
signed by their respective officers hereunto duly authorized, and the Employee
has hereunto set his hand, effective as of the day and year first above written.
INDEPENDENT WIRELESS ONE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
IWO HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
