EXHIBIT 10.28
EXECUTION COPY
PART-TIME EMPLOYMENT AGREEMENT
THIS PART-TIME EMPLOYMENT AGREEMENT ("AGREEMENT"), is entered into and
effective as of April 2, 2004 (the "Effective Date"), by and between VALOR
TELECOMMUNICATIONS, LLC, a Delaware limited liability company (the "Company"),
and XXXXXXX X. XXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been employed by the Company since January 18,
2000 initially as its President and Chief Operating Officer and most recently as
its Chief Executive Officer pursuant to an Employment Agreement dated January
18, 2000 (as amended by an Amendment One to Employment Agreement dated January
17, 2002, the "Existing Employment Agreement"); and,
WHEREAS, the Existing Employment Agreement provided in part: "For the
period of February 7, 2004 - February 7, 2006, Employee shall have the option to
work part time under mutually agreeable wages, terms and conditions that will be
negotiated between Employee and the Company."; and,
WHEREAS, the Company and the Employee desire to terminate the Existing
Employment Agreement and to negotiate a new Agreement that will set forth the
terms of Employee's part-time employment with the Company and its subsidiaries;
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 Term.
(a) PART-TIME EMPLOYMENT WITH THE COMPANY. The Company hereby agrees
to continue the employment of the Employee, and the Employee hereby agrees to
the continuation of his employment with the Company, for a period commencing on
the Effective Date and continuing for the period set forth in Section 2 hereof,
all upon the terms and conditions hereinafter set forth.
(c) 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 (other than the Company) or other party which is in any
way inconsistent with, or which imposes any restriction upon, the Employee's
continuation of employment hereunder with the Company, the continued employment
of the Employee by the Company or the Employee's undertakings under this
Agreement.
2. Term of Part-Time 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 March 31, 2007.
(b) The period from the Effective Date until March 31, 2007, or in the
event that the Employee's employment hereunder is earlier terminated as provided
herein or renewed or extended as provided in Section 2(c), such shorter or
longer period, is hereinafter called the "Employment Term".
(c) Upon expiration, the Employment Term shall not be subject to
automatic renewal or extension and may be extended or renewed only by written
agreement of the parties.
3. Title; Duties.
(a) During the Employment Term, the Employee shall serve on the Board of
Directors of the Company (the "Board of Directors") as its Vice-Chairman. During
the time the Employee serves on the Board of Directors, the Employee shall be
entitled to receive such director's fees and reimbursement of expenses that are
payable from time to time to non-executive members of the Board of Directors in
accordance with the Company's policies as are adopted by the Board of Directors
from time to time. In addition, during the Employment Term, the Company may, but
shall not be required to, appoint Employee to serve on the board of directors or
other equivalent governing body of any of its subsidiaries. The Employee's
Company supplied business card may refer to Employee as the Company's
"Vice-Chairman and Founder."
(b) During the Employment Term, Employee shall render such services to
the Company in connection with the Company's business, management and financial
matters as the Board of Directors or Chief Executive Officer of the Company may
request from time to time, which services shall include, but shall not be
limited to, advising and assisting the Board of Directors and management of the
Company and its affiliates on development of corporate strategy, the
identification and implementation of potential mergers, acquisitions and other
strategic transactions, regulatory matters and business development efforts
(including, but not limited to, serving as the Company's emissary at national
and regional trade or industry gatherings). It is contemplated by the Company
and the Employee that the Employee will devote at least 25% of his professional
time, efforts and attention to the duties set forth in this Section 3. Employee
may engage in any or all other professional activities so long as such
professional activities, individually or in the aggregate, do not (i) impair in
any material respect the Employee's ability to perform his duties under this
Agreement or (ii) violate the provisions of Section 9 of this Agreement.
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4. Compensation.
(a) As compensation for the performance by the Employee of the services
to be performed by the Employee hereunder during the Employment Term and subject
to compliance by Employee of his obligations under Sections 6, 9, 10 and 11
hereof, the Company shall pay the Employee a salary at the annual rate of Three
Hundred Thousand Dollars ($300,000) (said amount being hereinafter referred to
as the "Salary"). The Salary payable hereunder shall be paid on a quarterly
basis at the beginning of each quarter, and shall be subject to all applicable
withholdings for taxes and benefits costs.
5. Other Benefits.
(a) General. During the Employment Term, the Employee shall:
(i) be eligible to participate, along with his dependents, in any
medical and health plans and other employee welfare benefit plans, including
prescription drug programs and flexible spending accounts, that may be
provided by the Company for its senior executive employees and their
dependents in accordance with the provisions of any such plans, as the same
may be in effect from time to time;
(ii) be provided an office of appropriate size and location within the
Company's headquarters that is acceptable to the Company's Chief Executive
Officer and the Employee. In addition, the Employee's current secretary (or
another secretary if Employee's current secretary is no longer employed with
the Company) shall devote 25% of her time, efforts and attention to assisting
the Employee; and
(iii) be entitled to reimbursement for all reasonable and necessary
out-of-pocket general office, communication, travel, entertainment and other
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; provided, that travel, general office and communication expenses
shall not exceed $50,000 per year (the "Reimbursement Cap") unless incurrence
of expenses in excess of the Reimbursement Cap is authorized by the Company's
Chief Executive Officer or the Board of Directors. Costs associated with the
Employee's office space, secretarial support, parking at the Company's
headquarters or benefits shall not be applied against the Reimbursement Cap.
During the Employment Term, the Company will obtain for the benefit of the
Employee (i) term life insurance coverage providing $2,100,000 in death benefits
to beneficiaries designated by the Employee and (ii) long-term disability
insurance coverage providing the Employee with long-term disability benefits
equal to $180,000 payable on and after the 181st day of the Employee's
qualifying disability, provided, however, that (x) annual premiums for the
insurance coverage described in (i) and (ii) above cannot exceed $25,000 and (y)
the foregoing assumes the insurability of the Employee. In the event that the
annual premiums for the insurance coverage described in (i) and (ii) above would
exceed $25,000, then either (A) the coverage will be reduced to the extent
necessary to keep the annual premiums under $25,000 or (B) the Employee shall
pay the amount of such excess.
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6. Confidential Information. The Employee hereby covenants, agrees and
acknowledges as follows:
(a) The Employee has in the past (including during his employment with
the Company pursuant to the Existing Employment Agreement) and in the future
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; 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 and (iii) 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 in this Section 6(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) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the Companies or (z) that was in the
possession of the Employee prior to disclosure by the Companies.
(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 of any third party's request for such information, which notice shall
include the Employee's intent to disclose any Confidential Information 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, therefore, agrees that the Companies shall be entitled to seek
injunctive relief in addition to any other available rights and remedies in case
of any such breach or threatened breach by the Employee; 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 expiration or 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).
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(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 15 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.
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) expiration of the Employment Term;
(v) the Company giving written notice, at any time (including, without
limitation, following a change of control of the Company or a sale of
substantially all of the assets of the Company), to the Employee that the
Employee's Employment is being terminated, other than pursuant to clause (i),
(ii), (iii) or (iv) above; or
(vi) 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) gross negligence by the Employee in the performance of, or willful
disregard by the Employee of, his obligations under this Agreement that results
in material damage to the business of one or more of the Companies, (B) willful
failure by the Employee to obey the reasonable and lawful orders and policies of
the Board of Directors that are consistent with the provisions of this Agreement
(in the case of clause (A) and this clause (B), which gross negligence, willful
disregard or willful failure (and the consequences thereof) continue unremedied
for a period of fifteen (15) days after written notice thereof to the Employee)
or (C) conviction of a crime (or entry of a plea of no contest with respect
thereto) that results in material damage to the business of one or more of the
Companies.
(b) In the event that the Employee's Employment is terminated during the
Employment Term by the Company pursuant to clause (v) of Section 7(a) above, the
Company shall, subject to (A) Section 7(d) and (B) execution by Employee of a
release agreement in substantially the form attached hereto as Exhibit A, and in
partial consideration of Employee's
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continuing obligations hereunder after such termination, (i) pay to the
Employee, as severance pay or liquidated damages or both, the balance of any
Salary that would have been payable from the date of such termination until
March 31, 2007 (such period the "Severance Period") but for such termination,
subject to withholding (if required by law) and appropriate deductions and (ii)
shall continue to provide the Employee with life and long-term disability
insurance, subject to the limits on coverage and cost specified in the last
paragraph of Section 5, for a period from the date of such termination until the
earliest to occur of (A) the date which is twelve (12) months after such
termination, (B) March 31, 2007 and (C) the date upon which the Employee
commences participation in another insurance plan.
(c) Upon expiration of the Employment Term or termination thereof for
any reason, the Employee, subject to Section 7(d), shall be entitled to coverage
(for himself and his dependents) under the Company's health insurance plans and
other employee welfare benefit plans, including prescription drug programs and
flexible spending accounts, after such expiration or termination at the same
cost and other terms as offered by the Company to other senior executives still
employed by the Company for the remainder of the life of Employee with such
non-substantive variations that are necessary to reflect Employee's then status
as a person who is not employed or engaged by the Company;
(d) If the Employee violates any of Sections 6, 9, 10 or 11 hereof, the
Company shall no longer have any obligations to the Employee and may cease
making all payments due and owing under Section 7(a) above and cease providing
coverage under its health insurance plans to the Employee as required by Section
7(c) above.
(e) Notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law and except as set forth or
described in Sections 7(b) and 7(d) above, the Company (and its Subsidiaries and
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 for "cause" or any other reason, or
expiration or non-renewal of the Employment Term), other than such amounts, if
any, of his Salary as shall have accrued and remained unpaid as of the date of
said cessation.
(f) 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. This
Agreement may not be assigned by the Company except with the Employee's prior
written consent, provided, however, that the Company may assign this Agreement
to a direct or indirect parent of the Company ("Newco") or an affiliate of Newco
upon consummation of an initial public offering of any class of Newco's
securities without the consent of the Employee.
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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. Non-Compete. During the Employment Term and, following the
expiration or termination of the Employment Term for any reason (whether by the
Company or the Employee), during the Restriction Period (as defined below), the
Employee, in consideration of compensation to be paid to the Employee hereunder,
will not directly or indirectly (as a director, officer, executive consultant ,
manager, consultant, independent contractor, advisor or other-wise) engage in
(i) any activity with any private equity firm, investment bank or any other
entity relating to the evaluation, acquisition, or operation of any local
"telecommunications" business anywhere in the United States or (ii) competition
with, or own any interest in, manage, assist, control, perform any services for,
participate in or be connected with any business or organization which engages
in operating any local "telecommunications" business anywhere in the markets
that are served by any of the Companies at the time of determination. It is
understood that Employee may provide management consulting services, including,
but not limited to, consultation on telephone operations, network issues and
regulatory matters, directly to rural local exchange carriers (as opposed to the
types of persons described in clause (i) of the preceding sentence), either
during the Employment Term, or following its termination or expiration, so long
as such rural local exchange carriers do not compete directly with any of the
Companies in the markets that are served by any of the Companies at the time of
determination.
Nothing in this Section 9 shall 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 not more than one percent
(1%) of any other business, so long as Employee has no active participation in
such company, or any of the current activities permitted by the last sentence of
Section 3(b).
10. Non-Solicitation. During the Employment Term and, following the
expiration or termination of the Employment Term for any reason (whether by the
Company or the Employee), during the Restriction Period, in consideration of
compensation to be paid to the Employee hereunder, will not directly or
indirectly induce or attempt to induce any 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.
11. Non-Interference. During the Employment Term and, following the
expiration or termination of the Employment Term for any reason (whether by the
Company or the Employee), during the Restricted Period, the Employee, in
consideration of compensation to be paid to the Employee hereunder, 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 by him would have an
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
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(including, without limitation, make any negative or disparaging statement or
communication regarding any of the Companies either publicly or to any such
person or entity).
12. Restriction Period. The restrictions set forth in Sections 9, 10 and
11 shall initially apply (A) in case of expiration or termination of the
Employment Term for any reason (whether by the Company or the Employee) other
than by the Company pursuant to clause (v) of Section 7(a) hereof, for a period
of twelve (12) months subsequent to such expiration or termination of the
Employment Term and (B) in case of termination of the Employment Term by the
Company pursuant to clause (v) of Section 7(a) hereof, for a period that is the
longer of the Severance Period or a period of twelve (12) months subsequent to
such termination of the Employment Term. The period applicable pursuant to the
preceding sentence may be extended at the Company's option prior to the
expiration thereof by an additional twelve (12) month period by providing notice
thereof to the Employee. During such extended restriction period, subject to
continued compliance by the Employee with Sections 6, 9, 10, and 11 hereof and
in consideration of the Employee's continuing obligations, the Company shall pay
the Employee an amount equal to the Salary for such twelve (12) month period in
quarterly installments at the beginning of each quarter and provide the Employee
with life and long-term disability insurance, subject to the limits on coverage
and costs specified in the last paragraph of Section 5, for such twelve (12)
month period. The relevant restriction period pursuant to the first sentence of
this Section 12 or the second sentence of this Section 12 is referred to herein
as the "Restriction Period".
13. Certain Representations of the Employee. In connection with the
provisions of Sections 9, 10, 11, and 12 the Employee represents that his
experience, capabilities and circum-stances are such that such provisions will
not prevent him from earning a livelihood. The Employee further agrees that the
limitations set forth in Sections 9, 10, 11, and 12 (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 Sections 9, 10, 11, and 12 (and in Section 6 hereof) shall survive the
expiration or termination of this Agreement.
14. Injunctive Relief. The Employee acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of Sections
9, 10, 11, or 12 hereof would be inadequate and, therefore agrees that the
Company and any of its subsidiaries or affiliates shall be entitled to seek
injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach; 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.
15. Binding Effect. Without limiting or diminishing the effect of
Section 8 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
16. 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
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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.
17. Law Governing; Waiver of Jury Trial. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Texas, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Texas or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Texas. The parties hereto hereby waive, to the fullest extent permitted by
applicable law, any right to trial by jury with respect to any action or
proceeding arising out of or relating to this Agreement.
18. Severability. The Employee agrees that in the event that any court
of competent jurisdiction shall finally hold that any provision of Sections 6,
9, 10, 11 or 12 hereof is void or constitutes an unreasonable restriction
against the Employee, the provisions of such Sections 6, 9, 10, 11 or 12 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 Sections 6, 9, 10, 11 or
12 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.
19. 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.
20. 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. The
parties acknowledge that the Existing Employment Agreement has terminated, and
all rights, obligations and liabilities of the Company, its subsidiaries and
their respective predecessors, on the one hand, and the Employee, on the other
hand, under the Existing Employment Agreement shall be extinguished and the
Existing Employment Agreement shall be null and void. This Agreement may be
modified or amended only by an instrument in writing signed by both parties
hereto.
21. 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.
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IN WITNESS WHEREOF, the Company and the Employee have duly executed and
delivered this Agreement as of the day and year first above written.
/s/ Xxxxxxx X. Xxxx
-----------------------------
XXXXXXX X. XXXX
("Employee")
VALOR TELECOMMUNICATIONS, LLC
By: /s/ Xxxxxxx X. xxXxxxxx
-------------------------
Name:
Title:
EXHIBIT A
RELEASE AGREEMENT
In consideration of receipt of severance payments and benefits as set
forth in Section 7 of the Consulting Agreement, dated as of March 31, 2004,
between Valor Telecommunications, LLC (the "Company") and Xxxxxxx X. Xxxx (the
"Employment Agreement"), I, Xxxxxxx X. Xxxx, hereby release and discharge the
Company and each of its subsidiaries and each of their respective employees,
officers, directors, equityholders, and agents (collectively, the "Company")
from, and waive any and all claims, demands, damages, causes of action or suits
(collectively, "Claims") of any kind or nature whatsoever that I may have had or
may now have against any of them (including, without limitation, any Claims
arising out of or related to my Employment as a Employee with the Company or the
termination thereof), whether arising under contract, tort, statute or
otherwise, and whether I know of the claim or not, including, without
limitation, Claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act, the
Equal Pay for Equal Work Act, and any other applicable federal, state or local
statutes, rules, codes, or ordinances. This release does not cover my rights to
the severance payments and benefits provided in Section 7 of the Employment
Agreement subject to any restrictions set forth therein.
I have not, and shall not hereafter, institute any lawsuit of any kind
whatsoever, or file any complaint or charge, against the Company or any of its
former or present employees, officers, directors, equityholders, agents,
subsidiaries, or affiliates, and any of their successors or assigns, under any
federal, state or local statute, rule, regulation or principle of common law
growing out of events released hereunder. I shall not seek employment or
reemployment with the Company. I acknowledge that I have had at least 21 days to
review and consider this release agreement before accepting it. I have been
advised to consult with an attorney before signing this release agreement.
________________________________
Xxxxxxx X. Xxxx
Dated:________________________
Acknowledged and Agreed as of
_________, ______________:
VALOR TELECOMMUNICATIONS, LLC
By: _________________________
Name:
Title:
A-1
