EXHIBIT 10.15
CONSULTING AGREEMENT
THIS AGREEMENT is entered into as of February 14, 2002, by and
between Xxxxxxx X. Xxxxxxx ("Consultant") and TSI Telecommunication Services
Inc., a Delaware corporation (the "Company"). The Company and Consultant are
sometimes collectively referred to herein as the "Parties" and individually as a
"Party".
Consultant has been an employee, officer and director of the
Company, and as such, possesses special knowledge, abilities and experience
regarding the business of the Company. The Company and TSI Telecommunication
Holdings, Inc., a Delaware corporation ("Holdings"), are parties to an Amended
and Restated Agreement of Merger, dated as of January 14, 2002, as amended (the
"Purchase Agreement"), whereby Holdings will acquire all of the outstanding
stock of the Company (the "Acquisition"). Upon the Acquisition becoming
effective, the Company desires to obtain the services of Consultant to consult
with and perform services as an independent contractor for the Company with
respect to its businesses, and Consultant desires to provide services to the
Company upon the terms and conditions set forth in this Agreement.
In consideration of the mutual covenants and agreements set
forth herein, the Parties agree as follows:
1. CONSULTING SERVICES. The Company hereby engages Consultant as an
independent contractor, and not as an employee, to render consulting
services to the Company as hereinafter provided, and Consultant hereby
accepts such engagement, for a period commencing on the Closing Date
(as defined in the Purchase Agreement) and terminating on the first
anniversary of the Closing Date (the "Consulting Period"). During the
Consulting Period Consultant shall (i) not have any authority to bind
or act on behalf of the Company, and (ii) provide such consulting
services as the Company may reasonably request in connection with the
transition to ownership by Holdings and in the creation of strategic
analyses and plans. Without in any way limiting clause (i) above,
during the Consulting Period Consultant may retain the title of
President of the Company until such time as the board of directors of
the Company deems it advisable to give Consultant a different title.
2. COMPENSATION; REIMBURSEMENT. In consideration of Consultant's
consulting services set forth in paragraph 1 above and in consideration
of the non-competition covenant set forth in paragraph 5 below, the
Company shall pay to Consultant $215,500 (the "Consulting Payment"), of
which $172,400 shall be paid on January 15, 2003 and $43,100 on
February 15, 2003. Consultant shall not be entitled any fringe
benefits, severance or perquisites from the Company. The Company shall
reimburse Consultant for all reasonable expenses incurred by him in the
course of performing his duties under this Agreement which are
consistent with the Company's policies in effect from time
to time with respect to travel, entertainment and other business
expenses, subject to the Company's requirements with respect to
reporting and documentation of such expenses.
3. CONFIDENTIAL INFORMATION. Consultant acknowledges that the information,
observations and data relating to the business of the Company and its
subsidiaries which Consultant has obtained as an employee, officer and
director of the Company or shall obtain during the course of his
association with the Company and his performance under this Agreement
are the property of the Company. Consultant agrees that he shall not
use for his own purposes or disclose to any third party any of such
information, observations or data without the prior written consent of
the Board of Directors of the Company (the "Board"), unless and to the
extent that the aforementioned matters become generally known to and
available for use by the public other than as a result of Consultant's
acts or omissions. Consultant shall deliver to the Company at the end
of the Consulting Period, or at any other time the Company may request,
all memoranda, notes, plans, records, reports, electronic data,
printouts and software and other documentation (and copies thereof)
relating to the business of the Company and its subsidiaries which
Consultant may then possess or have under his control.
4. INVENTIONS AND PATENTS. Consultant acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether
patentable or not) which relate to the actual or anticipated business,
research and development or existing or future products or services of
the Company and its subsidiaries and which are conceived, developed or
made by him during the Consulting Period ("Work Product") belong to the
Company. Consultant shall promptly disclose such Work Product to the
Company and perform all actions reasonably requested by the Company
(whether during or after the Consulting Period) to establish and
confirm such ownership (including, without limitation, assignments,
powers of attorney and other instruments).
5. NON-COMPETITION.
(a) In further consideration of the compensation to be paid to
Consultant hereunder, Consultant agrees that during period
beginning on the Closing Date and ending on the first
anniversary of the Closing Date (the "Non-Competition
Period"), he shall not, directly or indirectly, either for
himself or for any other person, partnership, corporation or
company, permit his name to be used by or participate in any
business or enterprise identical to or similar to any such
business which is engaged in by the Company or its
subsidiaries as of the date of this Agreement and which is
located anywhere in the world. For purposes of this Agreement,
the term "participate" includes any direct or indirect
interest in any enterprise, whether
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as an officer, director, employee, partner, sole proprietor,
agent, representative, independent contractor, consultant,
franchisor, franchisee, creditor, owner or otherwise; provided
that the term "participate" shall not include ownership of
less than 2% of the stock of a publicly-held corporation whose
stock is traded on a national securities exchange or in the
over-the-counter market. Consultant agrees that this covenant
is reasonable with respect to its duration, geographical area
and scope.
(b) During the Non-Competition Period, Consultant shall not
knowingly (i) induce or attempt to induce any employee of the
Company or any of its subsidiaries to leave their employ or in
any way interfere with the relationship between the Company or
any of its subsidiaries and any of their employees, (ii) hire
any person who was an employee of the Company or any
subsidiary at any time during the Consultant's employment with
the Company or (iii) induce or attempt to induce any supplier,
licensee, licensor, franchisee or other business relation of
the Company or any of its subsidiaries to cease doing business
with them or in any way interfere with the relationship
between the Company or any of its subsidiaries and any such
person or business relation.
(c) The Parties hereto agree that the Company would suffer
irreparable harm from a breach by Consultant of any of the
covenants or agreements contained herein. In the event of an
alleged or threatened breach by the Consultant of any of the
provisions of this paragraph 5, the Company or its successors
or assigns may, in addition to all other rights and remedies
existing in its favor, apply to any court of competent
jurisdiction for specific performance and/or injunctive or
other relief in order to enforce or prevent any violations of
the provisions hereof (including the extension of the
Non-Competition Period by a period equal to the length of the
violation of this paragraph 5). In the event of an alleged
breach or violation by Consultant of any of the provisions of
this paragraph 5, the Non-Competition Period described above
shall be tolled until such alleged breach or violation has
been duly cured. Consultant agrees that these restrictions are
reasonable.
(d) If, at the time of enforcement of any of the provisions of
paragraph 5, a court holds that the restrictions stated
therein are unreasonable under the circumstances then
existing, the Parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances
shall be substituted for the stated period, scope or area.
(e) Consultant agrees that the covenants made in paragraph 5(a)
shall be construed as an agreement independent of any other
provision of this Agreement and shall
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survive any order of a court of competent jurisdiction
terminating any other provision of this Agreement.
6. TAX RETURNS. Consultant shall file all tax returns and reports required
to be filed by him on the basis that Consultant is an independent
contractor, rather than an employee, as defined in Treasury Regulation
Section 31.3121(d)-1(c)(2), and Consultant shall indemnify the Company
for the amount of any employment taxes paid by the Company as the
result of Consultant not withholding employment taxes from the
Consulting Payment.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the Company and its affiliates, successors and
assigns and shall be binding upon and inure to the benefit of
Consultant and his legal representatives and assigns; provided that in
no event shall Consultant's obligations to perform future services for
the Company be delegated or transferred by Consultant without the prior
written consent of the Company (which consent may be withheld in its
sole discretion). The Company may assign or transfer its rights
hereunder to any of its affiliates or to a successor corporation in the
event of Acquisition, consolidation or transfer or sale of all or
substantially all of the assets of the Company.
8. MODIFICATION OR WAIVER. No amendment, modification or waiver of this
Agreement shall be binding or effective for any purpose unless it is
made in a writing signed by the Party against who enforcement of such
amendment, modification or waiver is sought. No course of dealing
between the Parties to this Agreement shall be deemed to affect or to
modify, amend or discharge any provision or term of this Agreement. No
delay on the part of the Company or Consultant in the exercise of any
of their respective rights or remedies shall operate as a waiver
thereof, and no single or partial exercise by the Company or Consultant
of any such right or remedy shall preclude other or further exercises
thereof. A waiver of right or remedy on any one occasion shall not be
construed as a bar to or waiver of any such right or remedy on any
other occasion.
9. GOVERNING LAW. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions
(whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the
State of Delaware.
10. SEVERABILITY. Whenever possible each provision and term of this
Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision or term of this
Agreement shall be held to be prohibited by or invalid under
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such applicable law, then such provision or term shall be ineffective
only to the extent of such prohibition or invalidity, without
invalidating or affecting in any manner whatsoever the remainder of
such provision or term or the remaining provisions or terms of this
Agreement; provided that if a court having competent jurisdiction shall
find that the covenant contained in paragraph 5(a) hereof is not
reasonable, such court shall have the power to reduce the duration
and/or geographic area and/or scope of such covenant, and the covenant
shall be enforceable in this reduced form.
11. NO STRICT CONSTRUCTION. The language used in this Agreement shall be
deemed to be the language chosen by the Parties hereto to express their
mutual intent, and no rule of strict construction shall be applied
against any Party.
12. CONSULTANT'S REPRESENTATIONS. Consultant represents and warrants to the
Company that (i) his execution, delivery and performance of this
Agreement does not and shall not conflict with, or result in the breach
of or violation of, any other agreement, instrument, order, judgment or
decree to which he is a party or by which he is bound, (ii) other than
the Separation Agreement and Release with Verizon Communications Inc.,
he is not a party to or bound by any employment agreement, noncompete
agreement or confidentiality agreement with any other person or entity
and (iii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of
his, enforceable in accordance with its terms.
13. NOTICE. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States Post Office mail, postage prepaid,
addressed to the other Party hereto at his or its address shown below:
IF TO THE COMPANY:
TSI Telecommunication Services Inc.
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx XX 00000
Attn: Xxx Xxxxxx, General Counsel
Fax: 000-000-0000
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with a copy to:
GTCR Xxxxxx Xxxxxx, LLC
0000 Xxxxx Xxxxx
Xxxxxxx XX 00000
Attn: Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Fax: 000-000-0000
and
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax: 000-000-0000
IF TO CONSULTANT:
Xxxxxxx X. Xxxxxxx
_______________________
_______________________
Fax: __________________
or at such other address as such Party may designate by ten days
advance written notice to the other Party.
14. CAPTIONS. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and shall
not be deemed to limit, characterize or in any way affect any provision
of this Agreement, and all provisions of this Agreement shall be
enforced and construed as if no caption had been used in this
Agreement.
15. COUNTERPARTS. This Agreement may be executed in counterparts, any one
of which need not contain the signatures of more than one party, but
all such counterparts taken together shall constitute one and the same
instrument.
* * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
TSI TELECOMMUNICATION SERVICES INC.
By: /s/ G. Xxxxxx Xxxxx
Its: G. Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
XXXXXXX X. XXXXXXX
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