First Amendment to Employment Agreement for Xxxxxx X. Xxxxxx
This First Amendment to Employment Agreement ("Amendment") is made,
entered into, and is effective as of this 10th day of December, 1997, between
360 Communications Company, a Delaware corporation (the "Company"), and Xxxxxx
X. Xxxxxx ("Executive").
WHEREAS, the Company and Executive have entered into that certain
Employment Agreement dated March 9, 1996 (the "Agreement"); and
WHEREAS, the Company and Executive have reached agreement concerning
the modification of certain terms and conditions of Executive's continued
employment and wish to formalize that agreement;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties set forth in this Amendment, and of
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
I.
Section 6.5 of the Agreement is amended by (A) deleting the second
sentence of the first paragraph of such Section, (B) deleting from clause (ii)
of the second paragraph of such Section the phrase "and which act or inaction is
not remedied within fifteen (15) business days of Executive's receipt of written
notice from the Company which describes the act or inaction", and (C) adding a
new final paragraph to such Section to read as follows:
A termination of Executive's employment shall not be deemed to
be for Cause unless each of the following conditions is satisfied:
(v) Written notice is provided to Executive not less
than 15 days prior to the date of termination setting forth
the Company's intention to consider terminating Executive,
including a statement of the intended date of termination and
a detailed description of the specific facts that the Company
believes to constitute Cause;
(w) None of the acts or omissions of Executive which
the Company believes to constitute Cause shall have occurred
more than 12 months before the earliest date on which any
member of the Board who is not a party to the act or omission,
knew or should have known of such act or omission;
(x) Executive is offered an opportunity to respond to
such statement by appearing in person, together with
Executive's legal counsel, before the Board prior to the date
of termination;
(y) By the affirmative vote of at least 75% of the
non-employee members of the Board, the Board determines that
the specified actions of Executive constituted Cause and that
Executive's employment should accordingly be terminated for
Cause; and
(z) The Company provides Executive a copy of the
Board's written determination setting forth in full
specificity the basis of such termination for Cause.
By determination of the Board, the Company may suspend Executive from
his duties for a period of up to 30 days with full pay and benefits
hereunder during the period of time in which the Board is making a
determination as to whether to terminate Executive for Cause. Any
purported termination for Cause by the Company which does not satisfy
each substantive and procedural requirement of this definition shall be
treated for all purposes under this Agreement as a termination by the
Company without Cause.
II.
Section 7.4 of the Agreement is amended by (A) deleting from clause (c)
of the first paragraph of such Section the following phrase:
; provided, however, that for the purposes of this Paragraph the votes
of all Section 16 Persons shall be disregarded in determining whether
stockholder approval has been obtained
(B) deleting from the second paragraph of such Section all references to
"Section 16 Person" and substituting therefor the word "person", and (C)
deleting from the third paragraph of such Section the definition of "Section 16
Person."
III.
Section 9.1 of the Agreement is amended by adding the following before
the period at the end of the third paragraph of such Section:
-2-
, whether or not Executive prevails in such litigation or arbitration.
The Company shall pay (or reimburse Executive for) such fees and
expenses on a monthly basis within 10 days after Executive's submission
of a written request for payment or reimbursement, as applicable,
together with reasonable evidence that the fees and expenses were
incurred. If Executive does not prevail (after exhaustion of all
available judicial or arbitral remedies, as applicable), and a court of
competent jurisdiction decides that Executive had no reasonable basis
for bringing an action or arbitration hereunder or lacked good faith in
doing so, no further reimbursement for legal fees and expenses shall be
due to Executive, and Executive shall repay the Company for any amounts
previously paid by it hereunder pursuant to this Section 9.1.
V.
Except as amended herein, the Agreement remains in full force and
effect.
IN WITNESS WHEREOF, Executive and the Company have executed this
Amendment as of the date first written above.
ATTEST: 360 COMMUNICATIONS COMPANY
By: By:
Corporate Secretary Chairman of the Board of Directors
EXECUTIVE:
Xxxxxx X. Xxxxxx
