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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into this date by
and between ALAMOSA PCS LLC, a Texas Limited Liability Company, having its
principal executive office located at 0000 X. Xxxx 000, Xxxxxxx, Xxxxx 00000
(the "Company"), and XXXXX XXXXXXXX, an individual residing at San Antonio,
Texas (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 hereto mutually agree as follows:
1. EMPLOYMENT; TERM; DUTIES. The Company hereby employs the Employee as
Chief Operating Officer. The term of the Employee's employment, pursuant to this
Agreement, will commence on October 1, 1998, (the "Commencement Date") and will
continue for a period of three (3) years, or the termination of this Agreement,
as described in Section 5 hereof, whichever shall occur first. 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 Board of
Managers of the Company. The Company may employ a Chief Executive Officer, and,
if so directed by the Board of Managers, Employee shall report to and perform
such duties as may be assigned by said Chief Executive Officer.
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 $175,000.00, payable semi-monthly in accordance with the
Company's payroll practices from time to time in effect. The Company
will review the Employee's salary at least once each year and may, in
its discretion, increase the Employee's salary. 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.
(b) BONUS. In addition to the Employee's base salary, for each quarter
the Employee is employed by the Company, beginning April 1, 1999, the
Employee is entitled to a Quarterly Bonus of $15,000.00 for each
calender quarter in which the milestones (the "Milestones") set forth in
the attached EXHIBIT "A", which is incorporated by this reference as if
copied at length,
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are met or exceeded. This Bonus will be paid at the end of each month.
If the Milestones are not met, Employee is entitled to a portion of the
Quarterly Bonus, calculated based on the pro rata portion of the
Milestones met. For each calender quarter in which the Exceptional
Milestones as set forth in Exhibit "A" are met or exceeded, Employee is
entitled to an additional $15,000.00 Quarterly Bonus. The bonuses
provided for in this subsection 2(b) are referred to herein,
individually and collectively, as the "Quarterly Bonus(es)."
(1) In lieu of the Quarterly Bonuses, Employee shall receive a
bonus of $5,000.00 per month (the "Monthly Bonus") for the first
six (6) months of this Agreement. The Monthly Bonus is
nonrefundable, and is not conditioned on meeting or exceeding the
Milestones.
(2) Any Quarterly Bonus after the first six (6) months of this
Agreement to which Employee is entitled to under this subsection
2(b) must be paid in full no later than forty-five (45) days after
the end of the calender quarter for which the Quarterly Bonus was
earned.
(c) EMPLOYEE STOCK OPTIONS. The Employee shall be granted stock options
in three series; the 8% Option Series, the 15% Option Series, and the
25% Option Series. Over the term of the agreement each stock option
series shall give the employee the right to purchase a 0.5% interest in
the Company, up to a total of 1.5%, at the Exercise Price at any time
after January 1, 2004 but before its expiration date on January 5, 2008.
(1) Vesting of Options. The options shall vest over three years.
The first options shall vest on the first day following the
one-year anniversary of the Commencement Date. On that day, three
stock options, one from each series, shall be vested giving the
employee the right to purchase 0.16667% of the Company with each
option. For each month of the Employee's continued employment
following the one-year anniversary, an option from each series for
the purchase of 0.013889% of the Company shall vest. This monthly
vesting shall continue until such time as the employee has options
to purchase a maximum of 1.5% of the Company, a 0.5% interest in
the Company through each series.
(2) Calculation of the Exercise Price. The Exercise Price for each
option shall increase monthly by the Monthly compounded rate as
specified for each option. The 8% Option shall have an Exercise
Price that shall increase 8% annually or a Monthly compounded rate
of 0.64340%. The 15% Option shall have an Exercise Price that shall
increase 15% annually or a Monthly compounded rate of 1.17149%. The
25% Option shall have an Exercise Price that shall increase 25%
annually or Monthly compounded rate of 1.8769%.
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(i) The Exercise Price for each option shall increase each
month. The Exercise Price shall be calculated each month by
multiplying (i.) the Exercise Price for the previous month,
times (ii.) one plus the Monthly compounded rate. For the
purposes of this calculation, the starting period for the
calculation of the Exercise Price for each option shall be
September 30, 1998, and the initial Exercise Price shall be
the product of the Committed Capital for Alamosa times the
percent interest represented by the Option. Committed Capital
for Alamosa is, initially, $48,500,000 as set forth in EXHIBIT
"A" to the Regulations of Alamosa PC LLC which is incorporated
by this reference as if copied at length. Committed Capital
may increase or decrease, and the Exercise Price shall be
adjusted to reflect any such increases or decreases.
(3) Distributions in Excess of the Distribution of Available Cash.
If during any month, the Company shall make any distributions to
the Members of the Company greater than the distribution of
Available Cash as required by subsection 5.2 of the Regulations of
Alamosa PCS LLC, which is incorporated by this reference as if
copied at length, then the Exercise Price shall be reduced. The
Exercise Price shall be reduced by an amount equal to (i.) the
difference between the actual distribution and the distribution of
Available Cash required by the Regulations, times (ii.) the percent
interest represented by the Option.
(4) Expiration. All Options shall expire January 5, 2008.
(5) Exercise of Options. The Employee must give the Company at
least sixty (60) days notice of his desire to exercise any of his
vested options. The Employee shall have two methods of exercising
his options. First, the Employee may purchase for cash an interest
in the Company by paying the exercise price of the options. This
method may be used to purchase an interest in whole or in part.
Second, the Employee may notify the Company that he wishes to
exercise the options under the Cashless Exercise Provisions
outlined below.
(i) If the Employee wishes to exercise his options under the
Cashless Exercise Provisions, he shall notify the Company in
writing at least sixty (60) days prior to the desired exercise
date. The Cashless exercise date may occur only at the end of
the annual accounting year. Within fifteen (15) days of
receiving notice, the Company shall appoint an independent
appraiser who is an expert in the valuation of wireless
telecommunication businesses to prepare an estimated value for
the Company within forty-five (45) days after his
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appointment, the Company Value. Such value shall not include
any provisions for a minority or marketability discount. If
the Employee does not agree with the Company appointed
appraiser's valuation of the business, he may hire, at his own
expense, a second independent appraiser who is an expert in
the valuation of wireless telecommunication businesses to
prepare a second valuation. If the second valuation is within
10% of the valuation prepared by the Company's appointed
appraiser, the Company Value shall be the arithmetic mean of
the two (2) valuations.
If the two (2) valuations are not within 10% of each other,
the Company and Employee will appoint and split the cost of
hiring a third independent appraiser who is an expert in the
valuation of wireless telecommunication businesses to prepare
a third valuation.
If two (2) of the fair market values determined by the
appraisers are within 10% of one another, and the third value
is not within 10% of the other fair market values, then the
Company Value will be the arithmetic mean of the two (2) more
closely aligned fair market values.
If none of the three (3) valuations are within 10% of each
other, then the Company Value will be the average of all three
(3) valuations.
(ii) Using the Company Value estimated above, the value of the
Employee's options shall be calculated. The value of an option
shall be the value of the Company, times the percent interest
represented by the option, less the Exercise Price of the
option, less any unpaid balance of Employee's loan as
described in Paragraph 7(b). The sum of all such option values
shall be the Total Option Value.
(iii) In exchange for the Employee's options, the Company
shall then issue an interest in the Company equal to the Total
Option Value, divided by the Company Value.
(6) Termination of Employment. If the Employee's employment is
terminated prior to September 30, 2001, for any reason, the Company
shall have the absolute right to purchase the Employee's stock options
at the Total Option Value described above, at any time after October 2,
2003.
3. EMPLOYEE BENEFITS. The Employee will be entitled to participate in all
incentive, retirement, profit-sharing, life, medical, disability and other
benefit plans and
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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 a minimum of three (3) weeks paid vacation per year.
Vacation time must be used during the year in which it accrues. Unused vacation
time may not be carried over into the next employment year. Unused vacation time
will not be paid to the Employee upon termination of the Employee's employment.
4. REIMBURSEMENT OF EXPENSES.
(a) 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.
(b) In addition to reimbursed expenses, Employee is entitled to $600.00
per month for a vehicle allowance plus the standard mileage rate allowed
by the Internal Revenue Service, and set forth in a Revenue Procedure
("Rev. Proc.") each year.
(1) In 1998, the standard mileage rate is 32.5(cent) per mile as
set forth in Rev. Proc. 97-58, 1997-52 I.R.B. 24, 12/27/97.
(2) Business mileage does not include commuting from Employee's
residence to the Company's headquarters.
(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 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 without cause at any time beginning on the first day
of the thirteenth (13th) month after the Commencement Date; (c) may be
terminated by the Company for cause (as defined below) at any time.
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(a) The term "disability" means a physical or mental impairment which
renders the Employee unable to carry out the Employee's duties under
this Agreement for more than ninety (90) days in any twelve-month
period.
(b) The term "cause" means (i) the Employee's willful and continued
failure substantially to perform the Employee's duties with the Company,
(ii) any material breach of this Agreement by Employee which is not
cured within thirty (30) days after notice from the Company thereof,
(iii) commission of any act of fraud, embezzlement or dishonesty by the
Employee, (iv) any act or omission which constitutes a breach of that
certain Sprint PCS Management Agreement dated July 17, 1998 ("the Sprint
Agreement"); 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.
6. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION FOR CAUSE. If the Employee's employment
is terminated for cause, (i) this Agreement terminates immediately, (ii)
except as may have vested or accrued or been paid or become payable
prior to the date of such termination or otherwise required under
applicable law, from and after such date, the Company shall be under no
obligation to pay the Employee any compensation (base salary or bonus)
pursuant to this Agreement, 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.
(b) CONSEQUENCES OF TERMINATION ON EMPLOYEE'S DEATH OR DISABILITY. If
the Employee's employment is terminated because of the Employee's death
or disability, (i) this Agreement terminates immediately, (ii) the
Employee or his legal representative or estate, as the case may be, will
be entitled to receive any base salary due to the Employee through the
last day of employment, plus any accrued but unpaid bonus, to which the
Employee may have been entitled on the last day of employment, but had
not yet 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.
(c) CONSEQUENCES OF TERMINATION FOR ANY REASON OTHER THAN FOR CAUSE OR
EMPLOYEE'S DEATH OR DISABILITY.
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(1) If the Employee's employment is terminated, prior to September
30, 2001, for any reason other than for cause or Employee's death
or disability, (i) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount (the "Termination
Payment") equal to the sum of any base salary due to the Employee
through the last day of employment, plus any accrued but unpaid
bonus, to which the Employee may have been entitled on the last day
of employment, but not yet received; (ii) in the event of
termination without cause, the Company will pay the Employee
severance pay equal to six (6) months' base salary; and (iii) the
Employee's benefits and rights under any Benefit Plan, other than
any basic health and medical 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.
(2) The Termination Payment
a. will be in addition to any salary and bonus otherwise paid
during the fiscal year in which the Termination Event occurs;
b. will be subject to offset for any advances, amounts
receivable, loans (except for the loan in subsection 7(b)
herein), including accrued interest, outstanding on the date
of the Termination Event; and
c. will not be subject to offset on account of any
remuneration paid or payable to the Employee for any
subsequent employment the Employee may obtain, whether during
or after the period during which the Termination Payment is
made, and the Employee shall have no obligation whatever to
seek any subsequent employment.
(3) For purposes of this Agreement, the term "Termination Event"
shall mean (i) the Employee's receipt of a Non-Continuation Notice
from the Company, or, (ii) termination of the Employee's employment
by the Company for any reason other than for cause or the
Employee's death or disability, or (iii) the Employee's submission
of a Non-Continuation Notice to the Company notifying the Company
of the Employee's voluntary termination of employment.
a. "Non-Continuation Notice" means written notice from the
Employee or the Company to the other that the Employee or
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the Company does not wish to continue the Employee's
employment hereunder.
7. EMPLOYEE'S OFFICE/RELOCATION. Initially, the Employee's office will be
located in the Company's offices in Lubbock, Texas. In the event the Employee
relocates to a location outside the San Antonio, Texas, area, the Company will
(a) pay or reimburse the Employee for reasonable relocation expenses;
including (i) two (2) house-hunting trips not to exceed $1,000.00 per
trip, (ii) the reasonable cost to pack, transport, and unpack Employee's
household goods and vehicles, (iii) real estate sales commission up to
six percent (6%) real estate commission paid in connection with the sale
of Employee's current residence, (iv) six (6) months' temporary housing
expense, not to exceed $1,500.00 per month, and (v) $2,500.00 to cover
incidental expenses related to the relocation; and
(b) upon Employee's providing the Company with written notice as to
Employee's intent to relocate, loan Employee $100,000.00 for a period of
fifteen (15) years at the Wall Street Journal prime rate of interest
then in effect.
(1) The loan shall be payable in equal monthly installments of
principal and interest until paid in full, said payments beginning
one (1) year after the date the loan is advanced, for a loan
amortization period of fourteen (14) years.
(2) If Employee's employment with the Company terminates, prior to
September 30, 2001, for any reason, the loan, plus any accrued
interest, is due and payable within two (2) years after the date of
termination.
(3) The loan shall be secured by Employee's Stock Options provided
in this Agreement.
8. NON-COMPETITION BY EMPLOYEE. During the term of this Agreement, the
Employee shall not, directly or indirectly, either as an Employee, Employer,
Consultant, Agent, Principal, Partner, Corporate Officer, Director or in any
other individual or representative capacity, engage or participate in any
business that is in competition in any manner whatever with the business of the
Company. For these purposes, the business of the Company is the PCS business,
including all aspects of PCS, within the Service Area as that term is defined in
the Schedule of Definitions referred to in and incorporated by reference into
the Sprint Agreement. Furthermore, upon the expiration of this Agreement or the
termination of this Agreement, prior to September 30, 2001, for any reason, the
Employee expressly agrees not to engage or participate, directly or indirectly,
either as an Employee, Employer, Consultant, Agent, Principal, Partner,
Stockholder, Corporate Officer, Director or in any other individual or
representative capacity, in any business located within and/or doing business
within the Service Area as defined above, that is in competition with the
business of the Company for a period of two (2) years. The parties agree that
the Company has a legitimate interest in protecting the business and goodwill of
the Company that has developed in the areas of the Company's business and in the
geographical areas
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of this Covenant Not To Compete as a result of the operations of the Company.
The parties agree that the Company is entitled to protection of its interests in
these areas. The parties further agree that the limitations as to time,
geographical area, and scope of activity to be restrained do not impose a
greater restraint upon Employee than is necessary to protect the goodwill or
other business interest of the Company. The parties further agree that in the
event of a violation of this Covenant Not To Compete, that the Company shall be
entitled to the recovery of damages from Employee and/or an injunction against
Employee for the breach or violation or continued breach or violation of this
Covenant. This Covenant Not To Compete shall not prohibit the Employee from
owning or purchasing any corporate securities that are regularly traded on a
recognized stock exchange or over-the-counter market.
9. CONFIDENTIAL INFORMATION OF EMPLOYEE. During the time of the Employee's
employment by the Company, the Company will provide to Employee certain
information that is confidential to the Company. This confidential information
will include, but not be limited to, client, customer and/or mailing lists as
well as marketing information as well as information containing other contacts
within the PCS and telecommunications industries. Such information may also
include information that may constitute a trade secret as to the Company. This
confidential information belongs to the Company and is vital to the Company's
business. The disclosure of this confidential information could be harmful to
the Company's business.
10. NO DISCLOSURE OF CONFIDENTIAL INFORMATION. The parties agree that the
Employer has a legitimate interest in protecting this confidential information
of the Company. The parties agree that the Company is entitled to protection of
its interests in this confidential information. Employee agrees that Employee
will not disclose to anyone or any third party any of the confidential
information referred to in the preceding paragraph. Employee acknowledges that
the disclosure of the above described confidential information belonging to the
Company 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-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.
11. EXCEPTIONS TO NON-DISCLOSURE AND NON-COMPETITION COVENANTS.
Notwithstanding anything herein to the contrary or apparently to the contrary,
the following shall not be a violation or breach of the non-disclosure of
confidential information and/or the non-competition covenants contained in this
Agreement. Employee may invest in an entity involved in the PCS or
telecommunications industries, provided that Employee is only an investor and
such investment does not in any way involve actual active control of or actual
active management of the entity. The mere investment by Employee in an entity
involved in the PCS or telecommunications industries, without any control and
without any management of the entity, will not be a violation of the
non-disclosure and non-competition covenants contained in this Agreement. While
such passive role shall not be deemed to be a breach of these covenants,
Employee shall not disclose any trade secrets of the Company to any third party
or entity.
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12. DISPUTES. The Company and Employee agree to the following in regard to
any disputes between them arising under this Agreement.
(a) MEDIATION. The Company and Employee agree to mediate any dispute
arising under this Agreement. In the event of any 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 any 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, it is agreed 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 defined herein or within the State of Texas.
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(f) ARBITRATION AWARD. If there is only one arbitrator, his or her
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 Section 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, 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:
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(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.
13. SUCCESSORS; BINDING AGREEMENT; ASSIGNMENT. The Company shall require
any successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business or assets of the Company
to expressly assume and agree in writing to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place, provided that the Employee need only be a
senior executive officer with the
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authority, powers and responsibilities set forth in Section 1 hereof with
respect to the subsidiary or subdivision which operates the business of the
Company as it exists on the date of such business combination. Failure of the
Company to obtain such express assumption and agreement at or prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Employee to compensation and benefits from the Company in the
same amount and on the same terms to which the Employee would be entitled
hereunder if the Company terminated the Employee's employment without Cause,
except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the date of termination. As
used in this Agreement, "Company" shall mean the Company as hereinbefore defined
and any successor to its business or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise. 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, provided
such acquiror expressly assumes and agrees in writing to perform this Agreement
as provided in this Section. The Employee may not assign his rights or delegate
his duties or obligations under this Agreement.
14. 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 LLC
P. O. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Chairman
With Copy to: Xxxx XxXxxxxxx, Xx.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
If to the Employee: Xxxxx Xxxxxxxx
00000 Xxxx
Xxx Xxxxxxx, Xxxxx 00000
With Copy to: Xxxx X. Xxxx
000 Xxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxx 00000
15. 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
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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 Managers 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) 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.
(d) 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.
(e) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement in
counterparts, all of which shall be considered one and the same
instrument.
(f) GOVERNING LAW AND PERFORMANCE. This Agreement shall be governed by
the laws of the State of Texas and shall be deemed to be executed in and
performance called for in Lubbock, Lubbock County, Texas.
* * * * *
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DATED this 2nd day of October, 1998, to be effective October 1, 1998.
COMPANY
ALAMOSA PCS LLC
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
XXXXX X. XXXXXXXX, Chairman
EMPLOYEE
/s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
XXXXX X. XXXXXXXX
Approved as to the mediation and arbitration provisions in Paragraph 12 above.
XXXXXXXX, XXXXXX & XXXXX, L.L.P.
By /s/ Xxxx XxXxxxxxx, Xx.
--------------------------------------
XXXX XxXXXXXXX, XX.
Attorneys for Alamosa PCS LLC
/s/ Xxxx X. Xxxx
-----------------------------------------
XXXX X. XXXX
Attorney for Employee
Attachment: Exhibit "A" - The Milestones
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