EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") has been executed this
7th day of March, 2005 (the "Commencement Date") by and between SUNCOM WIRELESS
MANAGEMENT COMPANY, INC., a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, the Company, a Delaware corporation ("SunCom"), is engaged in
the business of providing wireless telecommunication services in the
southeastern United States (the "Business"); and
WHEREAS, from March 23, 1998 through March 31, 2004 Executive had been
employed by the Company on an "at-will" basis and served as a member of the
executive management group of the Company; and
WHEREAS, Executive was promoted to the position of Executive Vice
President, Operations of the Company in April 2004, and the parties wish to
memorialize their mutual agreements and understandings with respect to
Executive's promotion and associated obligations, compensation and incentives;
and
WHEREAS, the Company and Executive have agreed to enter into this
Agreement to set forth the terms and conditions of Executive's continued
employment with the Company from and after the Commencement Date.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Employment.
(a) Agreement to Employ. Upon the terms and subject to the
conditions of this Agreement, the Company hereby employs Executive, and
Executive hereby accepts employment by the Company. From and after the
Commencement Date, the Company's employment of Executive shall no longer be on
an "at will" basis, but rather it shall be governed by the terms of this
Agreement.
(b) Employment Period. The initial term (the "Initial Term")
of Executive's employment shall commence on the Commencement Date and continue
until February 3, 2006 (the "Expiration Date"). Unless this Agreement shall have
been earlier terminated in accordance with the terms of Paragraph 5(a), the term
of this Agreement will, commencing on the Expiration Date, be extended
automatically for successive one (1) year terms unless either party elects to
terminate this Agreement by providing written notice to the other party at least
sixty (60) days prior to the expiration of the Initial Term or any renewal term
of this Agreement. As used herein, the term "Employment Period" shall mean the
Initial Term plus any renewal terms as provided above.
2. Position and Duties. During the Employment Period, Executive shall
serve as the Executive Vice President, Operations of the Company and each other
member of the Triton PCS Group and be responsible for the duties set forth on
Schedule I, reporting directly to the Chief Executive Officer of the Company.
During the Employment Period, except as set forth herein, Executive shall devote
his entire business time to the services required of him hereunder, except for
vacation time and reasonable periods of absence due to sickness, personal injury
or other disability. Nothing contained herein shall preclude Executive from
serving on the board (or comparable governing body) of, or working for, any
charitable or community organization, so long as such activities do not
interfere in any material respect with the performance of Executive's duties
hereunder.
3. Compensation.
(a) Base Salary. As of the Commencement Date, the Company
shall pay to Executive an annual salary of $220,000. Thereafter, the
Compensation Committee of the Board of Directors of Triton (the "Committee")
shall review Executive's base salary and may, in its discretion, increase (but
not decrease) such base salary as it deems appropriate. Executive's annual base
salary payable hereunder, as it may be increased from time to time, is referred
to herein as "Base Salary". The Company shall pay Executive his Base Salary in
equal bi-weekly installments or in such other installments as the Company pays
other similarly situated senior officers of the Company.
(b) Annual Bonus. For each calendar year or part thereof
during the Employment Period, Executive shall be eligible to receive an annual
performance-based bonus in an amount and in the manner determined pursuant to
Schedule II. Any bonuses payable under this Paragraph 3(b) shall be paid to
Executive at the same time as bonuses are paid to other executive officers of
the Company, but in no event later than ninety (90) days after the close of the
Company's fiscal year for which the bonus is payable.
4. Benefits, Perquisites and Expenses.
(a) Benefits Plans. During the Employment Period, Executive
shall be eligible to participate in any benefit plan sponsored or maintained by
the Company for the benefit of its group of senior officers, including, without
limitation, any group life, Flexible Spending Account, medical, disability
insurance or similar plan or program of the Company, whether now existing or
established hereafter, to the extent that Executive is eligible to participate
in any such plan under the generally applicable provisions thereof.
(b) Perquisites. Executive shall be entitled to up to five (5)
weeks paid vacation annually in accordance with the Company's policies and
practices. Executive shall also be entitled to receive such perquisites as are
generally provided to other senior officers of the Company in accordance with
the policies and practices of the Company, including tax advisory, preparation
and related services from Triton's independent accountants; provided that the
cost to the Company in connection therewith shall not exceed $5,000 per annum.
(c) Business Expenses. The Company shall pay or reimburse
Executive for all reasonable expenses incurred or paid by Executive during the
Employment Period in the performance of Executive's duties hereunder; provided
Executive shall account for and substantiate all such expenses in accordance
with the Company's policies for reimbursement of the expenses of its senior
officers.
(d) Indemnification. The Company shall, to the maximum extent
permitted by applicable law, its certificate of incorporation or its bylaws,
indemnify Executive and hold Executive harmless against claims, judgments,
fines, amounts paid in settlement, and reasonable expenses, including reasonable
attorney's fees as incurred by Executive in connection with the defense of any
claim, action or proceeding in which he is a party by reason of his position
with any member of the Triton PCS Group; provided such liability does not arise
as a result of Executive's willful misconduct and/or gross negligence. Executive
shall notify the Company promptly upon learning of any claim, action or
proceeding for which Executive intends to assert his right to indemnification
under this Paragraph 4(d), and the Company shall have the right to control the
defense of any such claim, action or proceeding on behalf of Executive,
including any decision regarding the terms (if any) of settlement of such claim,
action or proceeding; provided that unless otherwise agreed to by Executive, any
such settlement shall include statements that Executive does not admit any
wrongdoing and the Company does not admit any wrongdoing on the part of
Executive. The Company shall not agree to any settlement of a claim, action or
proceeding for which it is indemnifying Executive until it first has informed
and consulted with Executive regarding the terms of such settlement, but the
Company shall not need the consent of Executive to such settlement (so long as
the settlement complies with the immediately preceding sentence). The
indemnification obligation of the Company in this paragraph shall survive any
termination of this Agreement.
(e) Directors' and Officers' Liability Insurance. Executive
shall be covered by any directors' and officers' liability insurance coverage
maintained by any member of the Triton PCS Group.
5. Termination of Employment.
(a) Early Termination of the Employment Period. This
Agreement may be terminated in any of the following manners:
(i) Executive may voluntarily terminate employment
with the Company at any time at the sole discretion of Executive upon sixty (60)
days' prior written notice to the Company (a "Voluntary Termination").
(ii) Executive may, upon written notice to the
Company, terminate employment with the Company immediately at any time for
"Good Reason" (as defined in Paragraph 5(e)), it being agreed that any such
termination, although effected by Executive, shall not constitute a Voluntary
Termination.
(iii) Executive's employment may, upon written notice
to Executive, be terminated by the Company at any time without Cause (as defined
in Paragraph 5(d)) at the sole discretion of the Company ("Without Cause"). The
Company shall give Executive sixty (60) days' prior written notice if Executive
is being terminated Without Cause.
(iv) Executive's employment may be terminated by the
Company at any time for Cause (as defined in Paragraph 5(d)).
(v) This Agreement shall terminate automatically upon
Executive's death.
(vi) The Company may, upon written notice to
Executive, terminate this Agreement upon Executive's Disability. As used herein,
the term "Disability" shall mean a medical determination that Executive suffers
from illness or other physical or mental impairment that prevents Executive from
substantially performing his duties for a period of sixteen (16) consecutive
weeks or longer during the Employment Period. The determination of Executive's
Disability shall be made by the Board of Directors of the Company. Executive
shall cooperate fully with any physician or health care professional (the
"Doctor") chosen by the Board of Directors, in its sole discretion, to review
Executive's medical condition. Executive shall cooperate with the Doctor by,
among other things, executing any necessary releases to grant the Doctor full
access to any and all of Executive's medical records, authorizing or requiring
physicians and other healthcare professionals who have treated or dealt with
Executive to consult with the Doctor and submitting to such physical
examinations or testing as may be requested by the Doctor.
(b) Benefits Payable Upon Termination.
(i) Following the end of the Employment Period
pursuant to any manner described in Paragraph 5(a), the Company shall pay to
Executive (or, in the event of his death, his estate): (A) any Base Salary
earned, but unpaid, for services rendered to the Company on or prior to the date
of Executive's termination of employment, and (B) amounts which are vested or
which Executive is otherwise entitled to receive under the terms of or in
accordance with any plan, policy, practice or program of, or any contract or
agreement with, the Company or any other member of the Triton PCS Group.
Following the end of the Employment Period pursuant to any manner described in
Paragraphs 5(a)(ii), (iii), (v) or (vi), the Company shall pay to Executive (or,
in the event of his death, his estate) any annual bonus that would be earned on
the next anniversary date of this Agreement prorated for that portion of the
year during which Executive was employed by the Company.
(ii) If termination occurs pursuant to any manner
described in Paragraphs 5(a)(ii), (iii) or (vi) or by reason of the Company's
non-renewal of the Employment Period as provided in Paragraph 1(b), Executive
(or, in the event of his death, his estate) shall be entitled to receive, in
addition to the benefits set forth in Paragraph 5(b)(i) hereof, a severance
award equal to the amount of Executive's then current Base Salary, payable over
a 12-month period.
(iii) If termination occurs pursuant to any manner
described in Paragraphs 5(a)(ii), (iii), (v) or (vi), that portion of any
unvested shares of Triton owned by Executive (and that are subject to the terms
of a restricted stock award letter agreement or comparable agreement) on such
date that would have vested on the next anniversary date of any restricted stock
award within twelve (12) months following the termination date shall vest
immediately upon such termination.
(c) Timing of Payments.
(i) Amounts payable pursuant to Paragraph 5(b)(i)(A),
will be paid in a single lump sum as soon as practicable, but in no event more
than 10 business days, following the end of the Employment Period.
(ii) Vested benefits referred to in Paragraph
5(b)(i)(B) shall be payable in accordance with the terms of the plan, policy,
practice, program, contract or agreement under which such benefits have accrued.
(iii) Amounts payable pursuant to Paragraph
5(b)(ii)(A) will be paid according to the then current payroll schedule during
such 12-month period.
(d) Definition of Cause. For purposes of this Agreement,
"Cause" shall mean:
(i) fraud against the Company;
(ii) willful malfeasance or gross misconduct in
connection with Executive's employment hereunder which has materially adversely
affected the Company as determined by (A) a majority vote of the Board of
Directors inclusive of the Chief Executive Officer or (B) six (6) out of seven
(7) in the absence of the Chief Executive Officer;
(iii) material failure to perform Executive's duties
for the Company;
(iv) any refusal to implement or undertake the
directives of the Board of Directors of the Company or the Chief Executive
Officer;
(v) engaging in conduct that causes material injury,
monetary or otherwise, to the Company;
(vi) engaging in conduct that reflects adversely on
the Company or affects the Executive's ability to perform his duties hereunder;
(vii) arrest for, indictment for, or being formally
charged with, the commission of a felony or commission of a crime, whether or
not a felony, involving Executive's duties for the Company or that may reflect
unfavorably on the Company or bring Executive into public disrepute or scandal;
(viii) violation of federal, state or local tax laws;
(ix) dependence on alcohol or drugs without the
supervision of a physician or the illegal use, possession or sale of drugs;
(x) theft, misappropriation, embezzlement or
conversion of the assets or opportunities of the Company;
(xi) a material breach of the terms, covenants or
representations of this Agreement; or
(xii) a material violation of Company policies.
(e) Definition of Good Reason. For purposes of this Agreement,
"Good Reason" means any of the following:
(i) Executive is demoted or removed from any of his
positions or offices other than in accordance with the terms of this Agreement;
or
(ii) there is a material diminishment of Executive's
responsibilities, duties or status, which diminishment is not rescinded within
thirty (30) days after the date of receipt by the Board of Directors of Triton
from Executive of his written notice referring to this provision and describing
such diminishment; or
(iii) the Company fails to pay or provide when due
(or there is a reduction in) Executive's Base Salary, annual bonus or benefits,
which failure is not cured (or which reduction is not corrected) within ten (10)
days after the receipt by the Board of Directors of Triton from Executive of his
written notice referring to this provision and describing such failure (or
reduction); or
(iv) Triton or the Company relocates its principal
offices to a location more than 30 miles from their principal offices in Berwyn,
Pennsylvania; or
(v) any purported termination by the Company of
Executive for Cause for any reason other than as set forth in Paragraph 5(d); or
(vi) a "Change of Control" (as hereinafter defined)
occurs; provided, however, that if a Change of Control shall exist as a result
of the circumstances set forth in clause (A) of the definition thereof,
Executive agrees that he will, for a period of time equal to the greater of (x)
one year after the date of the occurrence of such Change of Control and (y) the
balance of time remaining until the Expiration Date (such greater period of time
being referred to herein as the "Change of Control Period"), defer his right to
terminate this Agreement pursuant to Paragraph 5(a)(ii) and continue his
employment hereunder on the terms and subject to the conditions contained in
this Agreement; provided, further, however, that upon such subsequent
termination of this Agreement by Executive after the expiration of the Change of
Control Period by Executive for Good Reason or by the Company Without Cause, the
date of any such termination of this Agreement shall be deemed to be the date of
the occurrence of the Change of Control for purposes of benefits to which
Executive is entitled pursuant to Paragraph 5(b); or
(vii) in the event that the employment by the Company
of Xxxxxxx Xxxxxxxx has been terminated during the Executive's Employment
Period; provided that Executive gives the Company not less than sixty (60) days'
prior written notice of Executive's termination on such grounds.
(f) Definition of Change of Control. For purposes of this
Agreement, a "Change of Control" shall mean any transaction or event, or series
of transactions or events, whether voluntary or involuntary, that results in, or
as a consequence of which, any of the following events shall occur: (A) any
individual, corporation, partnership, limited liability company, association,
joint stock company, governmental authority, business trust or other legal
entity (a "Person") shall acquire, directly or indirectly, Beneficial Ownership
(as defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of
more than 50% of the voting stock of Triton except in connection with any
initial public offering of Triton's equity securities, (B) any sale of all or
substantially all of the assets of Triton, or (C) persons constituting the Board
of Directors of Triton immediately prior to the initiation of a proxy contest
ceasing to constitute a majority of the Board of Directors of Triton upon the
conclusion of such proxy contest.
6. Restrictive Covenants.
(a) Non-Competition. During Executive's employment with the
Company and for a period of two (2) years following the termination of
Executive's employment with the Company at any time and for any reason,
Executive shall not, on Executive's own behalf or on behalf of others, directly
or indirectly (whether as an employee, consultant, investor, partner, sole
proprietor or otherwise), be employed by, perform any services for, or hold any
ownership interest in any business engaged in the business of selling personal
communications services or personal communications handsets and accessories in
the Territory (as such term is defined in Triton's First Amended and Restated
Stockholders' Agreement dated as of October 27, 1999, as amended) in which the
Company is doing business, or in which the Company has established plans to do
business as of the date of the termination of Executive's employment with the
Company. The above notwithstanding, the ownership, for investment purposes, of
up to one percent (1%) of the total outstanding equity securities of a publicly
traded company, shall not be considered a violation of this Paragraph 6(a).
(b) Confidentiality. Executive further agrees that both during
Executive's employment with the Company and thereafter Executive will not
disclose to any third party or use in any way (except in performing Executive's
duties while employed by the Company in furtherance of the best interests of the
Company) any confidential information, business secrets, or business opportunity
of the Company, including without limitation, drawings, designs, blueprints,
plans, marketing, advertising and promotional ideas and strategies, marketing
surveys and analyses, technology, budgets, business plans, customer or supplier
lists, research or financial, purchasing, planning, employment or personnel data
or information. Immediately upon termination of Executive's employment or at any
other time upon the Company's request, Executive will return to the Company all
memoranda, notes and data, and computer software and hardware, records or other
documents compiled by Executive or made available to Executive during
Executive's employment with the Company concerning the business of the Company,
all other confidential information and all personal property of the Company,
including without limitation, all drawings, designs, blueprints, plans, files,
records, documents, lists, equipment, supplies, promotional materials, keys,
phone or credit cards and similar items and all copies thereof or extracts
therefrom.
(c) Intangible Property. Executive will not at any time during
or after Executive's employment with the Company have or claim any right, title
or interest in any trade name, trademark, patent, copyright, work for hire or
other similar rights belonging to or used by the Company and shall not have or
claim any right, title or interest in any material or matter of any sort
prepared for or used in connection with the business or promotion of the
Company, whatever Executive's involvement with such matters may have been, and
whether procured, produced, prepared, or published in whole or in part by
Executive, it being the intention of the parties that Executive shall and hereby
does, recognize that the Company now has and shall hereafter have and retain the
sole and exclusive rights in any and all such trade names, trademarks, patents,
copyrights (all Executive's work in this regard being a work for hire for the
Company under the copyright laws of the United States), material and matter as
described above. If any work created by Executive is not a work for hire under
the copyright laws of the United States, then Executive hereby assigns to the
Company all rights, title and interests in each such work (including, but not
limited to, copyright rights). Executive shall cooperate fully with the Company
during Executive's employment and thereafter in the securing of trade name,
trademark, patent or copyright protection or other similar rights in the United
States and in foreign countries and shall give evidence and testimony and
execute and deliver to the Company all papers requested by it in connection
therewith. Executive hereby irrevocably appoints the Company as Executive's
attorney-in-fact (with a power coupled with an interest) to execute any and all
documents which may be necessary or appropriate in the securing of such rights,
including but not limited to, any copyright in Executive's work.
(d) No Solicitation of Employees. Executive agrees that, both
during Executive's employment with the Company and for a period of two (2) years
following the termination of Executive's employment with the Company at any time
and for any reason, Executive will not, directly or indirectly, on Executive's
own behalf or on behalf of any other person or entity, hire or solicit to hire
for employment or consulting or other provision of services, any person who is
actively employed (or in the preceding six months was actively employed) by the
Company. This includes, but is not limited to, inducing or attempting to induce,
or influencing or attempting to influence, any person employed by the Company to
terminate his or her employment with the Company.
(e) No Solicitation of Customers. Executive agrees that, both
during Executive's employment and for a period of two (2) years following the
termination of Executive's employment with the Company at any time and for any
reason, Executive will not directly or indirectly, on Executive's own behalf or
on behalf of any other person or entity, solicit the business of any entity with
which the Company has an agreement, at the time of Executive's termination, to
provide services to such entity (a "Customer"); provided that the restrictions
of this Paragraph 6(e) shall only apply to Customers with which Executive had
personal contact, or for whom Executive had some responsibility in the
performance of Executive's duties for the Company, during Executive's employment
with the Company.
(f) Enforcement. Executive acknowledges and agrees that the
restrictions contained in this Paragraph 6 are necessary to prevent the use and
disclosure of confidential information and to protect other legitimate business
interests of the Company. Executive acknowledges that all of the restrictions in
this Paragraph 6 are reasonable in all respects, including duration, territory
and scope of activity. Executive acknowledges and agrees that the Company
competes with businesses nationwide and that a nationwide restriction is
therefore reasonable and necessary to protect the Company's legitimate business
interests. Executive agrees that the restrictions contained in this Paragraph 6
shall be construed as separate agreements independent of any other provision of
this Agreement or any other agreement between Executive and the Company.
Executive agrees that the existence of any claim or cause of action by Executive
against the Company shall not constitute a defense to the enforcement by the
Company of the covenants and restrictions in this Paragraph 6. Executive agrees
that the injury the Company will suffer in the event of the breach or threatened
breach by Executive of any clause of this Paragraph 6 will cause the Company
irreparable injury that cannot be adequately compensated by monetary damages
alone. Therefore, Executive agrees that the Company, without limiting any other
legal or equitable remedies available to it, shall be entitled to obtain
equitable relief by injunction or otherwise, without the posting of any bond,
from any court of competent jurisdiction, including, without limitation,
injunctive relief to prevent Executive's failure to comply with the terms and
conditions of this Paragraph 6. The two-year period referenced in Paragraphs
6(a), (d) and (e) above shall be tolled on a day-for-day basis for each day
during which Executive violates the provisions of Paragraphs 6(a), (d) and (e)
in any respect, so that Executive is restricted from engaging in the activities
prohibited by Paragraphs 6(a), (d) and (e) for the full two-year period.
7. No Conflict With Prior Agreements; Due Authorization.
(a) Executive represents to the Company that neither
Executive's execution of this Agreement or commencement of employment hereunder
nor the performance of Executive's duties hereunder conflicts with any
contractual commitment on Executive's part to any third party. The Company
represents to Executive that it is fully authorized and empowered by all
necessary corporate action to enter into this Agreement and that performance of
its obligations under this Agreement will not violate any agreement between it
and any other person, firm or other entity.
(b) Nothing herein shall be construed to require Executive to
use or disclose any information that he is prohibited from using or disclosing
as a result of legal or contractual obligations.
8. Miscellaneous.
(a) Survival. Paragraphs 4(d), 5, 6 and 8 shall survive
the termination hereof.
(b) Binding Effect. Subject to the Executive's rights as set
forth in Paragraph 5(e)(vi), this Agreement shall be binding on the Company in
accordance with its terms and any person or entity which succeeds to the
interest of the Company (regardless of whether such succession occurs by
operation of law) by reason of the sale of all or a portion of the Company's
stock, a merger, consolidation, or reorganization involving the Company or a
sale of the assets of the business of the Company (or portion thereof) in which
Executive performs a majority of his services. This Agreement shall also inure
to the benefit of Executive's heirs, executors, administrators and legal
representative.
(c) Assignment. Except as provided under Paragraph 8(b),
neither this Agreement nor any of the rights or obligations hereunder shall be
assigned or delegated by any party hereto without the prior written consent of
the other party.
(d) Entire Agreement. This Agreement, together with the
Schedules attached hereto, constitutes the entire agreement between the parties
hereto with respect to the matters referred to herein, and no other agreement,
oral or otherwise, shall be binding upon the parties unless it is in writing and
signed by the party against whom enforcement is sought. There are no promises,
representations, inducements or statements between the parties other than those
that are expressly contained herein. Executive acknowledges that he is entering
into this Agreement of his own free will and accord, and with no duress, that he
has been represented and fully advised by competent counsel in entering into
this Agreement, that he has read it and that he understands it and its legal
consequences. No parole or other evidence may be admitted to alter, modify or
construe this Agreement, which may be altered, modified or amended only by a
writing signed by the parties hereto.
(e) Severability; Reformation. In the event that one or more
of the provisions of this Agreement shall become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby. In the
event that any provision of Paragraph 6 is not enforceable in accordance with
its terms, Executive and the Company agree that such provision shall be reformed
to make such provision enforceable in a manner which provides the Company the
maximum rights permitted at law.
(f) Waiver. Waiver by any party hereto of any breach or
default by the other party of any of the terms of this Agreement shall not
operate as a waiver of any other breach or default, whether similar to or
different from the breach or default waived. No waiver of any provision of this
Agreement shall be implied from any course of dealing between the parties hereto
or from any failure by either party hereto to assert its or his rights hereunder
on any occasion or series of occasions.
(g) Notices. Any notice required or desired to be delivered
under this Agreement shall be in writing and shall be delivered personally
against receipt, by courier service or by registered mail, return receipt
requested, and shall be effective upon actual receipt by the party to which such
notice shall be directed, and shall be addressed as follows (or to such other
address as the party entitled to notice shall hereafter designate in accordance
with the terms hereof):
If to the Company, to:
SunCom Wireless Management Company, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Chairman & CEO
With a required copy (which shall not constitute notice) to:
Kleinbard, Xxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esquire
If to Executive, to:
Xx. Xxxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx Xxxxxx, XX 00000
Phone: (000) 000-0000
FAX: (000) 000-0000
Home Phone: (000) 000-0000
(h) Headings. Headings to paragraphs in this Agreement are for
the convenience of the parties only and are not intended to be
part of or to affect the meaning or interpretation hereof.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
(j) Withholding. Any payments provided for herein shall be
reduced by any amounts required to be withheld by the Company
from time to time under applicable Federal, State or local
income or employment tax laws or similar statutes or other
provisions of law then in effect.
(k) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the
Commonwealth of Pennsylvania.
(l) Resolution of Disputes. All disputes, controversies and
claims arising in connection with this Agreement that are not
settled by agreement between the parties shall be finally
settled under the Commercial Arbitration Rules of the American
Arbitration Association ("AAA") in effect from time to time. A
single arbitrator shall be appointed by agreement between the
parties or, failing such agreement, by AAA. The arbitrator may
grant any remedy that (s)he deems just and equitable within
the scope of this agreement, including specific performance.
The award of the arbitrator shall be final and binding and
judgment thereon may be entered in any court having
jurisdiction. The costs and expenses (including reasonable
attorney's fees) of the prevailing party shall be borne and
paid by the party that the arbitrator determines is the
non-prevailing party.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by a duly authorized officer, and Executive has hereunto set his hand,
as of the Commencement Date.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
COMPANY:
SUNCOM WIRELESS MANAGEMENT COMPANY, INC.
By:
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxx
Chairman & Chief Executive Officer
SCHEDULE I
Duties
As Executive Vice President, Operations of the Company, Executive shall maintain
compliance with goals, policies, and objectives established by the Chief
Executive Officer and the Board of Directors of the Company. Executive shall
perform all duties as described in the most current Job Description on file.
SCHEDULE II
Annual Bonuses
Executive shall be entitled to an Annual Bonus based upon achievement of certain
stated objectives established from time to time by the Compensation Committee of
the Board of Directors of Triton.
The "Bonus Target" for executive for any year is equal to 75% of his Base Salary
for that year. The portion, if any, of the Bonus Target that shall be payable in
any given year shall be determined as follows:
-------------------------------------- --------------------------------------
WEIGHTED SCORE PAYMENT PERCENTAGE OF BONUS TARGET
-------------------------------------- --------------------------------------
-------------------------------------- --------------------------------------
Less than 80% 0 payment
-------------------------------------- --------------------------------------
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80.01% to 135.00% As scored
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