AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Amended and Restated 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
Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000 (the "Company"), and W. XXX XXXXX, an
individual residing at Lubbock, Texas (the "Employee").
WITNESSETH:
WHEREAS, the parties entered into an employment agreement as of October 29,
1998 (the "Prior Employment Agreement"); and
WHEREAS, the parties desire to amend and restate said employment agreement
to set forth and confirm their respective rights and obligations with respect to
the Employee's continued 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 continues to employ the
Employee as Chief Technology Officer ("CTO"). The term of the Employee's
employment, pursuant to this Agreement, will commence on October 29, 1999, (the
"Commencement Date") and will continue until October 31, 2001, or the
termination of this Agreement as described in Section 5 hereof, whichever shall
occur first. The Employee hereby agrees to his continued 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 and/or the Chief
Executive Officer ("CEO") or the Chief Operating Officer ("COO") of the Company.
Notwithstanding the foregoing, the Company acknowledges that the Employee has
other business interests and ownerships. Subject to the provisions of Sections 7
through 10 hereof, the Company acknowledges and consents to the continuation of
these ownerships and relationships, provided they do not interfere with the
Employee's duties under this Agreement. 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.
2. COMPENSATION. In consideration of all services rendered by the Employee
as CTO during the remaining 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 $90,000.00, payable periodically but no less often than
semi-monthly, in substantially equal amounts, in accordance with the
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ALAMOSA PCS LLC and W. Xxx Xxxxx
Company's payroll practices from time to time in effect. The Company
will review the Employee's base salary at least once each year and may,
in its discretion, increase the Employee's base salary.
(b) BONUS. In addition to the Employee's base salary, the Employee
shall be eligible to receive a bonus (a "Quarterly Bonus") for each
calendar quarter in an amount, if any, determined as follows: In each
calendar quarter Employee's Quarterly Bonus shall be equal to the sum
of (1) plus (2) as follows:
(1) $7,500.00 multiplied by the percentage set forth opposite each
Expected Milestone set forth in the attached EXHIBIT "A",
incorporated herein by reference, which is achieved for that
calender quarter.
(2) $7,500.00 multiplied by the percentage set forth opposite each
Exceptional Milestone set forth in EXHIBIT "A" which is achieved for
that calendar quarter.
If any particular Expected Milestone or Exceptional Milestone is not
achieved for any calendar quarter, that percentage share of the dollar
amount specified in (1) or (2) above, as the case may be, shall not be
payable as part of the Quarterly Bonus. The Expected Milestones,
Exceptional Milestones and percentages set forth on EXHIBIT "A" may be
changed by the Company at any time and from time to time, but shall be
reasonable by wireless industry standards. Any such change shall not
apply earlier than the calendar quarter following the calendar quarter
in which such change is made by the Company and communicated to the
Employee.
Any Quarterly Bonus owing to the Employee shall be paid within
forty-five (45) days following the end of the applicable calendar
quarter.
(c) UNIT OPTIONS. The options granted to the Employee under his Prior
Employment Agreement, none of which have been exercised, are modified
as follows:
(1) The "Series 8" options granted to Employee ("Series 8 Options")
represent forty-eight thousand five hundred (48,500) membership
units in the Company and have a per unit purchase price equal to
$1.1296.
(2) The "Series 15" options granted to Employee ("Series 15
Options") represent forty-eight thousand five hundred (48,500)
membership units in the Company and have a per unit purchase price
equal to $1.2477.
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ALAMOSA PCS LLC and W. Xxx Xxxxx
(3) The "Series 25" options granted to Employee ("Series 25
Options") represent forty-eight thousand five hundred (48,500)
membership units in the Company and have a per unit purchase price
equal to $1.4238. (The Series 8 Options, the Series 15 Options and
the Series 25 Options are sometimes referred to herein individually
as the "Series Option" or collectively as the "Series Options.")
(4) One-third (1/3) of each Series Option (i.e., 16,166 membership
units from each Series Option) is fully vested and immediately
exercisable on October 29, 1999, and thereafter are exercisable at
any time until December 31, 2006, in accordance with the provisions
of Sections 2(c)(6) and (7) hereof.
(5) Subject to Section 6 hereof, one-third (1/3) of each of the
Series Options shall be vested and exercisable on each of October
29, 2000 and October 29, 2001, respectively, and thereafter be
exercisable at any time until December 31, 2006, in accordance with
the provisions of Section 2(c)(6) and (7) hereof.
(6) The Series Options may be exercised during the Employee's
lifetime by the Employee or his guardian or legal representative. If
the Employee dies or becomes disabled, the following persons may
exercise the exercisable portion of the Series Options on behalf of
the Employee at any time prior to December 29, 2006: (i) if the
Employee is disabled, the guardian or legal representative of the
Employee; or (ii) if the Employee dies, the personal representative
of his estate, or the person who acquired the right to exercise the
Series Options by bequest or inheritance or by reason of the death
of the Employee; provided that the Series Options shall remain
subject to the other terms of this Agreement, and applicable laws,
rules, and regulations. The Series Options may be exercised only
with respect to full units, and no fractional units shall be issued.
(7) Subject to such administrative regulations as the Company may
from time to time adopt, any Series Option may be exercised by the
delivery of written notice to the Company setting forth the number
of membership units with respect to which the Series Option is to be
exercised and the date of exercise thereof (the "Option Exercise
Date") which shall be at least three (3) days after giving such
notice unless an earlier time shall have been mutually agreed upon.
On the Option Exercise Date, the Employee shall deliver to the
Company consideration with a value equal to the total price of the
units to be purchased, payable as follows: (a) cash, certified
check, bank draft, or money order payable to the order of the
Company; and/or (b) any other form of payment which is acceptable to
the Company.
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ALAMOSA PCS LLC and W. Xxx Xxxxx
Upon payment of all amounts due from the Employee, the Company shall
cause certificates for the units then being purchased to be
delivered to the Employee (or the person exercising the Employee's
Series Option in the event of his death) at its principal business
office within ten (10) business days after the Option Exercise Date.
The obligation of the Company to deliver units shall, however, be
subject to the condition that if at any time the Company shall
determine in its discretion that the listing, registration, or
qualification of the Series Option or the units upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary as a
condition of, or in connection with, the Series Option or the
issuance or purchase of membership units of the Company thereunder,
then the Series Option may not be exercised in whole or in part
unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions
not reasonably acceptable to the Company.
If the Employee fails to pay for any of the membership units
specified in such notice or fails to accept delivery thereof, then
the Employee's right to purchase such membership units may be
terminated by the Company.
(8) In the event the Company becomes a wholly-owned subsidiary of
Alamosa PCS Holdings, Inc., a Delaware corporation ("Holdings"),
then the Series Options shall be converted into options for shares
of common stock of Holdings under the Alamosa PCS Holdings, Inc.
1999 Long-Term Incentive Plan, on terms and conditions substantially
identical to the terms and conditions of this Agreement and, where
not otherwise inconsistent with this Agreement, the terms and
conditions of the option agreements entered into pursuant to the
Long-Term Incentive Plan by the other officers of the Company.
The Employee will receive no additional compensation for serving the Company in
any other capacity.
3. EMPLOYEE BENEFITS. The Employee will be entitled to participate in all
incentive, retirement, profit-sharing, life, medical, disability and other
benefit plans and 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 holidays, sick leave and vacation in
accordance with the
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ALAMOSA PCS LLC and W. Xxx Xxxxx
Company's policies as they may change from time to time, but in no event shall
the Employee be entitled to less than four (4) weeks paid vacation per year.
4. EXPENSES.
(a) Reimbursement for Expenses. 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,
including reimbursement for miles driven by the Employee in furtherance
of the Company's business ("Business Mileage").
(1) Reimbursement for Business Mileage shall be eighteen cents
(18(cents)) per mile.
(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.
(b) Expense Allowance. In addition to reimbursed expenses, Employee is
entitled to $400.00 per month as a vehicle allowance.
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
time; (c) may be terminated by the Company for cause (as defined below) at any
time; (d) may be terminated by the Employee, without cause at any time upon
forty-five (45) days' prior written notice delivered by the Employee to the
Company; (e) may be terminated by the Employee for cause (as defined below) at
any time upon forty-five (45) days' prior written notice delivered by the
Employee to the Company; and (f) may be terminated by the Company for
non-performance by the Employee at any time.
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ALAMOSA PCS LLC and W. Xxx Xxxxx
(a) The term "disability" means the determination under the Company's
Long-Term Disability Plan that the Employee is eligible to receive a
disability benefit.
(b) The term "cause" in the event of termination of the Employee's
employment by the Company means (i) any breach of Sections 7 or 9 of
this Agreement by Employee which has a material adverse effect on the
Company and which is not or cannot be cured within thirty (30) days
after notice from the Board of Managers of the Company thereof; (ii)
commission of any act of fraud, embezzlement or dishonesty by the
Employee that is materially and demonstrably injurious to the Company;
(iii) any act or omission by Employee which constitutes a uncured
default or breach of that certain Sprint PCS Management Agreement dated
July 17, 1998 and as it may be amended from time to time or any other
similar Sprint Management Agreement to which the Company or any of its
affiliates or subsidiaries may be a party ("the Sprint Agreement"); or
(iv) 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.
(c) The term "cause" in the event of termination of the Employee's
employment by the Employee means the change in job responsibilities of
the Employee resulting in the demotion, removal or failure to elect
Employee to the position of CTO or the job responsibilities of that
position, which demotion, removal or failure to elect is caused by
something other than cause for termination of the Employee's employment
by the Company under Section 5(b) hereof and other than the
non-performance of the Employee as defined under Section 5(d) hereof.
(d) The term "non-performance by the Employee" in the event of
termination of the Employee's employment by the Company means the
determination by a super-majority (greater than 75%) of the members of
the Board of Managers of the Company, in their sole and absolute
discretion, that the Employee is not performing his duties under this
Agreement after the Board of Managers of the Company has delivered to
the Employee written notice which specifically identifies the manner in
which the Board believes he is not performing his duties and which is
not or cannot be cured within 15 days after such written notice is
delivered to the Employee.
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ALAMOSA PCS LLC and W. Xxx Xxxxx
6. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION ON EMPLOYEE'S DEATH OR DISABILITY. If
the Employee's employment is terminated prior to October 31, 2001,
because of the Employee's death or disability, (i) subject to Section
6(g) hereof, this Agreement terminates immediately; (ii) Employee or
his legal representative or estate, as the case may be, shall be
eligible to exercise any options granted and vested pursuant to Section
2(c) hereof at the time of such death or disability, plus, if such
death or disability does not occur on October 29 of a given year, a
fractional portion of those options which would have vested and become
exercisable pursuant to Section 2(c) hereof on the October 29
immediately following such death or disability based on a fraction
whose numerator is the number of months (including the month in which
the date of death or disability occurs) since the previous October 29
and whose denominator is twelve (12), in accordance with the provisions
of Section 2(c) hereof, and any other options granted to the Employee
shall be forfeited; (iii) the Company will pay the Employee, or his
legal representative or estate, as the case may be, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled on
the last day of employment, but had not yet been received; and (iv) 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 BY THE COMPANY FOR ANY REASON OTHER
THAN FOR CAUSE OR FOR NON-PERFORMANCE OF EMPLOYEE
(1) If the Employee's employment is terminated by the Company prior
to October 31, 2001, for any reason other than for cause or
non-performance of Employee, (i) subject to Section 6(g) hereof,
this Agreement terminates immediately; (ii) Employee or his legal
representative or estate, as the case may be, shall be eligible to
exercise any options granted but not exercised pursuant to Section
2(c) hereof, all of which options shall be deemed vested as of the
date of the Employee's termination of employment regardless of
whether or not they are in fact otherwise vested pursuant to Section
2(c) hereof on said date, in accordance with the provisions of
Section 2(c) hereof; (iii) the Company will pay the Employee, in
full satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled
on the last day
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ALAMOSA PCS LLC and W. Xxx Xxxxx
of employment, but had not yet been received; (iv) the Company will
pay the Employee, within sixty (60) days of such termination, a lump
sum severance payment equal to one (1) year's base salary as in
effect at the date of employment termination; and (v) 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) Any payment pursuant to clause (b)(1)(iv) above (the
"Termination Payment"):
a. will be subject to offset for any advances, amounts
receivable, and loans, including accrued interest, outstanding
on the date of the employment termination; and
b. 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.
(c) CONSEQUENCES OF TERMINATION FOR CAUSE BY THE COMPANY. If the
Employee's employment is terminated by the Company prior to October 31,
2001, for cause, (i) subject to Section 6(g) hereof, this Agreement
terminates immediately; (ii) Employee shall not be eligible to exercise
and shall forfeit any options granted (whether or not vested) pursuant
to Section 2(c) hereof at the time of such employment termination that
have not already been exercised by the Employee at the time of such
employment termination; (iii) the Company will pay the Employee, in
full satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled on
the last day of employment, but had not yet been received; and(iv) 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.
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ALAMOSA PCS LLC and W. Xxx Xxxxx
(d) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR ANY REASON OTHER
THAN FOR CAUSE OR EMPLOYEE'S DEATH OR DISABILITY. If, upon forty-five
(45) days' prior written notice to the Company by the Employee, the
Employee's employment is terminated by the Employee prior to October
31, 2001, for any reason other than for cause or Employee's death or
disability, (i) subject to Section 6(g) hereof, this Agreement
terminates immediately; (ii) Employee or his legal representative or
estate, as the case may be, shall be eligible to exercise any options
granted and vested, but not exercised pursuant to Section 2(c) hereof
at the time of such employment termination, in accordance with the
provisions of Section 2(c) hereof, and any other options granted to the
Employee shall be forfeited; (iii) the Company will pay the Employee,
in full satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled on
the last day of employment, but had not yet been received; and (iv) the
Employee's benefits and rights under any Benefit Plan, other than any
basic health and medical benefit plan, shall be 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.
(e) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR CAUSE.
(1) If, upon forty-five (45) days' prior written notice to the
Company by the Employee, the Employee's employment is terminated by
the Employee prior to October 31, 2001, for cause (i) subject to
Section 6(g) hereof, this Agreement terminates immediately; (ii)
Employee or his legal representative or estate, as the case may be,
shall be eligible to exercise any options granted and vested
pursuant to Section 2(c) hereof at the time of such employment
termination, plus, if such employment termination does not occur on
October 29 of a given year, those options which would have vested
and become exercisable pursuant to Section 2(c) hereof on the
October 29 immediately following such employment termination, in
accordance with the provisions of Section 2(c) hereof and the option
agreement referred to therein, and any other options granted to the
Employee shall be forfeited; (iii) the Company will pay the
Employee, in full satisfaction of all of its compensation (base
salary and bonus) obligations under this Agreement, an amount equal
to the sum of any base salary due to the Employee through the last
day of employment, plus any accrued bonus to which the Employee may
have been entitled on the last day of employment, but had not yet
been received; (iv) the Company will pay the Employee, within sixty
(60) days of such termination, a lump sum severance payment equal to
one (1) year's
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ALAMOSA PCS LLC and W. Xxx Xxxxx
base salary as in effect at the date of employment termination or
the unpaid balance of the annual base salary which would have been
payable to Employee through October 31, 2001, whichever amount shall
be less; and (v) 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) Any payment pursuant to clause (e)(1)(iv) above (the
"Termination Payment"):
a. will be subject to offset for any advances, amounts
receivable, and loans, including accrued interest, outstanding
on the date of the employment termination; and
b. 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.
(f) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR NON-PERFORMANCE BY
THE EMPLOYEE. If the Employee's employment is terminated by the Company
prior to October 31, 2001, for non-performance by the Employee (i)
subject to Section 6(g) hereof, this Agreement terminates immediately;
(ii) Employee or his legal representative or estate, as the case may
be, shall be eligible to exercise any options granted and vested but
not exercised pursuant to Section 2(c) hereof at the time of such
employment termination, in accordance with the provisions of Section
2(c) hereof, and any other options granted to the Employee shall be
forfeited; (iii) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of any
base salary due to the Employee through the last day of employment,
plus any accrued bonus to which the Employee may have been entitled on
the last day of employment, but had not yet been received; and (iv) 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.
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(g) PRESERVATION OF CERTAIN PROVISIONS. Notwithstanding any provisions
of this Agreement to the contrary, the provisions of Sections 7 through
12 hereof shall survive the expiration or termination of this Agreement
as necessary to give full effect to all of the provisions of this
Agreement.
7. 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, Shareholder,
Member, Investor 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 establishing and providing mobile wireless communications services
(the "Business"), including all aspects of the Business, 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
October 31, 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,
Shareholder, Member, Investor or in any other individual or representative
capacity, for a period of two (2) years in any business that is in competition
with the Business and that is located within and/or doing business within the
Service Area as defined above as in existence during the term of the Employee's
employment with the Company. 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
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. The Employee agrees that if a court of competent jurisdiction
determines that the length of time or any other restriction, or portion thereof,
set forth in this Section 7 is overly restrictive and unenforceable, the court
may reduce or modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or modified, the parties
hereto agree that the restrictions of this Section 7 shall remain in full force
and effect. The Employee further agrees that if a court of competent
jurisdiction determines that any provision of this Section 7 is invalid or
against public policy, the remaining provisions of this Section 7 and the
remainder of this Agreement shall not be affected thereby, and shall remain in
full force and effect.
8. EXCEPTIONS TO 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-competition covenants contained in this
Agreement. Employee may
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invest in the securities of any enterprise (but without otherwise participating
in the activities of such enterprise) if (a) such securities are listed on any
national or regional securities exchange or have been registered under Section
12(g) of the Securities Exchange Act of 1934 and (b) the Employee does not
beneficially own (as defined in Rule 13d-3 promulgated under the Securities
Exchange Act of 1934) in excess of 5% of the outstanding capital stock of such
enterprise. In addition, employee's investment in any company or entity in which
Employer is an owner or stockholder at the time of entering into this Amended
and Restated Employment Agreement shall also be an exception to the
non-competition covenants. The names of these companies or entities are shown on
the attached Exhibit B, which is incorporated herein by this reference as if
copied at length. Notwithstanding the foregoing, the Employee's relationship
with other entities or business interests of Employee shall in no way interfere
with or detract from the duties of the Employee to the Company as called for in
this Agreement.
9. CONFIDENTIAL INFORMATION. The Employee recognizes and acknowledges that
he will have access to, and the Company agrees that it will provide certain
information of members of the Company Group (as defined below) and that such
information is confidential and constitutes valuable, special and unique
property of such members of the Company Group. The parties agree that the
Company has a legitimate interest in protecting the Confidential Information, as
defined below. The parties agree that the Company is entitled to protection of
its interests in the Confidential Information. The Employee shall not at any
time, either during or subsequent to the term of this Agreement, disclose to
others, use, copy or permit to be copied, except in pursuance of his duties for
and on behalf of the Company, it successors, assigns or nominees, any
Confidential Information of any member of the Company Group (regardless of
whether developed by the Employee) without the prior written consent of the
Company. Employee acknowledges that the use or disclosure of the Confidential
Information 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-use and 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.
As used herein, "Company Group" means the Company, and any entity that
directly or indirectly controls, is controlled by, or is under common control
with, the Company, and for purposes of this definition "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether through the
ownership of voting securities, by contract or otherwise.
The term "Confidential Information" with respect to any person means any
secret or confidential information or know-how and shall include, but shall not
be limited to, the plans, financial and operating information, customers,
supplier arrangements, contracts, costs, prices, uses, and applications of
products and services, results of investigations, studies or experiments owned
or used by such person, and all apparatus, products, processes, compositions,
samples, formulas, computer programs, computer hardware
================================================================================
EMPLOYMENT AGREEMENT PAGE 12 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
designs, computer firmware designs, and servicing, marketing or manufacturing
methods and techniques at any time used, developed, investigated, made or sold
by such person, before or during the term of this Agreement, that are not
readily available to the public or that are maintained as confidential by such
person. The Employee shall maintain in confidence any Confidential Information
of third parties received as a result of his employment with the Company in
accordance with the Company's obligations to such third parties and the policies
established by the Company.
10. DELIVERY OF DOCUMENTS UPON TERMINATION. The Employee shall deliver to
the Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made,
composed or received by the Employee, solely or jointly with others, that are in
the Employee's possession, custody, or control at termination and that are
related in any manner to the past, present, or anticipated business or any
member of the Company Group. In this regard, the Employee hereby grants and
conveys to the Company all right, title and interest in and to, including
without limitation, the right to possess, print, copy, and sell or otherwise
dispose of, any reports, records, papers, summaries, photographs, drawings or
other documents, and writings, and copies, abstracts or summaries thereof, that
may be prepared by the Employee or under his direction or that may come into his
possession in any way during the term of his employment with the Company that
relate in any manner to the past, present or anticipated business of any member
of the Company Group.
11. DISPUTES. The Company and Employee agree to the following in regard to
any disputes between them arising under any of the provisions of this Agreement
other than the provisions of Sections 7 through 10 hereof. Nothing in this
Section 11 applies to or governs disputes arising under Sections 7 through 10 of
this Agreement.
(a) MEDIATION. The Company and Employee agree to mediate any dispute
arising under the applicable provisions of this Agreement. In the event
of any such 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 such 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, that all questions as to rights and obligations arising
under the terms of this
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EMPLOYMENT AGREEMENT PAGE 13 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
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 ss. 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 ss. 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 referred to in Section
7 hereof or within the State of Texas.
(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 ss. 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 but excluding any attorneys'
fees, 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:
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EMPLOYMENT AGREEMENT PAGE 14 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
(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:
(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
================================================================================
EMPLOYMENT AGREEMENT PAGE 15 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
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.
12. 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 must be given
the position as the Chief Technology Officer ("CTO") of such successor with the
same 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. Upon the date on
which the Company becomes a wholly-owned subsidiary of Holdings, the Company
shall be required to assign all of its rights and obligations hereunder to
Holdings and Holdings shall expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform it, provided that the Employee must be given the position as Chief
Technology Officer of Holdings with the same authority, powers and
responsibilities set forth in Section 1 hereof. Failure of the Company to obtain
such express assumption and agreement at or prior to the effectiveness of any
such succession or event 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 all
options will be immediately vested. For purposes of
================================================================================
EMPLOYMENT AGREEMENT PAGE 16 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
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, (i) 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, and (ii) except in connection with the Company
becoming a wholly-owned subsidiary of Holdings, in which event the Company may
assign this Agreement and all of the Company's rights and obligations hereunder
to Holdings. The Employee may not assign his rights or delegate his duties or
obligations under this Agreement.
13. 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
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
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: W. Xxx Xxxxx
0000 00xx Xxxxxx
Xxxxxxx, Xxxxx 00000
With Copy to:
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
14. 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
================================================================================
EMPLOYMENT AGREEMENT PAGE 17 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
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 or referred to in this Agreement or in the
documents attached as Exhibits to this Agreement.
(c) INVALID PROVISIONS. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding
shall not have the effect of invalidating or voiding the remainder of
this Agreement and the parties hereby agree that the portion so held
invalid, unenforceable or void shall, if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement to the
extent required for the purposes of validity and enforcement thereof.
(d) 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.
(e) 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.
(f) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement in
counterparts, all of which shall be considered one and the same
instrument.
(g) 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, or at the
Company's sole option, by the laws of the state or states where this
Agreement may be at issue in any litigation involving the Company.
================================================================================
EMPLOYMENT AGREEMENT PAGE 18 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
DATED this 2nd day of February, 2000, to be effective October 1, 1999.
COMPANY
ALAMOSA PCS LLC
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Title: Chief Executive Officer
------------------------------------
EMPLOYEE
/s/ W, Xxx Xxxxx
------------------------------------------
W. XXX XXXXX
================================================================================
EMPLOYMENT AGREEMENT PAGE 19 OF 19
ALAMOSA PCS LLC and W. Xxx Xxxxx
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
---------------------------------------
---------------------
Attorney for Employee
Attachment: Exhibit "A" - The Minimum, Expected and Exceptional Milestones for
the Third Quarter and Fourth Quarter of 1999 as
adopted by the Board of Managers of the Company
Exhibit "B" - List of Companies or Entities Excepted from Covenants
EXHIBIT A
EXHIBIT A
ALAMOSA PCS LLC
3Q99 OBJECTIVES
MINIMUM EXPECTED EXCEPTIONAL
MARKET LAUNCH (25%)(1)
El Paso Nov 1999 July 1999 -------
Las Cruces Jan 2000 July 1999 -------
Laredo Aug 1999 July 1999 June 1999
Lubbock March 2000 Sept 1999 Aug 1999
Amarillo July 2000 Sept 1999 Aug 1999
Midland/Odessa May 2000 Sept 1999 Aug 1999
I-27 Dec 2001 Oct 1999 Aug 1999
TRAINING OF MARKET PERSONNEL (10%)
60% by Launch 80% by Launch 100% by Launch(2)
SUBSCRIBERS (25%) 5,500 6,151 6,775 (+/-10%)
REVENUE PER UNIT (10%)(3) 51.62 54.34 55.70 (-5%+2.5%)
QUARTERLY OPERATING EXPENSES (10%)
$8,045 $7,662 $7,279
PREPAREDNESS EVALUATION BY SPRINT PCS (10%)
Not Ready Ready Exceptional
MARKET PLAN IMPLEMENTED (10%) After Launch At Launch 7 Days Prior to Launch(4)
------------------
(1) Launch is defined as "Hard" Launch
(2) Launch is defined as "Hard" Launch
(3) Revenue per unit is defined as the gross ARPU w/o Roaming
(4) Launch is defined as "Hard" Launch
EXHIBIT A
ALAMOSA PCS LLC
4Q99 OBJECTIVES
MINIMUM EXPECTED EXCEPTIONAL
MARKET LAUNCH (30%)(1)
Albuquerque Nov 1999 Oct 1999 Sept 1999
Santa Fe Nov 1999 Oct 1999 Sept 1999
Abilene Nov 2000 Nov 1999 Oct 1999
San Angelo Jan 2001 Nov 1999 Oct 1999
I-25 Dec 2001 March 2000 Nov 1999
I-27 Dec 2001 Oct 1999 Aug 1999
SUBSCRIBERS (30%) 17,600 19,943 21,937 (+/-10%)
CAPITAL EXPENDITURES (10%)(2) $100M $96M $92M
REVENUE PER UNIT (10%)(3)AVG. 51.62 54.34 55.70
YTD EBITDA (20%) ($19,860) ($18,914) ($17,968)
---------------------
(1) Launch is defined as "Hard" Launch
(2) Not to exceed without Board approval
(3) Revenue per unit is defined as the gross ARPU w/o Roaming
EXHIBIT B
TO EMPLOYMENT AGREEMENT OF XXX XXXXX
LIST OF COMPANIES OR ENTITIES EXCEPTED FROM COVENANTS
NONE.
