Exhibit 10.35
[Triton PCS, Inc. Letterhead]
May 6, 2003
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 19085
Dear Xx. Xxxxxxx:
You previously entered into an employment agreement (the "Employment
Agreement") initially effective February 4, 1998 and thereafter amended with
Triton Management Company, Inc. (the "Company") and its parent, Triton PCS
Holdings, Inc. ("Triton"). That Employment Agreement provided for an initial
term of five (5) years with automatic one-year extensions in the absence of
either party providing a notice of nonrenewal. You have indicated a desire to
retire and resign from your positions with Xxxxxx and the Company as well as
your position on the Board of Directors of Triton. On behalf of Triton and the
Company, in light of your past services as President and Chief Operating Officer
of Triton and the Company, in connection with your retirement, Triton and the
Company hereby agree (this "Agreement") to the following terms and conditions of
your separation from employment:
1. Termination and Retirement. You will resign your employment with the
Company effective as of June 30, 2003 (the "Retirement Date"). As of the
Retirement Date, you will cease to be an officer of Triton, the Company and
their subsidiaries and affiliates, as applicable. You will also resign from the
Board of Directors of Xxxxxx (the "Board") effective immediately following the
conclusion of the currently scheduled May 2003 Board meeting (expected to occur
on or about May 6, 2003) and hereby agree to deliver a letter of resignation
addressed to the Corporate Secretary of Xxxxxx (the "Director Resignation
Letter") at the May 2003 Board meeting.
Announcement of your retirement shall be made at a time mutually
agreeable to you and Triton, but in no event will any announcement be made prior
to Xxxxxx's First Quarter 2003 earnings report release, currently expected to
occur no later than May 15, 2003. Notwithstanding the foregoing, you understand
that if your resignation is because of a disagreement with Xxxxxx relating to
its operations, policies, or practices and the Director Resignation Letter
describes such disagreements and requests disclosure of such matters, Xxxxxx
will be obligated to disclose your resignation and describe such disagreement on
a Form 8-K as provided under applicable Securities and Exchange Commission rules
and regulations. You should also be aware that the Securities and Exchange
Commission has proposed certain changes to rules relating to the disclosure of
directors' and officers' resignations that, if implemented, may effect the
disclosure required in connection with your termination and the parties to this
Agreement agree to comply with any applicable requirements.
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 2
2. Severance Pay. In connection with your retirement, the Company will pay or
provide the compensation set forth in this Section. All payments made in
accordance with this Section shall be subject to applicable withholding.
a. The Company will pay you all base salary earned but unpaid as of your
Retirement Date together with an amount equal to the value of your accrued but
unpaid vacation as of such date. You will also be reimbursed for any
unreimbursed business expenses in accordance with the Company's standard
policies and procedures. Such amount shall be paid in a single lump-sum within
ten days following the effective date of your resignation.
b. In addition to the foregoing, the Company will pay you an amount of
Two Hundred Ninety-Five Thousand Dollars ($295,000.00) representing one-year's
base salary. Such amount shall be in the following manner: (i) one hundred and
forty-seven thousand five hundred dollars shall be paid in thirteen equal
biweekly installments during the period from July 1, 2003 until December 31,
2003 and shall be paid on such dates and in such manner as consistent with
Xxxxxx's normal payroll practices for its executives; and (ii) one hundred and
forty-seven thousand five hundred dollars ($147,500) shall be paid in a single
lump-sum on or before December 31, 2003. Notwithstanding the foregoing, on or
before December 1, 2003, you may elect to have the lump-sum distribution
described in the preceding Section 2(b)(ii) of one hundred and forty-seven
thousand five hundred dollars ($147,500), paid to you in biweekly installments
during the period from January 1, 2004 to June 30, 2004 (to be paid on such
dates and in such manner as consistent with Xxxxxx's normal payroll practices
for its executives) and in the event of such election, the period during which
you will continue to be eligible to participate in Xxxxxx's group health plan
will be extended as provided in Section 2(f) below.
c. You will be entitled to a payment of Seventy Three Thousand Seven
Hundred Fifty Dollars ($73,750.00) representing a pro rata portion of bonus
payments for calendar year 2003. This additional bonus payment will be made at
the same time as the lump-sum payment referred to in paragraph 2b above and in
no event later than December 31, 2003.
d. With respect to all outstanding awards of restricted stock under
Xxxxxx's Stock and Incentive Plan or similar equity incentive arrangement, as of
your Retirement Date the vested portion of those awards will be determined as if
you had continued to provide services to Triton and the Company through and
including May 1, 2004 such that as of your Retirement Date, you will be vested
in such additional Triton shares as identified on attached Schedule X. Xxxxxx
and the Company shall take such actions as may be necessary to provide for the
acceleration of vesting as described herein. Any portion of any award that is
not vested as of your Retirement Date shall be forfeited in accordance with the
terms of your awards.
e. You shall be entitled to retain property of Xxxxxx identified on the
attached Schedule B.
f. During the period from July 1, 2003 until December 31, 2003, you will
be entitled to continue to participate in Xxxxxx's health care plan in the same
manner (including, but not limited to applicable employee contributions,
copayments, and deductibles) as before your
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 3
Retirement Date subject to such changes as may be made for other executives of
Triton on or after that date. In the event that you elect to receive a portion
of your severance pay during the period from January 1, 2004 through June 30,
2004 as provide in Section 2(b) above, you will be entitled to continue to
participate in Triton's health care plan during such period in the same manner
(including, but not limited to applicable employee contributions, copayments,
and deductibles) as before your Retirement Date subject to such changes as may
be made for other executives of Triton on or after that date. Any contributions
required from you to maintain coverage during the period following your
Retirement Date shall be deducted from the payments scheduled to be made during
such period under paragraph 2b above. Following either the six-month or
twelve-month period (as applicable), you will be entitled to continue your
health care coverage as may otherwise be permitted under "COBRA" as such
coverage is required under Internal Revenue Code Section 4980B. Except as
otherwise provided under this paragraph, you will be eligible to receive
benefits under retirement, health and other welfare benefit plans maintained by
the Company in accordance with the terms of such plans as in effect on your
Retirement Date.
3. Excess Payments. You acknowledge that the payments to be provided to you
under Section 2 above exceed any compensation or benefits which would be paid
you on resignation of your employment under the terms of your Employment
Agreement. You further acknowledge and agree that the payments to be provided to
you under Section 2 above shall be in lieu of and discharge any obligations of
the Company to you for any further compensation, unused vacation, severance pay,
or any other expectations of remuneration or benefit.
4. Further Services.
a. Consulting Services. Following your Retirement Date, you agree that
upon reasonable request, you will provide Triton and the Company with
consultative and advisory services on matters relating to the operation and
management of Triton and the Company as may be requested from time to time.
b. Litigation Cooperation. You agree, upon reasonable request, to provide
to Triton and the Company and its parent companies, subsidiaries and affiliates
truthful and complete cooperation in any litigation or arbitration of matters
arising out of or related to your activities while employed by the Company,
whether or not such matters have been commenced as of your Retirement Date.
c. Performance and Payment. The Company shall use commercially reasonable
efforts to schedule any services requested under this Section at such times and
locations as shall not unreasonably interfere with your business or personal
affairs. You agree that you will provide up to a maximum of forty-eight (48)
hours of additional services following your Retirement Date under this Section
without any additional payment or remuneration for such services (other than
reimbursement for expenses as provided herein). In the event that you provide
additional services in excess of the foregoing limitation, you shall be entitled
to payment for such additional services at the rate of One Thousand Dollars
($1,000.00) for each full day (7 hours or more) of service and Five Hundred
Dollars ($500) for each half day (less than seven
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 4
hours) of service. You will be entitled to reimbursement for the out-of-pocket
expenses you reasonably incur in connection with providing services as provided
in this Section.
5. Release. As a material inducement to Triton and the Company to enter into
this Agreement and in consideration for the payments contained herein, you, on
behalf of yourself, your heirs, executors, administrators and assigns hereby
irrevocably and unconditionally release Triton, the Company and their current,
former and future parent companies, subsidiaries and affiliates, together with
all of their current, former and future employees, directors, partners, members,
shareholders, officers, agents, attorneys, representatives, predecessors,
successors, related entities, assigns, and the like, and all persons acting by,
through, under or in concert with any of them (collectively, the "Releasees")
from any and all charges, complaints, claims, liabilities, obligations,
promises, agreements, controversies, damages or causes of action, suits, rights,
demands, costs, losses, debts and expenses (including attorneys' fees and costs
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any claims arising out of or related to your
service as an officer and director of Triton and its affiliates or your
employment with the Company or the ending of that employment, but excluding (a)
claims by you for vested retirement plan benefits under the Company's
tax-qualified retirement plan; (b) claims for severance payment under paragraph
2 above or claims for benefits under any insured group health plan maintained by
the Company, including any right to continuation coverage under COBRA; (c)
claims for indemnification under the terms of Section 4(d) of the Employment
Agreement; (d) claims under any liability insurance policy maintained in
accordance with Section 4(e) of the Employment Agreement; or (e) claims by you
for indemnification to the extent that Triton or the Company has provided such
indemnification pursuant to the terms of its bylaws, a resolution of the board
of directors or any directors and officers liability policy maintained by Triton
or the Company or as provided in Section 6 below. You further agree to waive
irrevocably any right to recover under any claim that may be filed on your
behalf by any federal, state or local government entity, or otherwise, relating
to your employment with the Company or the ending of that employment, for
example in the event that a class action is brought against the Company in which
you are a member of the class. Xxxxxx and the Company, as of the date hereof,
are not aware of any basis for making a claim against you for breach of your
obligations as an officer or director of Triton or the Company.
6. Indemnification and Insurance.
a. Notwithstanding any other obligation to provide you with indemnification
or protection under any directors and officers liability policy, Xxxxxx shall
indemnify you to the full extent then permitted by law against expenses
(including counsel fees and disbursements), judgments, fines (including excise
taxes assessed on an individual with respect to an employee benefit plan) and
amounts paid in settlement in connection with any threatened, pending or
completed action, suit, or proceeding whether civil, criminal, administrative,
or investigative arising in connection with or by reason of the fact that you
are or were an officer or director of Triton, the Company, or their affiliates.
If any claim is asserted hereunder for which you reasonably believe in good
faith that your are entitled to be indemnified, Triton shall pay your reasonable
legal expenses (or cause such expenses to be paid) on a quarterly basis,
provided that
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 5
you shall reimburse Triton for such amounts, plus simple interest thereon at the
90-day United States Treasury bill rate as in effect from time to time,
compounded annually, if you are found by a final, non-appealable order of a
court of competent jurisdiction not to be entitled to indemnification.
b. Triton shall use its reasonable best efforts to ensure that you are
covered under any directors' and officers' liability policy maintained by Triton
or the Company for a period of ten years following your Retirement Date to the
same extent that you would have been eligible for such coverage had you remained
in employment with the Company; provided that the obligation to provide such
coverage is conditioned on the availability of such liability coverage that
includes you as an insured person thereunder on commercially reasonable terms as
determined by Triton in its sole discretion.
7. No Complaints. You represent that you have not filed any complaints or
charges or lawsuits against Triton, the Company or any other Releasee with any
governmental agency or court and you have not assigned or transferred, or
purported to assign or transfer, to any person or entity, any claim or any
portion thereof or interest therein you have against Triton, the Company or any
other Releasee.
8. Non-Disparagement. You agree that you will not make any disparaging or
defamatory comments about Triton or the Company, or any of their officers,
directors, management, or employees, nor will you authorize, encourage or
participate with anyone on your behalf to make such statements. Xxxxxx and the
Company agree that no member of the Board of Triton nor the chief executive
officer or chief financial officer of either Xxxxxx or the Company will make any
disparaging or defamatory comments about you and will not authorize, encourage
or participate with anyone to make such statements.
9. Confidentiality. You agree to keep confidential the terms of this
Agreement. This provision does not prohibit you from providing this information
to your attorneys or accountants for purposes of obtaining legal or tax advice
or as otherwise required by law. Neither Triton nor the Company will disclose
the terms of this Agreement except as necessary in the ordinary course of its
business or as required by law.
10. Company's Remedies. You acknowledge and agree that the payments and
benefits to be provided pursuant to Section 2 are subject to termination,
reduction or rescission in the event you violate any of the material terms of
this Agreement. In the event of such a violation by you, you will forfeit all
payments or benefits not yet provided immediately upon your breach of the
Agreement.
11. Reliance. You represent and acknowledge that you understand the terms of
the Agreement and have been given an opportunity to ask questions of the
representatives of Triton and the Company. You have been advised to consult with
an attorney prior to signing this Agreement; whether you choose to do so is your
decision. You further represent that in signing this Agreement you do not rely,
and have not relied, on any representation or statement not set forth in this
Agreement made by any representative of Triton or the Company or any other
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 6
Releasee with regard to the subject matter, basis or effect of this Agreement or
otherwise. This Agreement is knowingly and voluntarily entered into by all
Parties.
12. Securities Filings. The parties will cooperate in making any filings that
may be required relating to any acquisition or disposition by you of any
securities of Triton on or after your Retirement Date, including but not limited
to any Form 144 filings and any Forms 4 and 5 filings. Other than contained in
this Agreement, or under applicable federal and state securities laws, there are
no agreements between you and Triton restricting the sale or other disposition
by you of any securities of Triton you now own.
13. Entire Agreement. This Agreement sets forth the entire agreement between
the Parties and except as expressly provided herein fully supersedes any and all
prior agreements, understandings or arrangements between the Parties about the
subject matter of this Agreement.
Notwithstanding the foregoing, the provisions of your Employment Agreement
intended to survive your termination of employment including but not limited to
the provisions to indemnification as provided in paragraph 4(d); and the
restrictive covenants, including noncompetition, confidentiality and
nonsolicitation as provided in paragraph 6 of that Employment Agreement shall
remain in full force and effect following your Retirement Date as provided under
the terms of the Employment Agreement.
14. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance with the
laws of the State of Pennsylvania without reference to rules regarding conflicts
of law.
b. The provisions of this Agreement are severable and if any part of it is
found to be unenforceable, the other provisions shall remain fully valid and
enforceable.
c. Neither this Agreement nor any part of it may be modified, amended,
changed or terminated orally, and any modification, amendment, or termination
must be in writing signed by both parties. Any waiver of any term or provision
of this Agreement must be in writing and signed by the party granting the
waiver.
d. This Agreement shall be binding on you and your heirs, administrators,
representatives, executors and assigns and shall inure to the benefit of Triton
and the Company, their parent companies, subsidiaries and affiliates and to
their successors and assigns.
e. Nothing in this Agreement supercedes or modifies your rights and
obligations under that certain First Amended and Restated Stockholders'
Agreement, dated as of October 27, 1999, among Triton and the stockholders party
thereto.
15. 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
Xx. Xxxxxx X. Xxxxxxx
May 6, 2003
Page 7
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 Triton or the Company, to the attention of the
Chairman of the Board of Directors of Triton at Xxxxxx's
principal executive offices, with a copy to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 20036
Attention: Xxxxxxx X. Xxxx
Xxxxxxxxx: (000) 000-0000
If to Executive:
Xx. Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 19085
You may evidence your acceptance of this Agreement by executing this
Agreement where provided below and returning it to me. Pending execution of this
Agreement or in the event you elect not to accept this offer, your employment
shall continue under the terms of your Employment Agreement including the
automatic extension of your Employment Period as provided therein.
Triton PCS Holdings, Inc.
Triton Management Company
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer
Executive
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
Schedule A
Accelerated Vesting
As of your Retirement Date, you will be vested in the following shares that
would otherwise have been forfeited in accordance with the terms of your
agreements with Triton:
Vesting Date Vested Shares
December 31, 2003 39,100
May 1, 2004 157,500
------------------------------------ -------------------------------------------
TOTAL 387,500
Note: Xxxxx Xxxxxxx will be vested in 1,790,406 shares as of his retirement
date. Xxxxx Xxxxxxx will have the additional 387,500 shares noted vesting post
his retirement date and per this agreement. A portion of the vesting shares will
be sold to satisfy the related tax liability related to the May 1, 2004 vest and
the net amount applied to Xxxxx Xxxxxxx'x existing account at EquiServe, our
plan administrator. Xxxxx Xxxxxxx will be vested in 2,177,906 shares, inclusive
of the otherwise forfeited shares noted above. Per EquiServe's records, Xxxxx
Xxxxxxx'x account has a balance of 362,164 as of May 1, 2003. The shares
associated with the May 1, 2003 vest will be applied to Xxxxx Xxxxxxx'x
EquiServe account net of any shares sold to satisfy the tax liability her
assumed when the shares vested.
Schedule B
Company Property Retained by Executive
As of your Retirement Date, you shall be entitled to retain the following items
of Triton property:
2 Dell Laptops
1 HP Printer
1 Panasonic Phone
1 Nokia Phone
1 Blackberry
4 Office Paintings
