0
Xxxxx 00, 0000
Xxx Xxxxxxx
Xxxxxxx Xxxxxxxx Corporation
000-000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Dear Don:
This letter(the "Letter Agreement") sets forth the terms of your employment
with Western Wireless Corporation ("WWC"). It will supersede all prior
agreements and understandings between you and WWC with respect to your
employment by WWC; provided, however, that any existing stock option agreements
and indemnification agreements between you and WWC shall remain unmodified and
in full force and effect.
1. Your title will be Vice Chairman. In that capacity you will report to
the Chief Executive Officer of WWC (the "CEO").
2. Your responsibilities will include indentifying and evaluating
alternative sources of capital including the public markets, together
with such other duties as may be assigned to you by the CEO. In
addition, you agree to serve as a director and/or senior officer of any
subsidiary of WWC, if so elected, without any additional salary or
other compensation. You will devote substantially all of your business
time and attention to the obligations delineated in this Letter
Agreement.
3. Your base compensation will be $150,000, payable in accordance with
standard payroll practices of WWC. In addition, you will have an
opportunity, as determined by the Board of Directors of WWC, to earn
an annual bonus of up to 70 percent of your base compensation, and to
continue, during the course of your employment, participation in the
option program at a level comparable to recent grants. It is understood
that nothing herein will prevent the Board of Directors of WWC, in its
sole and absolute discretion, from, at any time, increasing your
compensation, either permanently or for a limited period, whether in
base compensation, by bonus or otherwise, if the Board of Directors in
its sole discretion, shall deem it advisable to do so in order to
recognize and fairly compensate you for the value of your services to
WWC; PROVIDED, HOWEVER, that nothing contained in this paragraph three
shall in any manner obligate the Board of Directors to make any such
increase or provide any such additional compensation or benefits.
4. WWC will reimburse you for all reasonable out-of-pocket business
expenses paid or incurred by you in connection with the performance of
your duties, upon submission of signed, itemized lists of such
expenses on general forms established for that purpose by WWC.
5. You will be entitled to participate in all group health and insurance
programs and all other fringe benefit or retirement plans or other
plans effective generally with respect to executives of WWC.
6. WWC has previously entered, or will enter, into an Indemnification
Agreement with you pursuant to which WWC will agree to indemnify you
against certain liabilities arising by reason of your affiliation with
WWC.
7. (a) Notwithstanding any other provision of this Letter Agreement,
your employment by WWC may be terminated by WWC at any time, with or
without Cause, as defined below. In the event of a termination for
Cause you will have no rights to severance payments. Termination for
"Cause" means (i) your gross neglect or willful material breach of
your principal employment responsibilitie or duties,
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(ii) a final judicial adjudication that you are guilty of a felony,
(iii) fraudulent conduct as determined by a court of competent
jurisdiction in the course of your employment with WWC or any of its
subsidiaries, (iv) the breach by you of the covenant set forth in
paragraph nine, below, or (v) the material breach by you or any other
provision of this Letter Agreement which continues uncured for a period
of thirty (30) days after notice therof by WWC. In the event of your
voluntary termination of employment with WWC, you will have no rights
to severance benefits.
(b) In the event of an involuntary termination for other than Cause
(which shall include your resignation as a direct result of (i) a
reduction in your base compensation and/or incentive bonus target
percentage, (ii) a material relocation of the business site where you
perform your principal job responsibilities or duties, (iii) a material
change in responsibility, (iv) a change in reporting relationship or
(v) the material breach by the Company of any provision of this Letter
Agreement which continues uncured for a period of thirty (30) days
after notice therof by you), then (A) you will be entitled to receive a
severance payment in an amount equal to your accrued but unpaid
existing annual targeted incentive bonus through the date of
termination, 12 months of your then base compensation and an amount
equal to 12 months of your existing annual targeted incentive bonus;
(B) WWC will, at its expense, make all COBRA benefit payments of behalf
of you and your dependents for twelve (12) months following such
involuntary termination; and (C) with respect to any stock options
previously granted to you by WWC which remain unvested at the time of
the involuntary termination, notwithstanding the vesting language in
the stock option agreement pursuant to which such options were granted,
there shall be immediate vesting of that portion of each such grant of
unvested stock options as equals the product of the total number of
such options under such grant which remain unvested multiplied by a
fraction the numerator of which is the sum of (i) the number of days
from the date on which the last vesting of options under such grant
took place to and including the date on which the termination occurs
plus (ii) 365 and the denominator of which is the number of days
remaining from the date on which the last vesting of options under such
grant took place to and including the date on which the final vesting
under such grant would have occurred.
Your death or permanent disability will be deemed an involuntary
termination for other than Cause. "Permanent disability" shall mean
your inability substantially to render the services required hereunder
for eight (8) months in any eighteen (18) month period because of a
physical or mental condition, it being understood that until you have
received notice from WWC terminating this Letter Agreement, you will
continue to receive your base compensation and all other benefits to
which you are entitled under this Letter Agreement.
(c) Each of your stock option agreements with WWC shall provide for
full vesting of all stock options granted to you upon a change of
control (as defined in such stock option agreements) of WWC.
(d) You agree that upon termination of your employment by WWC for
any reason you will surrender to WWC all proprietary records, lists and
other documents obtained by you or entrusted to you during the course
of your employment by WWC, together with all copies of all such
documents.
8. You agree not to disclose at any time, whether during the term of this
Letter Agreement or thereafter, any secret or confidential information
relating to WWC's or any of its subsidiaries' business, financial
condition or prospects, which information you have obtained while
employed by WWC or by any of its subsidiaries or any of the
predecessors in interest of any of them, except (i) as may be required
in furtherance of the businesses of WWC or of any of its subsidiaries,
(ii) with WWC's express prior written consent, (iii) if such
information is made generally available to the public through no fault
of
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yours, or (iv) if such disclosure is required by applicable law or
regulation or by legal process and then only with prompt written notice
to WWC in advance of any such disclosure.
9. You agree that, during the term of your employment by WWC and for a
period of one (1) year immediately following the termination of your
employment with WWC for any reason whatsoever, you will not, either
directly or indirectly, for compensation or any other consideration,
individually or as an employee, broker, agent, consultant, lender,
contractor, advisor, solicitor, stockholder (provided that ownership of
5% or less of the outstanding stock of any corporation listed on a
national securities exchange is not prohibited), proprietor, partner,
or person having any other material economic interest in, affiliated
with or rendering services to any other entity, engage in or provide
services to or for a business that is substantially the same as or
similar to WWC's or its subsidiaries' businesses and which competes
within the applicable commercial mobile radio services markets serviced
by WWC or its subsidiaries, directly or indirectly.
10. This Letter Agreement contains the entire agreement between you and WWC
with respect to your employment by WWC. This Letter Agreement may not
be amended, waived, changed, modified or discharged except by an
instrument in writing executed by or on behalf of you and WWC.
11. All notices, requests, demands and other communications with respect to
this Letter Agreement will be in writing and will be deemed to have
been duly given if delivered by hand, registered or certified mail
(first class postage and fees prepaid, return receipt requested),
telecopier or overnight courier guaranteeing next-day delivery, as
follows:
a) to WWC:
Western Wireless Corporation
0000 XX Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy (which does not constitute notice) to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
b) to you:
Xxx Xxxxxxx
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
and/or to such other persons and addresses as either you or WWC has
specified in writing to the other by notice as aforesaid.
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12. If any part of this Letter Agreement is hereafter construed to be
invalid or unenforceable in any jurisdiction, the same will not affect
the remainder of the Letter Agreement or the enforceability of such
part in any other jurisdiction, which will be given full effect,
without regard to the invalid portions or the enforceability in such
other jurisdiction. If any part of this Letter Agreement is held to be
unenforceable because of the scope therof, you and WWC agree that the
court making such determination will have the power to reduce the
duration and/or area of such provision and, in its reduced form, said
provision shall be enforceable; PROVIDED, HOWEVER, that such court's
determination will not affect the enforceability of this Letter
Agreement in any other jurisdiction beyond such court's authority.
13. This Letter Agreement will be governed by and construed and interpreted
in accordance with the laws of the State of Washington without
reference to conflicts of laws principles.
Please signify your acceptance of the terms of this Letter Agreement by signing
where indicated below.
Sincerely yours,
WESTERN WIRELESS CORPORATION
/s/ XXXX X. XXXXXXX
----------------------------
By: Xxxx X. Xxxxxxx
-------------------------
Title: Chairman of the Board
and Chief Executive Officer
----------------------------
AGREED TO AND ACCEPTED:
/s/ XXX XXXXXXX
-------------------------
Xxx Xxxxxxx
