Exhibit 10.23
Execution Copy
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into on August
30, 2000 by and between AirGate PCS, Inc., a Delaware corporation (the
"Company"), and Xxxxxxx X. Xxxxxxxxx ("Executive") to be effective as of the
date hereof (the "Effective Date").
RECITALS
In consideration of the covenants and agreements herein set forth, the
parties hereto agree as follows:
1. Duties and Scope of Employment.
------------------------------
(a) Effective as of the Effective Date, the Company shall
employ Executive as a part time employee to provide such services as may be
reasonably be requested by the chief Executive Officer of the Company in
connection with legal affairs of the Company. On September 28, 2000 (the
"Full-Time Date"), Executive shall become a full-time employee as the Vice
President, General Counsel and Secretary of the Company reporting to the Chief
Executive Officer. From and after the Full-Time Date, Executive shall be the
Company's chief legal officer, responsible for all legal services provided to
the Company, and shall be a member of the Company's senior management and
policy-making team (and committees of such team, if any). Executive shall render
such professional services in the performance of her duties consistent with
Executive's position within the Company and as the Company's Chief Executive
Officer or Board of Directors may reasonably request from time to time.
(b) After the Full-Time Date, Executive's duties and
responsibilities shall include, but are not limited to, the following:
Advice and counsel to the executive team;
Advice and counsel to the Board of Directors;
Corporate secretarial functions;
Securities compliance and advice;
Legal support of mergers and acquisitions;
Legal support of financing transactions;
Legal support for Board of Director and executive
compensation matters, Company contracts and agreements;
Legal regulatory matters;
Selection, retention and management of outside counsel
and other legal resources; and
Budgetary matters related to legal services provided to the
Company.
(c) Executive agrees to devote reasonable attention and time during
normal business hours (except when on authorized vacation, holidays or sick
leave) to the business and affairs of the Company, and, to the extent necessary
to discharge the responsibilities assigned to Executive hereunder, to use
Executive's reasonable best effort to perform faithfully and efficiently such
responsibilities; provided, that Executive may (A) serve on corporate, civic or
charitable boards and committees, (B) deliver lectures, fulfill speaking
engagements and teach at educational institutions, and (C) manage personal
investments, so long as such activities do not significantly interfere with the
performance of Executive's responsibilities as an employee of the Company in
accordance with this Agreement.
2. Employee Benefits. Executive shall be eligible for (i) all employee
-----------------
benefit plans and policies currently and hereafter maintained by the Company and
its affiliated companies for peer executives of the Company and its affiliated
companies, subject to the terms and conditions of such plans and policies, and
(ii) such other employee benefits as are set forth in this Agreement.
3. At-Will Employment. Executive and the Company understand and
------------------
acknowledge that Executive's employment with the Company constitutes "at-will"
employment. Executive and the Company acknowledge that this employment
relationship may be terminated at any time, upon four weeks written notice to
the other party, with or without cause or for any or no cause, at the option
either of the Company or Executive, as provided in Section 5 hereof.
4. Compensation.
------------
(a) Base Salary. For the period from the Effective Date to the
-----------
Full-Time Date, the Company shall pay Executive a salary of $5,000. Beginning on
the Full-Time Date and for the remainder of the term of this Agreement, the
Company shall pay Executive as compensation for her services a base salary at
the annualized rate of $190,000.00 (the "Base Salary"). Such salary shall be
paid periodically in accordance with normal Company payroll practices and
subject to the usual, required withholding and deductions. The Base Salary shall
be reviewed for possible increase at least annually, beginning no more than
twelve (12) months after the last such annual review, or the date of hire, if
there has been no such review. Any increase in the Base Salary shall not serve
to limit or reduce any other obligation to Executive under this Agreement. The
"Base Salary" as used herein shall refer to the Base Salary as so increased.
(b) Bonuses. Executive shall be entitled to bonuses as follows:
-------
(i) Annual Bonus. In addition to Executive's Base Salary,
------------
Executive shall be eligible to receive an annual bonus (the "Annual Bonus"),
with the target set at 35% of Executives Base Salary then in effect, as
determined by the Board (in its sole discretion) in consultation with Executive,
and according to the terms of any applicable Company executive bonus plans. The
Annual Bonus shall be payable in accordance with the Company's normal practices
and policies for peer executives of the Company and its
-2-
affiliated companies. Executive's Annual Bonus for fiscal year 2000 shall be
prorated from the Full-Time Date through the end of the year.
(ii) Perk Bonus. Executive is also entitled to receive a $10,000
----------
annual perk bonus, as such bonus may be increased from time to time pursuant
to the Company's incentive plans, practices, policies and programs generally
applicable to peer executives of the Company and its affiliated companies.
Such perk bonus shall be payable monthly.0
(c) Stock Option. Executive shall be eligible to participate in the
------------
Company's stock option plan at the level established for the position held by
Executive and in accordance with the Company's stock option plan. Executive's
initial grant, which shall be made as soon as possible after the Effective Date,
shall be 90,000 shares at a price equal to the fair market value of the
Company's common stock on the date of grant. Such options shall be incentive
stock options to the extent permitted by applicable tax law. If the Board
approves an amendment to Executive's option agreement or to the standard option
agreement to such effect, the option would fully vest upon Executive's actual or
constructive termination of employment following a change in control of the
Company.
(d) Incentive and Welfare Programs. Executive and/or Executive's
------------------------------
family, as the case may be, shall be entitled to participate in (i) all
long-term, stock-based and other incentive plans, practices, policies and
programs generally applicable to peer executives of the Company, an its
affiliated companies, and (ii) all savings and retirement plans, practices,
policies and programs generally applicable to peer executives of the Company,
and its affiliated companies. In addition, Executive and/or Executive's family,
as the case may be, shall be entitled to participate in and to receive all
benefits under welfare benefit plans, practices, policies and programs provided
by the Company (including without limitation medical, prescription drug, dental,
vision, disability, life insurance, accidental death and dismemberment, and
travel accident insurance plans and programs) to the extent generally applicable
to peer executives of the Company.
(e) Subsequent Agreements. If, after the Effective Date, the
---------------------
Compensation Committee or Board of Directors approves an employment agreement,
change in control agreement, or similar change-in-control protection for any
member of senior management of the Company (other than the Chief Executive
Officer), which is on terms more favorable than in this Agreement, such more
favorable terms and agreements (other than with respect to salary, bonuses, and
other dollar amounts, which shall be tailored on an individual basis) will be
made available to Executive.
5. Termination of Employment.
-------------------------
(a) The Company may terminate Executive's employment for "Cause" or
without Cause. Executive's termination of employment shall not be deemed to be
for Cause, unless and until (1) Executive has been given the opportunity, on
reasonable advance notice, to be heard before the Board, together with counsel
to Executive, and (2) there shall have been delivered to Executive a copy of a
resolution thereafter duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board (excluding Executive, if
-3-
Executive is a member of the Board) finding that, in the good faith opinion of
the Board, Executive is guilty of conduct constituting Cause, and specifying the
particulars thereof in detail.
"Cause" means (a) Executive's willful and continued failure to perform
substantially Executive's duties as contemplated by Section 1 (except as a
result of Executive's incapacity due to physical or mental illness or injury),
after a written demand for substantial performance is delivered to Executive by
the Board or the Chief Executive Officer of the Company which specifically
identifies the manner in which the Board believes that Executive has not
substantially performed Executive's duties, (b) Executive's willful engaging in
illegal conduct or gross misconduct that is demonstrably injurious to the
Company, or (c) final conviction of a felonious crime. For purposes of this
definition, no act or failure to act on the part of Executive shall be
considered "willful" unless it is done, or omitted to be done, by Executive in
bad faith or without reasonable belief that Executive's action or omission was
in the best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or upon the
instruction of the Chief Executive Officer of the Company or based upon the
advice of outside counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, by Executive in good faith and in the best
interests of the Company.
Executive will be deemed to have been terminated by the Company if:
(a) Executive is assigned any duties inconsistent in any respect with
Executive's position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
1(a), or any other diminution in such position, authority, duties or
responsibilities (whether or not occurring solely as a result of the Company's
ceasing to be a publicly traded entity), other than an isolated, insubstantial
and inadvertent action not taken in bad faith that is remedied by the Company
promptly after receipt of notice thereof given by Executive; (b) the Company
fails to comply with any of the provisions of Section 4, 5, 6, 7 or 8, other
than an isolated, insubstantial and inadvertent failure not occurring in bad
faith that is remedied by the Company promptly after receipt of notice thereof
given by Executive; or (c) the Company requires Executive to be based at any
office or location (1) more than 35 miles from the Company's current corporate
offices or (2) other than the Company's principal offices; or (d) a failure by
the Company to provide change of control protections acceptable to Executive
within six months of the date hereof, provided that Executive gives the Company
written notice within sixty (60) days after expiration of such period that
acceptable change of control provisions have not been made available to
Executive and constitute a deemed termination of Executive under this
subparagraph (d).
(b) Upon termination of employment (or deemed termination) of
Executive other than for Cause, the Company shall pay Executive a severance
payment on the date of termination of employment (or deemed termination) equal
to six months of the then existing Base Salary, plus one additional month of
Base Salary for each year of employment by the Company or one of its affiliated
companies. Executive shall not be entitled to any additional payments (other
than accrued and unpaid compensation and benefits) if Executive's employment is
terminated for Cause.
6. Fringe Benefits. Executive shall be entitled to fringe benefits in
---------------
accordance with the plans, practices, programs and policies of the Company and
its affiliated companies as in
-4-
effect generally at any time with respect to peer executives of the Company and
its affiliated companies.
7. Office and Support Staff; Professional Memberships.
--------------------------------------------------
(a) Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and other
assistance, as provided generally at any time with respect to peer executives of
the Company and its affiliated companies; provided that in no event shall
Executive have less than one full time assistant devoted solely to legal
services to the Company. The Company will also pay costs of moving Executive's
files, documents, furniture and other office furnishings to its principle
offices.
(b) The Company shall (i) pay to maintain Executive's Georgia bar
license and memberships and any other state in which the Company requests
Executive to practice law, including required continuing legal education and
(ii) pay for American Bar Association, American Society of Corporate Secretaries
and other reasonable professional association membership fees.
8. Vacation. Executive shall be entitled to paid vacation in accordance
--------
with the plans, policies, programs and practices of the Company and its
affiliate companies as in effect generally at any time with respect to peer
executives of the Company and its affiliated companies, but in no event shall
Executive have less than four weeks paid vacation.
9. Expenses. The Company will promptly pay or reimburse Executive for all
--------
reasonable travel entertainment or other expenses incurred by Executive in the
furtherance of or in connection with the performance of Executive's duties
hereunder in accordance with the Company's established policies applicable to
other peer executives of the Company and its affiliated companies.
10. Assignment. This Agreement shall be binding upon and inure to the
----------
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death or incapacity, and (b) any successor or assign of the Company.
Any such successor of the Company shall be deemed substituted for the Company
under the terms of this Agreement for all purposes. As used herein, "successor"
shall include any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly
acquires all or substantially all of the assets of business of the Company. None
of the rights of Executive to receive any form of compensation payable pursuant
to this Agreement shall be assignable or transferable except through a
testamentary disposition or by the laws of descent and distribution upon the
death of Executive. Any attempted assignment, transfer, conveyance or other
disposition (other than as aforesaid) of any interest in the rights of Executive
to receive any form of compensation hereunder shall be null and void.
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree 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.
-5-
11. Notices. All notices, requests, demands and other communications
-------
called for hereunder shall be in writing and shall be deemed given if delivered
personally or via overnight delivery with proof of receipt or three (3) days
after being mailed by registered or certified mail, return receipt requested,
prepaid and addressed to the parties or their successors in interest at the
following addresses, or at such other addresses as the parties may designate by
written notice:
If to the Company: Airgate PCS, Inc.
Xxxxxx Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Board of Directors;
If to Executive: 0000 Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000.
12. Restrictions on Conduct of Executive.
------------------------------------
(a) General. Executive and the Company understand and agree that the
-------
purpose of the provisions of this Section 12 is to protect legitimate business
interests of the Company, as more fully described below, and is not intended to
eliminate Executive's post-employment competition with the Company per se, nor
is it intended to impair or infringe upon Executive's right to work, earn a
living, or acquire and possess property from the fruits of her labor. Executive
hereby acknowledges that the post-employment restrictions set forth in this
Section 12 are reasonable and that they do not, and will not, unduly impair her
ability to earn a living after the termination of this Agreement. Therefore,
subject to the limitations of reasonableness imposed by law, Executive shall be
subject to the restrictions set forth in this Section 12.
(b) Definitions. The following capitalized terms used in this
-----------
Section 12 shall have the meanings assigned to them below, which definitions
shall apply to both the singular and the plural forms of such terms:
"Competitive Services" means building, operating, managing and selling
--------------------
customer access through a wireless mobility communications (voice and data)
network.
"Confidential Information" means all information regarding the
------------------------
Company, its activities, business or clients that is the subject of reasonable
efforts by the Company to maintain its confidentiality and that is not generally
disclosed by practice or authority to persons not employed by the Company, but
that does not rise to the level of a Trade Secret. "Confidential Information"
shall include, but is not limited to, financial plans and data concerning the
Company; management planning information; business plans; operational methods;
market studies; marketing plans or strategies; product development techniques or
plans; customer lists; details of customer contracts; current and anticipated
customer requirements; past, current and planned research and development;
business acquisition plans; and new personnel acquisition plans. "Confidential
Information" shall not include information that has become generally available
to the public by the act of one who has the right to disclose such information
without
-6-
violating any right or privilege of the Company. This definition shall not limit
any definition of "confidential information" or any equivalent term under state
or federal law.
"Determination Date" means the date of termination of Executive's
------------------
employment with the Company for any reason whatsoever or any earlier date
(during the Employment Period) of an alleged breach of the Restrictive Covenants
by Executive.
"Person" means any individual or any corporation, partnership, joint
------
venture, limited liability company, association or other entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
---------------------------
shareholder, joint venturer, investor, member, trustee, director, officer,
manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom the Company has sold
-------------------
its products or services or solicited to sell its products or services during
the twelve (12) months prior to the Determination Date.
"Protected Employees" means employees of the Company who were employed
-------------------
by the Company at any time within six (6) months prior to the Determination
Date.
"Restricted Period" means the Employment Period and a period extending
-----------------
two (2) years from the termination of Executive's employment with the Company.
"Restrictive Covenants" means the restrictive covenants contained in
---------------------
Section 12(c) hereof.
"Trade Secret" means all information, without regard to form,
------------
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, distribution lists or a
list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of confidential information
that constitutes a "trade secret(s)" under the common law or statutory law of
the State of Georgia.
(c) Restrictive Covenants.
---------------------
(i) Restriction on Disclosure and Use of Confidential Information
-------------------------------------------------------------
and Trade Secrets. Executive understands and agrees that the Confidential
-----------------
Information and Trade Secrets constitute valuable assets of the Company and
its affiliated entities, and may not be converted to Executive's own use.
Accordingly, Executive hereby agrees that Executive shall not, directly or
indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by the Company any
Confidential Information, except as may be necessary for the performance of
executive's
-7-
duties with the Company or its affiliated companies, and Executive shall
not, directly or indirectly, at any time during the Restricted Period use
or make use of any Confidential Information in connection with any business
activity other than that of the Company. Throughout the term of this
Agreement and at all times after the date that this Agreement terminates
for any reason, Executive shall not directly or indirectly transmit or
disclose any Trade Secret of the Company to any Person, and shall not make
use of any such Trade Secret, directly or indirectly, for herself or for
others, without the prior written consent of the Company, except as may be
necessary for the performance of Executive's duties with the Company or its
affiliated companies. The parties acknowledge and agree that this Agreement
is not intended to, and does not, alter either the Company's rights or
Executive's obligations under any state or federal statutory or common law
regarding trade secrets and unfair trade practices.
Anything herein to the contrary notwithstanding, Executive shall not be
restricted from disclosing or using Confidential Information that is required to
be disclosed by law, court order or other legal process; provided, however, that
-------- -------
in the event disclosure is required by law, Executive shall provide the Company
with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by Executive.
(ii) Nonsolicitation of Protected Employees. Executive
--------------------------------------
understands and agrees that the relationship between the Company and each
of its Protected Employees constitutes a valuable asset of the Company and
may not be converted to Executive's own use. Accordingly, Executive hereby
agrees that during the Restricted Period Executive shall not directly or
indirectly on Executive's own behalf or as a Principal or Representative of
any Person or otherwise solicit or induce any Protected Employee to
terminate his or her employment relationship with the Company or to enter
into employment with any other Person.
(iii) Restriction on Relationships with Protected Customers.
-----------------------------------------------------
Executive understands and agrees that the relationship between the Company
and each of its Protected Customers constitutes a valuable asset of the
Company and may not be converted to Executive's own use. Accordingly,
Executive hereby agrees that, during the Restricted Period, Executive shall
not, without the prior written consent of the Company, directly or
indirectly, on Executive's own behalf or as a Principal or Representative
of any Person, solicit, divert, take away or attempt to solicit, divert or
take away a Protected Customer for the purpose of providing or selling
Competitive Services; provided, however, that the prohibition of this
-------- -------
covenant shall apply only to Protected Customers with whom Executive had
Material Contact on the Company's behalf during the twelve (12) months
immediately preceding the termination of her employment hereunder. For
purposes of this Agreement, Executive had "Material Contact" with a
Protected Customer if (a) she had business dealings with the Protected
Customer on The Company's behalf; (b) she was responsible for supervising
or coordinating the dealings between the Company and the Protected
Customer; or (c) she obtained Trade Secrets or Confidential Information
about the customer as a result of her association with the Company.
-8-
(d) Enforcement of Restrictive Covenants.
------------------------------------
(i) Rights and Remedies Upon Breach. In the event Executive
-------------------------------
breaches, or threatens to commit a breach of, any of the provisions of the
Restrictive Covenants, the Company shall have the right and remedy to
enjoin, preliminarily and permanently, Executive from violating or
threatening to violate the Restrictive Covenants and to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of the
Restrictive Covenants would cause irreparable injury to the Company and
that money damages would not provide an adequate remedy to the Company.
Such equitable right and remedy shall be in addition to, and not in lieu
of, any other rights and remedies available to the Company at law or in
equity. In no event shall an asserted violation of the provisions of this
section 12 constitute a basis for deferring or withholding any amounts
otherwise payable to Executive under this Agreement.
(ii) Severability of Covenants. Executive acknowledges and agrees
-------------------------
that the Restrictive Covenants are reasonable and valid in time and scope
and in all other respects. The covenants set forth in this Agreement shall
be considered and construed as separate and independent covenants. Should
any part or provision of any covenant be held invalid, void or
unenforceable in any court of competent jurisdiction, such invalidity,
voidness or unenforceability shall not render invalid, void or
unenforceable any other part or provision of this Agreement. If any portion
of the foregoing provisions is found to be invalid or unenforceable by a
court of competent jurisdiction because its duration, the territory, the
definition of activities or the definition of information covered is
considered to be invalid or unreasonable in scope, the invalid or
unreasonable term shall be redefined, or a new enforceable term provided,
such that the intent of the Company and Executive in agreeing to the
provisions of this Agreement will not be impaired and the provision in
question shall be enforceable to the fullest extent of the applicable laws.
13. Entire Agreement. This Agreement and the documents referenced herein
----------------
represent the entire agreement and understanding between the Company and
Executive concerning the subject matter hereof, and supersede and replace any
and all prior agreements and understandings concerning such subject matter.
14. Arbitration and Equitable Relief.
--------------------------------
(a) To The extent permitted by applicable law, Executive agrees that
any dispute or controversy arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance,
breach or termination thereof shall be settled by arbitration to be held in
Xxxxxx County, Georgia, in accordance with the National Rules for the Resolution
of Employment Disputes then in effect of the American Arbitration Association
(the "Rules"). The arbitrator may grant injunctions or other relief in such
dispute or controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court having jurisdiction.
-9-
(b) The arbitrator shall apply Georgia law to the merits of any
dispute or claim, without reference to rules of conflict of law.
(c) EXECUTIVE HAS READ AND UNDERSTANDS SECTION 14, WHICH DISCUSSES
ARBITRATION. EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EMPLOYEE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS: (i) ANY AND
ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT; BREACH OF CONTRACT, BOTH
EXPRESS OR IMPLIED; BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, BOTH
EXPRESS AND IMPLIED; NEGLIGENT OR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
NEGLIGENT OR INTENTIONAL MISREPRESENTATION; NEGLIGENT OR INTENTIONAL
INTERFERENCE WITH CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL, STATE OR MUNICIPAL
STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF
1967, THE AMERICANS WITH DISABILITIES ACT OF 1990, AND THE FAIR LABOR STANDARDS
ACT, (iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER 8 LAWS AND REGULATIONS
RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
(d) Notwithstanding any provision herein to the contrary, this
Section 14 shall not apply to any dispute or controversy arising under Section
12 (entitled "Restrictions on Employment") or the interpretation, validity,
construction, performance, breach or termination thereof.
15. Severability. In the event that any provision hereof becomes or is
------------
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
16. No Oral Modification, Cancellation or Discharge. This Agreement may
-----------------------------------------------
only be amended, canceled or discharged in writing signed by Executive and the
Company.
17. Withholding. The Company shall be entitled to deduct or withhold, or
-----------
cause to be deducted or withheld, from payment any amount of withholding taxes
or other amounts required by law with respect to payments made to Executive in
connection with her employment hereunder.
18. Governing Law. This Agreement shall be governed by the laws of the
-------------
State of Georgia.
-10-
19. Acknowledgment. Executive acknowledges that she has had the opportunity
--------------
to discuss this matter with and obtain advice from her private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
20. Gender. Wherever the context requires, the masculine or feminine gender
------
shall include the other gender, and the singular shall include the plural and
vice versa.
21. Representations and Warranties. Executive hereby represents and
------------------------------
warrants to the Company that Executive is not subject to any agreement,
including but not limited to, a non-compete agreement, restrictive covenant, or
disclosure agreement, with a former employer that would prohibit Executive from
performing her job responsibilities at the Company.
(signatures on following page)
-11-
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below.
AIRGATE PCS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
Date: September 1, 2000
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
Date: September 1, 2000
-12-
