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EXHIBIT 10.29
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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 XXXXX XXXXXXXX, an
individual residing at Lubbock, Texas (the "Employee").
WITNESSETH:
WHEREAS, the parties entered into an employment agreement as of October
1, 1998; 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 President and Chief Operating Officer ("COO") pursuant to this
Agreement, for the period from October 1, 1999, (the "Commencement Date") until
September 30, 2003, 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") 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 President and COO during the term of his employment, pursuant to
this Agreement, the Company will provide the Employee with the following
compensation:
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(a) BASE SALARY. The Company will pay the Employee a base
salary at the annual rate of $175,000.00, payable periodically
but no less often than semi-monthly, in substantially equal
amounts, in accordance with the 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) $15,000.00 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) $15,000.00 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. Any options granted to the Employee under
his prior employment agreement shall be canceled, and the
Employee shall have no further rights with respect to those
options. It is the Company's intention to assign its rights
and obligations under this Agreement to Alamosa PCS Holdings,
Inc. ("Holdings") and become a wholly-owned subsidiary of
Holdings. If, on June 30, 2000, the Company or its successor
in a merger, consolidation or acquisition, has not become a
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wholly-owned subsidiary of Alamosa PCS Holdings, Inc., a
Delaware corporation ("Holdings"), then on said date the
Company will convert the membership interests in the Company
to forty-eight million five hundred thousand (48,500,000)
membership units, and shall grant to the Employee options to
purchase nonvoting membership units in the Company as follows:
(1) First Option. An option (the "First Option") to
purchase two hundred forty-two thousand five hundred
(242,500) membership units in the Company at a per
unit purchase price equal to One Dollar and Fifteen
Cents ($1.15), said First Option to be fully vested
and immediately exercisable by the Employee, and
thereafter be exercisable at any time until January 5,
2009, in accordance with the option agreement to be
entered into between the Company and the Employee as
of June 30, 2000, upon terms and conditions
substantially similar to the terms and conditions of
the Nonqualified Stock Option Agreement entered into
by the Employee pursuant to the Alamosa PCS Holdings,
Inc. 1999 Long-Term Incentive Plan.
(2) Second Option. An option (the "Second Option") to
purchase one million four hundred fifty-five thousand
(1,455,000) membership units in the Company at a per
unit purchase price equal to Fifteen Dollars ($15.00),
said Second Option, subject to Section 6 hereof, to
vest and be exercisable by the Employee in four (4)
equal installments of three hundred sixty-three
thousand seven hundred fifty (363,750) membership
units each on September 30, 2000, September 30, 2001,
September 30, 2002, and September 30, 2003,
respectively, and thereafter be exercisable at any
time until January 5, 2009, in accordance with the
option agreement to be entered into between the
Company and the Employee as of June 30, 2000, upon
terms and conditions substantially similar to the
terms and conditions of the Nonqualified Stock Option
Agreement entered into by the Employee pursuant to the
Alamosa PCS Holdings, Inc. 1999 Long-Term Incentive
Plan, including but not limited to full vesting of the
Second Option upon a Change of Control as defined in
Section 6(g)(2) hereof.
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
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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 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 at
the standard mileage rate allowed by the Internal
Revenue Service ("IRS") for the taxable year and set
forth in the appropriate IRS publication.
(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 $600.00 per month as a vehicle
allowance.
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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
terminated by the Company for any reason other than cause or non-performance at
any 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.
(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
President and COO 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.
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(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.
6. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION ON EMPLOYEE'S DEATH OR
DISABILITY. If the Employee's employment is terminated prior
to September 30, 2003, because of the Employee's death or
disability, (i) subject to Section 6(h) 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 September 30 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 September 30
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 September 30 and whose denominator is
twelve (12), 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, 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.
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(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 September 30, 2003, for any reason
other than for cause or non-performance of Employee,
(i) subject to Section 6(h) 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 and the option agreement referred
to therein; (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
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
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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 September 30, 2003, for cause, (i) subject to Section 6(h)
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.
(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 September 30, 2003, for any reason other
than for cause or Employee's death or disability, (i) subject
to Section 6(h) 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 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; 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.
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(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
September 30, 2003, for cause (i) subject to Section
6(h) 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 September 30 of a given year, those options which
would have vested and become exercisable pursuant to
Section 2(c) hereof on the September 30 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
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 September 30, 2003, 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
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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 September 30, 2003, for
non-performance by the Employee (i) subject to Section 6(h)
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 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; 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) CONSEQUENCES OF TERMINATION BY THE COMPANY FOLLOWING A
CHANGE OF CONTROL.
(1) If the Employee's employment is terminated by the
Company prior to September 30, 2003, for any reason
other than for cause (as defined in Section 5(b)
hereof) within one (1) year following a Change of
Control, (i) subject to Section 6(h) 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 and the option agreement referred
to therein; (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 the unpaid
balance of the base salary which would have been
payable to Employee through September 30, 2003; 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) The term "Change of Control" shall have the same
meaning as defined in the Alamosa PCS Holdings, Inc.
1999 Long-Term Incentive Plan.
(3) Any payment pursuant to clause (g)(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
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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.
(h) 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
September 30, 2002, 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
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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 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 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 an 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.
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14
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 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.
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15
(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 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 Section 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 Section
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
EMPLOYMENT AGREEMENT Page 15 of 22
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16
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
Section 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:
(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.
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17
(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 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
EMPLOYMENT AGREEMENT Page 17 of 22
ALAMOSA PCS LLC and Xxxxx Xxxxxxxx
18
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 President and Chief Operating Officer
("COO") 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 First Option Exercise Date (as defined in that
certain Nonqualified Stock Option Agreement between Employee and Holdings
executed contemporaneously with this Agreement), 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 President and Chief
Operating 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 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.
EMPLOYMENT AGREEMENT Page 18 of 22
ALAMOSA PCS LLC and Xxxxx Xxxxxxxx
19
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: Xxxxx Xxxxxxxx
----------------------------
----------------------------
With Copy to: Xxxxx Xxxxxxxxx Xxxxxxx
International Bank of Commerce Centre
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
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 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
EMPLOYMENT AGREEMENT Page 19 of 22
ALAMOSA PCS LLC and Xxxxx Xxxxxxxx
20
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 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.
DATED this 18th day of January, 2000, to be effective October 1, 1999.
EMPLOYMENT AGREEMENT Page 20 of 22
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21
COMPANY
ALAMOSA PCS LLC
By: /s/ XXXXX XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
EMPLOYEE
/s/ XXXXX XXXXXXXX
--------------------------------------
XXXXX XXXXXXXX
EMPLOYMENT AGREEMENT Page 21 of 22
ALAMOSA PCS LLC and Xxxxx Xxxxxxxx
22
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
/s/ XXXXX XXXXXXXXX XXXXXXX
--------------------------------------
Xxxxx Xxxxxxxxx Xxxxxxx
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
EMPLOYMENT AGREEMENT Page 22 of 22
ALAMOSA PCS LLC and Xxxxx Xxxxxxxx
