Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, entered into and effective as of the 29th day
of November 1999 by and between UbiquiTel Holdings, Inc., a Delaware corporation
(the "Company") and Xxxxxx X. Xxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee in the position of Chief
Executive Officer, and Employee desires to serve in such capacity on behalf of
the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements hereinafter set forth, the Company and Employee hereby
agree as follows:
1. Employment.
(a) Term. This Agreement begins on the date hereof, and terminates
on the date three years from the date hereof, unless sooner terminated by either
party as hereinafter provided.
(b) Duties. Employee shall serve as the Chief Executive Officer
("CEO") of the Company and in such capacity shall perform the functions and jobs
described on Exhibit A. Employee shall also serve as a member of the board of
directors of the Company pursuant to the terms and conditions of a Stockholders'
Voting Agreement to be entered into by and among the Company, Employee and the
other holders of the capital stock of the Company, without additional
compensation.
(c) Best Efforts. During the period of his employment, Employee
shall devote his best efforts and such time and attention as shall be necessary
to promote the business and affairs of the Company and its affiliated companies,
as such business and affairs now exist or hereafter may be changed or
supplemented, and shall, during the term of his employment hereunder, be engaged
in other business activities only to the extent that such activities do not
interfere or conflict with his obligations to the Company hereunder, including,
without limitation, obligations pursuant to the Noncompetition and
Confidentiality Agreement entered into pursuant to Section 6 below. The
foregoing shall not be construed as preventing Employee from investing his
assets in such form or manner as will not require any significant services on
his part in the operation of the affairs of the businesses or entities in which
such investments are made; provided, however, that Employee shall not invest in
any business competitive with the Company, except that Employee shall be
permitted to own not more than 5% of he stock of those companies whose
securities are listed on a national securities exchange or on the NASDAQ system.
The Company agrees that it will not require Employee to relocate his principal
residence during the period of his employment hereunder.
2. Compensation
(a) As compensation for the services to be rendered hereunder, the
Company shall pay Employee an annual gross salary of Two Hundred Thousand
Dollars ($200,000.00) for the first year of the term hereof. This amount shall
be increased by 5% for each subsequent year.
The salary will be paid in accordance with the Company's existing payroll
policies, and shall be subject to applicable withholding taxes. Employee will
also be eligible for payments from the Company in respect of bonuses in amounts
and at such times as determined in the sole discretion of the disinterested
members of the Company's Board of Directors.
(b) Management Stock Incentive Plan. Company also has set aside
1,275,000 shares of the Company's common stock, which represents 5% of the fully
diluted equity capitalization of the Company, as incentive compensation for
Employee (it being understood that such 5% is part of the 8.8% interest in the
Company's common stock that as of the date of this Agreement the Company has
reserved for management employees generally). The Company hereby grants an
option to purchase such stock, at the option price of $1.00 per share, with
vesting ratably over a period of three years, provided that full vesting would
occur upon termination of Employee's employment hereunder by the Company without
Cause (as defined in Section 5.1.(3) below) or by Employee pursuant to Section
5(b) hereof. The Company shall deliver an option agreement reflecting the
foregoing terms and such other terms and conditions mutually acceptable to
Employee and the disinterested members of the Company's Board of Directors, as
soon as practicable following the date hereof.
3. Expenses. The Company will reimburse Employee for all necessary and
reasonable travel, entertainment and other business expenses incurred by him in
the performance of his duties hereunder, upon receipt of a signed itemized list
of such expenditures with appropriate backup documentation, or in accordance
with such other reasonable accounting procedures as the Company may adopt
generally from time to time. The Company will also reimburse Employee for legal
fees incurred in connection with his employment by the Company, in an amount up
to $3,000, upon receipt of appropriate documentation of such fees.
4. Vacation; Benefits. Employee shall be entitled to four (4) weeks' paid
vacation per calendar year, which amounts shall not compound or accrue from year
to year if unused. Employee shall be entitled to paid holidays in accordance
with the Company's holiday policy and to participate in the Company's health,
life insurance, 401(k) plan, long and short term disability, dental, retirement,
and medical programs, if any, as well as executive bonus, benefit or incentive
programs, if any, pursuant to their respective terms and conditions. Nothing in
this Agreement shall preclude the Company or any affiliate of the Company from
terminating or amending any employee benefit plan or program from time to time
after the effective date of this Agreement.
5. Termination.
(a) Termination by the Company.
(1) For Cause. The Company may terminate Employee's employment
hereunder any time for "cause," as herein defined, in which case the Company's
sole liability to Employee shall be for unpaid salary and benefits through the
date of termination and unreimbursed expenses incurred by Employee pursuant to
Sections 3 and 4 above.
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(2) Without Cause. The Company also may terminate Employee's
employment without cause at any time, but in that event must pay to Employee an
amount equal to one year's salary and benefits, plus all unreimbursed expenses
incurred by Employee pursuant to Sections 3 and 4 above. In addition, all
unvested stock options granted to Employee pursuant to Section 2(b) above shall
immediately vest upon such termination without cause.
(3) "Cause" Defined. As used in this Agreement, termination
for "cause" shall mean termination as a result of:
(i) Employee's failure to cure any default, breach or
failure to perform any of his material obligations under the terms of this
Agreement within thirty (30) days' written notice from the Company describing in
detail Employee's default, breach or failure to perform, unless a failure to
cure more promptly than such thirty (30) day period would result in a material
adverse effect on the Company, in which case that cure period shall be equal to
the time required to avoid a material adverse effect on the Company; or
(ii) misconduct, including but not limited to
dishonesty, insubordination, or other acts on Employee's part materially
detrimental to the goodwill of the Company or materially damaging to the
Company's relationships with its customers, employees or others with whom it
does business; or
(iii) acts of moral turpitude which, in the reasonable
opinion of the disinterested members of the Company's Board of Directors are
materially harmful to the business or reputation of the Company; or
(iv) refusal to obey reasonable and lawful directions of
the disinterested members of the Company's Board of Directors.
(b) Termination by Employee. (1) Employee may terminate his
employment hereunder in the event that the Company fails to cure any breach of,
or failure to perform, one or more of its material obligations under this
Agreement after thirty (30) days' written notice from Employee to the Board of
Directors of the Company describing in detail the Company's breach or failure to
perform. In the event of any such termination, the Company's sole obligations to
Employee shall be for unpaid salary and reimbursement of expenses pursuant to
Section 3 through the effective date of termination specified in Employee's
notice and for vesting of unvested stock rights pursuant to Section 2(b) above.
(2) Employee may resign his employment hereunder other than for breach or
failure to perform by the Company at any time by giving thirty (30) days'
written to the Board of Directors. In the event of any such termination, the
Company's sole obligations to Employee shall be for unpaid salary and benefits
and reimbursement of expenses pursuant to Sections 3 and 4 and for vesting of
unvested stock options through the effective date of termination specified in
Employee's notice.
(c) Termination by Death or Disability. In the event of Employee's
death or permanent disability during the term of this Agreement, his employment
shall terminate on the date of death or date of permanent disability (as
determined by the disinterested members of the Board of Directors). In the event
of such termination, the Company's sole obligations to
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Employee (or Employee's estate) shall be for unpaid salary and benefits and
reimbursement of expenses pursuant to Sections 3 and 4 through the effective
date of termination and for vesting of all unvested stock options pursuant to
Section 2(b) above.
6. Restrictive Covenants. As a condition to, and in consideration of, the
execution of this Agreement by the Company, Employee agrees to be bound by the
terms of the Noncompetition and Confidentiality Agreement attached hereto as
Exhibit B.
7. Enforcement. Employee acknowledges that the services to be rendered
under this Agreement by him are special, unique and of an extraordinary
character, and that irreparable injury will result to the Company and its
business and property if he breaches any of the covenants and agreements
contained in this Agreement or in any of the Exhibits hereto. Therefore,
Employee expressly agrees that in the event of any such breach of that covenant
or agreement by Employee or any of Employee's partners, agents, employers,
employees, or any persons acting for or with Employee, in addition to any other
rights or remedies available to it. At law or in equity, other than specific
performance to enforce the obligation of Employee to provide services to the
Company.
8. Survival. The provisions of Sections 6 and 7 shall survive, along with
Exhibit B, the termination of this Agreement.
9. Return of Documents. Upon termination of his employment, Employee
agrees to return all documents belonging to the Company in his possession
including, but not limited to, contacts, agreements, licenses, business plans,
equipment, software, software programs, products, work-in-progress, source code,
object code, computer disks, books, notes and all copies thereof, whether in
written, electronic or other form. In addition, Employee shall certify to the
Company in writing as of the effective date of termination that none of the
assets or business records belonging to the Company are in his possession,
remain under his control or have been transferred to any third person.
10. Effect of Waiter. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach hereof. No waiver shall be valid unless in writing.
11. Assignment. This Agreement may not be assigned by either party without
the express prior written consent of the other party hereto, except that the
Company may assign this Agreement to any subsidiary or affiliate of the Company,
provided that no such assignment shall relieve the Company of its obligations
hereunder without the written consent of Employee.
12. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto and supersedes any and all prior agreements and
understandings concerning Employee's employment by the Company. This Agreement
may be changed only by a written document signed by Employee and the Company.
13. Severability. If any one or more of the provisions, or portions of any
provision, of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or
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enforceability of the remaining provisions or parts hereof shall not in any way
be affected or impaired thereby.
14. Governing Law/Jurisdiction. This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive and procedural laws
of the State of Delaware without regard to rules governing conflicts of law.
15. Arbitration. Any controversy, claim or dispute arising out of or
relating to this Agreement or Employee's employment by the Company, including,
but not limited to, common law and statutory claims for discrimination, wrongful
discharge, and unpaid wages, shall be resolved by arbitration in Wilmington,
Delaware pursuant to then prevailing American Arbitration Association commercial
arbitration rules of Dispute Resolution and Arbitration procedures; provided,
that nothing in this subsection shall be construed as precluding the Company
from bringing an action for injunctive or other equitable relief. The Company
may elect to proceed to court without first resorting to arbitration in the
event that Employee breaches any provision of the Noncompetition and
Confidentiality Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
DATE: THE COMPANY:
-------------------------------
UbiquiTel Holdings, Inc.
By:
----------------------------------
Its:
---------------------------------
DATE: Nov. 29, 1999
------------------------------ EMPLOYEE:
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Exhibits:
A - Job Description
B - Noncompetition and Confidentiality Agreement
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EXHIBIT A
Job Descripton Suggested by Employee
Employee will be President and Chief Executive Officer of the Company and a
member of the Board of Directors of the Company. In such capacity, he will have
overall responsibility for the implementation of the Company's business plan
(the "Plan") and general authority over the management and supervision of the
business and operations of the Company, subject to control of the Board. He
shall also perform such other duties as may be assigned to him by the Board and
the Bylaws. The Employee's powers and duties will include the following:
Approval of all ordinary course of business matters of the Company
unless specifically limited or reserved by the Board;
In addition to matters covered by the Plan, approval of any project,
or set of related projects, involving total capital expenditures of
less than $1,000,000;
In addition to matters covered by the Plan, approval of any
operating lease obligation, or set of related lease obligations,
involving expenditures over the life of the obligations of less than
$1,000,000;
In addition to matters covered by the Plan, approval of any
commercial contract, or set of related commercial contracts, in the
ordinary course of business of the Company for the sale of products
of the Company involving commitments of, or assumption of
liabilities by, the Company during the term of such contract(s) less
than $1,000,000;
The hiring and firing of employees and contractors of the Company,
subject to notification and approval of the Board regarding hiring
and firing of officers and key employees of the Company;
Recommendation of performance goals and awards for employees of the
Company other than Employee under the incentive compensation plans
of the Company;
Approval of individual merit salary increases, excluding those of
Company officers, subject to the Board's approval of overall annual
merit salary adjustments.
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Exhibit B
Noncompetition and Confidentiality Agreement
In consideration of the employment of Employee, and the compensation,
training and access to confidential information provided to Employee, and in
consideration of the terms and conditions contained herein and for other good
and valuable considerations, the Company and Employee agree as follows:
Business. The Company is a Sprint PCS affiliate and is in the business of
offering, providing, marketing and procuring customers for commercial mobile
radio service, including personal communications service ("PCS") and other
wireless and similarly situated voice, radio, telephone, paging and messaging
services and ancillary services (the "Business").
Confidentiality. Employee acknowledges and understands that Employee will
be given access to certain confidential, secret and proprietary information and
materials owned by the Company or which relate to the Company's Business,
including but not limited to, all information not generally known to the public
that relates to the business, technology, subscribers, finances, plans,
proposals or practices of the Company, and it includes, without limitation, the
identity of all actual and prospective subscribers and customers, customer
lists, files and all information relating to individual customers and
subscribers, including their address and phone numbers, all business plans and
proposals, all marketing plans and proposals, all technical plans and proposals,
all research and development, all budgets, wage and salary information, and
projections, all nonpublic financial information, information on suppliers, and
information on all persons for whom the Company performs services or to whom the
Company makes sales during the course of the Company's business, and all other
information the Company designates as "confidential" (hereafter the
"Confidential Information"). The Company and Employee each acknowledge and agree
that all Confidential Information shall be considered trade secrets of the
Company and shall be entitled to all protections given by law to trade secrets.
Employee shall not disclose any Confidential Information, or use it for any
purpose, other than in advancing the business interests of the Company.
Confidential Information shall apply to every form in which information shall
exist, whether written, film, tape, computer disk or other form of media,
including original materials and any copies thereof.
Immediately upon termination of employment with the Company for any
reason, Employee shall deliver to the Company all property of the Company,
including but not limited to Confidential Information, all books, records, notes
or other writings or media containing any Confidential Information, and all
copies thereof. Employee shall also, unless otherwise directed in writing by the
Company, promptly erase all Confidential Information from all computers and
other information storage devices and media under Employee's direct or indirect
control, or return such devices or media to the Company.
Covenant Not to Compete. Employee agrees that, during the term of
Employee's employment and for a period of one year immediately following the
termination of such employment for any reason whatsoever (the "Restricted
Period"), Employee shall not, either directly or indirectly, with or without
compensation, individually or as employee, broker, agent,
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consultant, contractor, advisor, solicitor, greater than 5% stockholder, trust
beneficiary, proprietor, partner, or person interested in, affiliated with or
rendering services to any other entity, engage in, provide, offer to provide, or
assist anyone in providing, services to or for a business that provides wireless
telecommunications services similar to those services offered by the Company in
any territory in which the Company is a Sprint PCS affiliate.
Non-Solicitation of Customers and Employees. Employee further agrees that
during that portion of the Restricted Period following termination, Employee
shall not interfere with the established business relationship between the
Company and its Customers, shall not call upon any Customer of the Company's
Business for the purpose of soliciting, selling, providing or delivering
services or products of the kind which are the subject of the Company's
Business, and shall not render or provide any service to any Customer, including
any person who was a Customer of the Company during the time that Employee was
employed, with the Company, that is the same as or similar to the service
provided in the Company's Business, Employee further agrees that during the
Restricted Period, neither Employee nor any person or entity otherwise connected
with Employee shall act, directly or indirectly, as a reseller of any such
services in the area.
Employee further agrees that while employed by the Company and during the
Restricted Period, Employee shall not directly or indirectly induce or attempt
to influence any employee of the Company to terminate his/her employment with
the Company or to work for Employee or any other person or entity.
Reasonableness of Restrictions. Employee acknowledges that the
restrictions contained in this Agreement are reasonable in time, scope and
geographic restraints, and do not unreasonably restrict Employee's ability to
obtain other employment. Employee further warrants that the restrictions do not
impose an undue hardship on Employee, and do not deprive Employee of an ability
to earn a living.
Remedies for Breach of Covenants. In the event of any breach or threatened
breach of any of the provisions herein, in addition to any other rights or
remedies available to the Company, the Company shall have the right to seek
monetary damages and equitable relief, including specific performance by means
of temporary, preliminary or permanent injunctions against Employee or against
Employee's partners, agents, representatives, servants, employers, employees,
family members and/or any and all persons acting directly or indirectly by or
with Employee, to prevent or restrain such breach. With respect to any such
equitable actions or proceedings, Employee agrees that no adequate legal remedy
exists, and hereby waives any defense that an adequate remedy at law exists and
any requirement that the Company prove damages. Employee further waives any
requirement that the Company furnish any bond or other security, and agrees that
to the extent a bond is required by law, it shall be in the amount of $100.00.
Employee agrees that the Company's rights to seek injunctive and other equitable
relief shall be and are cumulative and not exclusive and shall be in addition to
any other remedies that the Company may have.
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Choice of Law; Attorneys' Fees. This Agreement will be governed by the
laws of the State of Delaware. If any action is necessary to enforce or
Interpret the terms of this Agreement, each party shall bear such party's own
expenses of litigation, including without limitation, attorneys and experts fees
and costs, and any costs of appeal.
Business Opportunities. Employee agrees that he shall promptly disclose to
the Company any business opportunity of which Employee becomes aware during his
employment with the Company which relates to any product or services planned,
under development, developed, produced or marketed by the Company and which
employee becomes aware in the course of or as a result of Employee's employment
with the Company. Employee agrees that he will not take advantage of or divert
any such opportunity for the direct or indirect gain, profit or benefit of
Employee or any other person or entity.
Other Restrictions. Employee warrants that he/she is not subject to any
restrictive covenants or other legal disability, which would prevent Employee
from entering into this Agreement and from complying with its provisions to
their fullest extent. Employee understand and agrees that Employee is not
expected to, and shall not disclose trade secret or confidential information
from any previous employer or any other party.
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