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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
This 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 X. Xxxx 000, Xxxxxxx, Xxxxx 00000
(the "Company"), and XXX XXXXX, an individual residing at Lubbock, Texas (the
"Employee").
WITNESSETH:
WHEREAS, the parties are entering into this Agreement to set forth and
confirm their respective rights and obligations with respect to the Employee's
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 employs the Employee as
Chief Technology Officer. The term of the Employee's employment, pursuant to
this Agreement, will commence on October 29, 1998, (the "Commencement Date") and
will continue for a period of three (3) years, or the termination of this
Agreement, as described in Section 5 hereof, whichever shall occur first. The
Employee hereby accepts such 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
Chief Executive Officer or the Chief Operating Officer of the Company.
2. COMPENSATION. In consideration of all services rendered by the
Employee during the term of his employment, pursuant to this Agreement, the
Company will provide the Employee with the following compensation:
(a) BASE SALARY. The Company will pay the Employee a base salary at
the annual rate of $90,000.00, payable semi-monthly in accordance
with the Company's payroll practices from time to time in effect.
The Company will review the Employee's salary at least once each
year and may, in its discretion, increase the Employee's salary.
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 beyond the term of employment set forth herein, or on the
Employee to remain in the employ of the Company or any of its
subsidiaries, beyond the term of employment set forth herein.
(b) BONUS. In addition to the Employee's base salary, for each
quarterly period the Employee is employed by the Company, beginning
January 1, 1999, the Employee is entitled to a Quarterly Bonus of
$7,500.00 for each calender quarter period in which the milestones
(the "Milestones") set forth in the attached Exhibit "A", which is
incorporated by this reference as if copied herein in full, are met
or exceeded. This bonus shall be referred to
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as the "Quarterly Bonus". This Quarterly Bonus will be paid within
forty-five (45) days of the end of each calendar quarter. If the
Milestones are not met, Employee is entitled to a portion of the
Quarterly Bonus, calculated based on the pro rata portion of the
Milestones met. For each quarterly period in which the Exceptional
Milestones, as set forth in Exhibit "A", are met or exceeded,
Employee is entitled to an additional $7,500.00 Bonus. This
additional Bonus shall be referred to as the "Exceptional Quarterly
Bonus". This Exceptional Quarterly Bonus will be paid within
forty-five (45) days of the end of each calendar quarter. If the
Exceptional Milestones are not met, Employer is entitled to a
portion of the Exceptional Bonus, calculated based on the prorata
portion of the Exceptional Milestones met.
(c) EMPLOYEE INCENTIVE OWNERSHIP PLAN. The Employee shall be granted
an Incentive Ownership Plan. This Incentive Ownership Plan shall
consist of an Option granted to the Employee to purchase an interest
in the Company at the price set forth in this Incentive Ownership
Plan. This Option granted to Employee shall be an Option to purchase
Incentive Units in the Company. These Incentive Units shall be
non-voting Class II Membership in the Company, pursuant to Section
3.11(b) of the Regulations of the Company.
The Purchase Price for each category of Incentive Units is set forth
in the attached Exhibit "B", which is incorporated by this reference
as if copied herein in full. This Exhibit "B" also sets forth the
Purchase Price for each category of Incentive Units based upon the
date of the exercise of any of the Options set forth herein.
(1) Incentive Units Granted to Employee. Employee is hereby
granted the following number of Incentive Units in the
following categories, to-wit:
Category Number of Units
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Series 8 100
Series 15 100
Series 25 100
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Total Units 300
Each Incentive Unit shall represent an interest in the Company,
which interest shall be calculated as follows:
500 x 100 = % ownership interest in
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(50,000,000 plus additional capital calls) the Company
The term "additional capital calls" used above means any additional
voluntary capital contributions made, pursuant to Section 2.3 of the
Regulations of the Company.
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(2) Vesting of Option. The Option granted to Employee shall vest
over a period beginning eighteen (18) months after the Commencement
Date. On the first day following eighteen (18) months after the
Commencement Date, forty-six percent (46%) of the Option shall be
vested giving the Employee the right to purchase forty-six (46)
Units in each series. For each month of the Employee's continued
employment following the initial eighteen (18) months of the
Employees employment, Employee shall have the right to purchase an
additional three (3) Units in each series. This monthly vesting
shall continue until such time as the Employee has an Option to
purchase a maximum of 100 Units of each series as indicated above.
(3) Purchase Price. The Purchase Price (also referred to as the
"Exercise Price" or the "Strike Price") for each Unit and for each
series of Units, as of the actual date of the exercise of the
Option, shall be as shown on the attached Exhibit "B", which is
incorporated herein by this reference as if copied herein in full.
This Purchase Price as reflected in Exhibit "B" for each Unit
granted to Employee in this Employee Incentive Ownership Plan shall
not change.
(4) Expiration. All Options granted herein shall expire December 31,
2006. If Employee has not exercised all of the Options granted
herein by that date, any unexercised Options at that time will
expire and Employee will have no right to any Options of any type or
kind from and after that date.
(5) Exercise of Options. The Employee must give the Company at least
thirty (30) days notice of Employee's desire to exercise any of the
Employee's vested Options. This notice must be given to the Company
prior to November 1,2006. If the Employee gives such notice, the
Employee must either (1) pay to the Company an amount equal to the
price per Unit as shown in Exhibit "B", times the number of Units,
or (2) the Employee may notify the Company that he wishes to
exercise the Options under the Cashless Exercise Provisions outlined
below. The Employee may exercise the Option granted herein for all
or any part of the Units or series of Units granted to Employee in
this Employee Incentive Ownership Plan. After December 31, 2006,
Employee shall have no further Options of any type or kind. Employee
shall forfeit, waive and release any portion of Employee's Option
for Units not paid for or exercised by Employee by on or before
December 31, 2006. Employee may not exercise Employee's Option prior
to July 1, 2000, and may not exercise Employee's Option after
December 31, 2006. Employee may exercise this Option for all vested
Units of Employee, regardless of whether or not Employee is an
Employee of the Company.
(i) If the Employee wishes to exercise his Options
under the payment provisions, the Employee shall pay
all amounts due and payable to the Company within
sixty (60) days of Employee notifying the Company of
Employee's desire to exercise Employee's vested
Options.
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(ii) If the Employee wishes to exercise his Options
under the Cashless Exercise Provisions, he shall
notify the Company in writing at least sixty (60)
days prior to the desired exercise date. The Cashless
Exercise date may occur only at the end of the annual
accounting year of the Company. Within fifteen (15)
days of receiving notice, the Company shall appoint
an independent appraiser who is an expert in the
valuation of wireless telecommunication businesses to
prepare an estimated value for the Company within
forty-five (45) days after his appointment. This
estimated value for the Company shall be the Company
Value. Such value shall not include any provisions
for a minority or marketability discount. If the
Employee does not agree with the Company appointed
appraiser's valuation of the business, he may hire,
at his own expense, a second independent appraiser
who is an expert in the valuation of wireless
telecommunication businesses to prepare a second
valuation.
If the second valuation is within ten percent (10%)
of the valuation prepared by the Company's appointed
appraiser, the Company Value shall be the arithmetic
mean of the two (2) valuations.
If the two (2) valuations are not within ten percent
(10%) of each other, the Company and Employee will
appoint and split the cost of hiring a third
independent appraiser, who is an expert in the
valuation of wireless telecommunication businesses,
to prepare a third valuation.
If two (2) of the fair market values determined by
the appraisers are within ten percent (10%) of one
another, and the third value is not within ten
percent (10%) of the other fair market values, then
the Company Value will be the arithmetic mean of the
two (2) more closely aligned fair market values.
If none of the three (3) valuations are within ten
percent (10%) of each other, then the Company Value
will be the average of all three (3) valuations.
(iii) Using the Company Value estimated above, the
value of the Employee's Options shall be calculated.
The value of an Option shall be the value of the
Company, times the percent interest of the Company
represented by the Option, less the Exercise Price of
the Option. The percent interest of the Company
represented by the Option shall be determined as set
forth in Paragraph (1) above. The sum of all such
Option values shall be the Total Option Value.
(iv) In exchange for the Employee's Options, the
Company shall then issue to the Employee, Incentive
Units in the Company equal to the Total Option Value,
divided by the Company Value. These Incentive
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Units shall be issued prorata among any Series of
Units to which Employee may be entitled at the time
of Employee's exercise of these Cashless Exercise
Provisions.
(6) Sale of Employer. Upon the sale of the Company or upon the sale
of substantially all of the assets of the Company, all vested Units
of Employee's Option shall be considered to be exercised. In such
event, Employee will receive, as the total proceeds for Employee's
Options granted herein, the difference in the sales price of the
Company, after deducting all debts to be paid by the Company,
computed on a per Unit price or the total sales price for
substantially all of the assets of the Company, after deducting all
debts to be paid by the Company, calculated on a per Unit price,
less the applicable purchase price per Unit, as of the date of the
sale, as shown on the attached Exhibit "B", times the number of
vested units granted to Employee. This difference to be paid to
Employee shall be paid by the Company to Employee within two (2)
weeks of closing the sale. If Employee has purchased any of
Employee's Units prior to such sale, the Employee shall receive that
portion of the sales proceeds attributable to those Units actually
purchased by Employee at the time of the sale, less a prorata
deduction for any debts to be paid by Employer attributable to those
Units. Employee agrees to sign any documents necessary to convey by
closing these Units free and clear of all claims or liens of any
type or kind. If Employee has purchased some Units by the time of
the closing but also is entitled to some additional vested Units
that Employee has not yet paid for, at the date of the sale,
Employee shall be entitled to the proceeds as described above, both
for Employee's purchased and vested but not yet purchased Units.
(7) Termination of Employment. If the Employee's employment is
terminated prior to October 31, 2001, for any reason, the Company
may purchase the Employee's vested Options and its applicable Units
by paying to Employee an amount equal to the fair market value of
each vested Unit, less the Purchase Price for each vested unit as
shown on the attached Exhibit "B", as of the date that the Company
actually purchases the vested Units of Employee. This right to
purchase by the Company expires on December 31, 2006, and if the
Company has not paid to Employee the amount described above by that
time, this right to purchase by the Company shall expire.
(8) Distributions. No distributions will be paid by the Company on
any Option or vested Units under this Employee Incentive Plan, until
such time as the Employee shall have actually purchased or acquired
the Employee's vested Units or upon the sale of Employer as set
forth in Paragraph (6) above.
3. EMPLOYEE BENEFITS. The Employee will be entitled to participate in
all incentive, retirement, profit-sharing, life, medical, disability and other
benefit
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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 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 a minimum of two (2) weeks paid vacation per
year. Vacation time must be used during the year in which it accrues. Unused
vacation time may not be carried over into the next employment year. Unused
vacation time will not be paid to the Employee upon termination of the
Employee's employment.
4. REIMBURSEMENT OF EXPENSES.
(a) 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.
(b) In addition to reimbursed expenses, Employee is entitled to
$400.00 per month for a vehicle allowance, plus 18 cents per mile
for all business related mileage.
(1) Business mileage does not include commuting from Employee's
residence to the Company's headquarters.
(2) Employee is responsible for proper substantiation and
reporting of business mileage and/or actual expenses.
(3) 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.
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 without cause at any time beginning on the first day
of the thirteenth (13th) month after the Commencement Date; (c) may be
terminated by the Company for cause (as defined below) at any time.
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(a) The term "disability" means a physical or mental impairment
which renders the Employee unable to carry out the Employee's duties
under this Agreement for more than ninety (90) days in any
twelve-month period.
(b) The term "cause" means (i) the Employee's willful and continued
failure substantially to perform the Employee's duties with the
Company, (ii) any material breach of this Agreement by Employee
which is not cured within thirty (30) days after notice from the
Company thereof, (iii) commission of any act of fraud, embezzlement
or dishonesty by the Employee, (iv) any act or omission which
constitutes a breach of that certain Sprint PCS Management Agreement
dated July 17, 1998 ("the Sprint Agreement"); or (v) 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.
6. CONSEQUENCES OF TERMINATION.
(a) CONSEQUENCES OF TERMINATION FOR CAUSE. If the Employee's
employment is terminated for cause, (i) this Agreement terminates
immediately, (ii) except as may have vested or accrued or been paid
or become payable prior to the date of such termination or otherwise
required under applicable law, from and after such date, the Company
shall be under no obligation to pay the Employee any compensation
(base salary or bonus) pursuant to this Agreement, and (iii) 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.
(b) CONSEQUENCES OF TERMINATION ON EMPLOYEE'S DEATH OR DISABILITY.
If the Employee's employment is terminated because of the Employee's
death or disability, (i) this Agreement terminates immediately, (ii)
the Employee or his legal representative or estate, as the case may
be, will be entitled to receive any base salary due to the Employee
through the last day of employment, plus any accrued but unpaid
bonus, to which the Employee may have been entitled on the last day
of employment, but had not yet received, and (iii) 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.
(c) CONSEQUENCES OF TERMINATION FOR ANY REASON OTHER THAN FOR CAUSE
OR EMPLOYEE'S DEATH OR DISABILITY.
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(1) If the Employee's employment is terminated, prior to October 31,
2001, for any reason other than for cause or Employee's death or
disability, (i) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount (the "Termination
Payment") equal to the sum of any base salary due to the Employee
through the last day of employment, plus any accrued but unpaid
bonus, to which the Employee may have been entitled on the last day
of employment, but not yet received; (ii) in the event of
termination without cause, the Company will pay the Employee
severance pay equal to one (1) month's base salary; and (iii) 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 Termination Payment
a. will be in addition to any salary and bonus otherwise paid
during the fiscal year in which the Termination Event occurs;
b. will be subject to offset for any advances, amounts
receivable, loans, including accrued interest, outstanding on
the date of the Termination Event; and
c. 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.
(3) For purposes of this Agreement, the term "Termination Event"
shall mean (i) the Employee's receipt of a Non-Continuation Notice
from the Company, or, (ii) termination of the Employee's employment
by the Company for any reason other than for cause or the Employee's
death or disability, or (iii) the Employee's submission of a
Non-Continuation Notice to the Company notifying the Company of the
Employee's voluntary termination of employment.
a. "Non-Continuation Notice" means written notice from the
Employee or the Company to the other that the Employee or the
Company does not wish to continue the Employee's employment
hereunder.
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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 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 the PCS business,
including all aspects of PCS, 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 October 31, 2001, 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 or in any other individual or
representative capacity, in any business located within and/or doing business
within the Service Area as defined above, that is in competition with the
business of the Company for a period of two (2) years. 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. This Covenant Not To Compete shall not prohibit the Employee from
owning or purchasing any corporate securities that are regularly traded on a
recognized stock exchange or over-the-counter market.
8. CONFIDENTIAL INFORMATION OF EMPLOYEE. During the time of the
Employee's employment by the Company, the Company will provide to Employee
certain information that is confidential to the Company. This confidential
information will include, but not be limited to, client, customer and/or mailing
lists as well as marketing information as well as information containing other
contacts within the PCS and telecommunications industries. Such information may
also include information that may constitute a trade secret as to the Company.
This confidential information belongs to the Company and is vital to the
Company's business. The disclosure of this confidential information could be
harmful to the Company's business.
9. NO DISCLOSURE OF CONFIDENTIAL INFORMATION. The parties agree that
the Employer has a legitimate interest in protecting this confidential
information of the Company. The parties agree that the Company is entitled to
protection of its interests in this confidential information. Employee agrees
that Employee will not disclose to anyone or any third party any of the
confidential information referred to in the preceding paragraph. Employee
acknowledges that the disclosure of the above described confidential information
belonging to the Company 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-disclosure of confidential information,
that the
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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.
10. EXCEPTIONS TO NON-DISCLOSURE AND 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-disclosure of
confidential information and/or the non-competition covenants contained in this
Agreement. Employee may invest in an entity involved in the PCS or
telecommunications industries, provided that Employee is only an investor and
such investment does not in any way involve actual active control of or actual
active management of the entity. The mere investment by Employee in an entity
involved in the PCS or telecommunications industries, without any control and
without any management of the entity, will not be a violation of the
non-disclosure and non-competition covenants contained in this Agreement. While
such passive role shall not be deemed to be a breach of these covenants,
Employee shall not disclose any trade secrets of the Company to any third party
or entity.
11. DISPUTES. The Company and Employee agree to the following in regard
to any disputes between them arising under this Agreement.
(a) MEDIATION. The Company and Employee agree to mediate any dispute
arising under this Agreement. In the event of any 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 any 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, it is agreed 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
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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 feasible, may
be conducted in any city within the Service Area as defined herein
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, 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.
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(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.
(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,
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or that the other party's response to a discovery
request is unsatisfactory, the party may request the
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 need only be a senior executive officer with the 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. Failure of the Company to obtain such express
assumption and agreement at or prior to the effectiveness of any such succession
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 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, 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. The Employee may not assign his rights or delegate his
duties or obligations under this Agreement.
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
P. O. Xxx 00000
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx,
Chief Operating Officer
With Copy to: Xxxx XxXxxxxxx, Xx.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
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If to the Employee: Xxx Xxxxx
0000 00xx Xxxxxx
Xxxxxxx, Xxxxx 00000
With Copy to: ---------------------------------------------
---------------------------------------------
---------------------------------------------
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
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) 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.
(d) 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.
(e) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement
in counterparts, all of which shall be considered one and the same
instrument.
(f) 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.
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DATED this 29th day of October, 1998, to be effective October 29, 1998.
COMPANY
ALAMOSA PCS LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
XXXXX X. XXXXXXXX, Chief Operating Officer
EMPLOYEE
/s/ X. X. Xxxxx
----------------------------------------------
XXX XXXXX
Approved as to the mediation and arbitration provisions in Paragraph 11 above.
XXXXXXXX, XXXXXX & XXXXX, L.L.P.
By
--------------------------------------------
XXXX XxXXXXXXX, XX.
Attorneys for Alamosa PCS LLC
------------------------------------------------
------------------------------------------------
Attorney for Employee
Attachments: Exhibit "A" - The Milestones
Exhibit "B" - Purchase Price for Units
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