Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), made and entered into as
of January 1, 2005, between Alamosa Holdings, Inc., a Delaware corporation,
with its principal office located at 0000 X. Xxxx 000, Xxxxxxx, XX (together
with its successors and assigns permitted under this Agreement) ("Alamosa"),
and Xxxxxxxx X. Xxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Alamosa and Employee entered into that certain Employment
Agreement effective as of January 27, 2000 (the "Original Agreement");
WHEREAS, Alamosa and Employee entered into that certain Amended and
Restated Employment Agreement effective as of October 1, 2002 (the "Amended and
Restated Agreement");
WHEREAS, Alamosa and Employee entered into that certain Second Amended
and Restated Employment Agreement effective as of November 19, 2003 (the
"Second Amended and Restated Employment Agreement").
WHEREAS, Alamosa has determined that it is in the best interests of
Alamosa and its stockholders to enter into this Agreement amending and
restating the obligations and duties of both Alamosa and Employee under the
Original Agreement, the Amended and Restated Agreement, and the Second Amended
and Restated Agreement; and
WHEREAS, Alamosa wishes to assure itself of the continued service of
Employee for the period hereinafter provided, and Employee is willing to be
employed by Alamosa for said period, upon the terms and conditions provided in
this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, Alamosa and Employee (individually a "Party"
and together the "Parties") agree as follows:
1. DEFINITIONS.
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
(b) "Base Salary" shall mean the annual salary provided for in Section 3
below, as adjusted from time to time by the Board.
(c) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under
the Exchange Act.
(d) "Beneficiary" shall mean the person or persons named by Employee pursuant
to Section 22 below or, in the event that no such person is named and
survives Employee, her estate.
(e) "Board" shall mean the Board of Directors of Alamosa.
(f) "Cause" shall mean:
(i) Employee's conviction in a court of law of, or guilty plea or
no contest plea to, a felony charge,
(ii) willful, substantial and continued failure by Employee to
perform her duties under this Agreement,
(iii) willful engagement by Employee in conduct that is
demonstrably and materially injurious to Alamosa,
(iv) a breach by Employee of Section 11 or Section 12 below. For
the purposes of clauses (ii) and (iii) of this definition, no
act or failure to act on the part of Employee shall be deemed
"willful" (x) if caused by Disability or (y) unless done, or
omitted to be done, by her not in good faith or without
reasonable belief that her act or omission was in the best
interests of Alamosa.
(g) "Change of Control" shall be deemed to have occurred if the event set
forth in any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Alamosa (not including in the
securities beneficially owned by such Person any securities
acquired directly from Alamosa or its Affiliates)
representing 25% or more of the combined voting power of
Alamosa's then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection with a
transaction described in clause (A) of paragraph (iii) below;
or
(ii) the following individuals cease for any reason to constitute
a majority of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and
any new director (other than a director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors
of Alamosa) whose appointment or election by the Board or
nomination for election by Alamosa's stockholders was
approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors on the date hereof or whose appointment, election
or nomination for election was previously so approved or
recommended; or
(iii) there is consummated a merger or consolidation of Alamosa or
any direct or indirect subsidiary of Alamosa with any other
corporation or other entity, other than (A) a merger or
consolidation (1) which results in the voting securities of
Alamosa outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity or any parent thereof) at least 60% of
the combined voting power of the securities of Alamosa or
such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation and (2) after
which the individuals who comprise the Board immediately
prior thereto constitute at least a majority of the board of
directors of Alamosa, the entity surviving such merger or
consolidation or, if Alamosa or the entity surviving such
merger is then a subsidiary, the ultimate parent thereof, or
(B) a merger or consolidation effected to implement a
recapitalization of Alamosa (or similar transaction) in which
no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of Alamosa (not including in the
securities Beneficially Owned by such Person any securities
acquired directly from Alamosa or its Affiliates)
representing 25% or more of the combined voting power of
Alamosa 's then outstanding securities; or
(iv) the stockholders of Alamosa approve a plan of complete
liquidation or dissolution of Alamosa or there is consummated
an agreement for the sale or disposition by Alamosa of all or
substantially all of Alamosa 's assets, other than a sale or
disposition by Alamosa of all or substantially all of
Alamosa's assets immediately following which the individuals
who comprise the Board immediately prior thereto constitute
at least a majority of the board of directors of the entity
to which such assets are sold or disposed or any parent
thereof.
Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which the record
holders of the common stock of Alamosa immediately prior to such transaction or
series of transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the assets of
Alamosa immediately following such transaction or series of transactions.
(h) "Code" shall mean the Internal Revenue Code of 1986, as from time to time
amended.
(i) "Committee" shall mean the Compensation Committee of the Board.
(j) "Date of Termination" shall mean, with respect to any purported
termination of Employee's employment during the Term, (i) if Employee's
employment terminates due to Disability, 30 days after a good faith
determination of Disability by Alamosa (provided that Employee shall not
have returned to full-time performance of her duties during such 30-day
period), (ii) if Employee's employment terminates due to death, the date
of death, and (iii) if Employee's employment terminates for any other
reason, the date specified in the Notice of Termination (which shall be
not less than 30 days after the date of such Notice of Termination).
(k) "Disability" shall have the meaning set forth in Alamosa's long-term
disability policy as in effect from time to time.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(m) "Excise Tax" shall mean any excise tax imposed under Section 4999 of the
Code.
(n) "Good Reason" shall mean the occurrence (without Employee's express
written consent) of any one of the following acts or omissions by Alamosa
unless, in the case of any act or omission described in this Section
1(n), such act or omission is corrected prior to the Date of Termination
specified in the Notice of Termination in respect thereof:
(i) the assignment to Employee of duties, which taken as a
whole, are inconsistent with the duties of an officer of
Alamosa, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by Alamosa promptly after receipt of
notice thereof given by Employee;
(ii) a reduction by Alamosa in Employee's base salary and/or
annual bonus opportunity as in effect on the date hereof or
as the same may be increased from time to time, except for
across-the-board reductions similarly affecting all senior
executives of Alamosa;
(iii) the failure by Alamosa to pay to Employee any portion of
Employee's current compensation except pursuant to an
across-the-board compensation deferral similarly affecting
all senior executives of Alamosa;
(iv) the failure by Alamosa to continue to provide Employee with
benefits substantially similar to those enjoyed by Employee
under any of Alamosa's savings/retirement, life insurance,
medical, health and accident, disability plans or other
benefits (including, without limitation, automobile, country
club, and vacation benefits) in which Employee was
participating at the time, the taking of any action by
Alamosa which would directly or indirectly materially reduce
any of such benefits or deprive Employee of any material
fringe benefit enjoyed by Employee at the time, (including,
without limitation, automobile, country club, and vacation
benefits);
(v) the relocation of Alamosa's principal offices to a location
more than 50 miles from the location of such offices on the
date of this Agreement or a requirement that Employee be
based anywhere other than at Alamosa's principal offices
except for necessary travel on Alamosa's business to an
extent substantially consistent with Employee's business
travel obligations on the date of this Agreement; or
(vi) any determination by Employee after the occurrence of a
Change of Control that Good Reason exists (which
determination shall be final and conclusive).
(o) "LSAR" means Employee's right to receive a cash payment in respect of the
mandatory cancellation of an option equal to the product of (1) the
excess, if any, of the then fair market value (as determined under the
LTIP) of a share of Alamosa common stock over the per share exercise
price of the option and (2) the number of shares of stock subject to the
option.
(p) "LTIP" means Alamosa's Amended and Restated 1999 Long Term Incentive
Plan, or any successor plan thereto, or any amendment thereof.
(q) "Notice of Termination" shall mean delivery of written notice by one
Party and receipt thereof by the other Party in accordance with Section
26 below, which notice shall indicate the specific termination provision
in this Agreement relied upon and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for termination of
Employee's employment hereunder. (r) "Person" shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include
(i) Alamosa or any of its subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of Alamosa or any of
its Affiliates, (iii) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of Alamosa in substantially
the same proportions as their ownership of stock of Alamosa.
(s) "Severance Payments" shall have the meaning set forth in Section 9(d)(ii)
below.
(t) "Tax Counsel" shall have the meaning set forth in Section 10 below.
(u) "Term" shall mean the period specified in Section 2(b) below during which
Employee is employed by Alamosa or any of its Affiliates.
(v) "Total Payments" shall mean those payments so described in Section 10
below.
2. TERM OF EMPLOYMENT, POSITIONS AND DUTIES.
(a) Employment of Employee. Alamosa hereby employs Employee, and Employee
hereby accepts employment with Alamosa, in the position and with the
duties and responsibilities set forth below and upon such other terms and
conditions as are hereinafter stated.
(b) Term of Employment. The Term shall commence on the date of this Agreement
and shall terminate on December 31, 2005, unless it is sooner terminated
as provided in Section 9 below or extended by agreement of the Parties.
Notwithstanding the foregoing, this Agreement shall be automatically
renewed for one (1) year terms, unless a notice to terminate this
Agreement is given by either party. This notice to terminate must be
given on or before September 30th of the then current year. If such
notice is not given by either party on or before that date, this
Agreement shall automatically be extended until December 31st of the
following year. This Agreement will govern any such extension.
(c) Title, Duties and Authorities. Until termination of her employment
hereunder, Employee shall be employed as Chief Integration Officer of
Alamosa, with all the authorities and responsibilities that normally
accrue to such, and shall hold such other titles as the Board may grant.
Employee shall receive no additional compensation for serving in any
other capacity.
(d) Time and Effort.
(i) Employee agrees to devote her best efforts and abilities and
her full business time and attention to the affairs of
Alamosa in order to carry out her duties and responsibilities
under this Agreement.
(ii) Notwithstanding the foregoing, nothing shall preclude
Employee from
A. serving on the boards of (x) a reasonable number of
trade associations and charitable organizations, and (y)
(as defined below) with the prior consent of the Board
(which shall not be unreasonably withheld), any other
business not in Competition with Alamosa,
B. engaging in charitable activities and community affairs,
and
C. managing her personal investments and affairs; provided,
however, that any such activities do not materially
interfere with the proper performance of her duties and
responsibilities specified in Section 2(c) above.
3. BASE SALARY.
Employee shall receive from Alamosa an initial Base Salary, payable in
accordance with the regular payroll practices of Alamosa, of $200,000.00.
During the Term, the Board shall review the Base Salary for increase no less
often than annually.
4. ANNUAL BONUS.
Employee shall be eligible to receive an annual bonus, which shall
have an initial target of $80,000. Payment of the annual bonus (which may, in
the Committee's discretion, be paid in whole or in part on a quarterly basis)
shall be based upon the achievement of such performance goals as the Committee
shall determine based on Alamosa's budget and business plan. No annual bonus
will be payable unless the Committee determines that at least 75% of the
performance goals have been achieved. The amount of the annual bonus payable
shall be determined in accordance with the terms of the applicable Alamosa
bonus plan, but in no case shall exceed 200% of the target for the annual
bonus.
5. LONG-TERM INCENTIVE COMPENSATION.
During the Term, Employee shall participate in any long-term incentive
plan or plans that may be established by Alamosa for members of Alamosa's
senior management generally.
6. EQUITY GRANTS.
(a) Annual Option Grants. On the first business day of January of each year,
the Committee shall grant Employee options, according to the following
schedule: 2005 - 15,000 options (each an "Option"). With respect to each
Option, three percent (3%) of the total number of shares subject to such
Option shall become vested and fully exercisable each month following the
date of the grant of such Option. All shares subject to each Option shall
become vested and exercisable, if Employee's employment terminates,
pursuant to Section 9(d) below. Each Option shall have a per share
exercise price equal to the then fair market value (as defined in the
LTIP) of a share of Alamosa common stock on the date of grant.
(b) Incentive Stock Options. All stock options to be granted to Employee
hereunder shall, to the maximum extent permitted by Section 422 of the
Code, be intended to qualify as "incentive stock options."
(c) Employment Required; Other Option Terms. In order to receive any option
grant pursuant to this Section 6, Employee must be employed by Alamosa or
one of its Affiliates on the date of grant and any Option granted pursuant
to this Section 6 shall be subject to the terms and conditions of the form
of Alamosa Executive Stock Option Agreement under the LTIP to the extent
such agreement is not inconsistent with this Section 6. In addition,
except as otherwise provided herein or in the Executive Stock Option
Agreement, option vesting will be subject to Employee's continued
employment hereunder.
(d) Restricted Stock Grant. On the first business day in January of each year,
the Committee shall grant (subject to the terms of the LTIP and the
specific terms of a restricted stock agreement substantially in the form
attached hereto as Exhibit A) Employee shares of restricted stock pursuant
to the following schedule: 2005 - 15,000.
(e) LSAR Conversion. Employee acknowledges that immediately prior to the
occurrence of a "change in ownership or control" (as defined in Prop Reg
1.280G-1) of Alamosa, each Option that has been granted to her pursuant to
this Section 6 that had not yet become vested and exercisable shall
automatically convert into an LSAR.
7. EXPENSE REIMBURSEMENT.
Employee shall be entitled to prompt reimbursement by Alamosa for all
reasonable out-of-pocket expenses incurred by her during the Term in performing
services under this Agreement, upon her submission of such accounts and records
as may be reasonably required by Alamosa.
8. EMPLOYEE BENEFIT PLANS AND PERQUISITES.
During the Term, Employee shall be entitled to participate in all life
insurance, short-term and long-term disability, accident, health insurance and
savings/retirement plans that are applicable to Alamosa employees generally or
to the senior executives of Alamosa. Alamosa will also reimburse Employee for
the cost of the Employee's annual physical exams performed during the Term by a
physician chosen by Employee. The cost of each such exam (including of any
tests performed in connection with the physical) shall not exceed $2,500.
During the Term, Employee shall be entitled to receive a car allowance
and other perquisites consistent with the Executive Benefit Policy approved by
the Committee.
9. TERMINATION OF EMPLOYMENT.
(a) General. Notwithstanding anything to the contrary herein, in the event of
termination of Employee's employment under this Agreement for any reason
whatsoever, he, her dependents or Beneficiary, as may be the case, shall
be entitled to receive (in addition to payments and benefits under, and
except as specifically provided in, subsections (b) through (e) below as
applicable):
(i) his Base Salary through the Date of Termination;
(ii) payment in lieu of any unused vacation, in accordance with
Alamosa's vacation policy and applicable laws:
(iii) any earned annual bonus not yet paid to him;
(iv) any deferred compensation under any deferred compensation
agreement or plan then in effect;
(v) any other compensation or benefits, including without
limitation long-term incentive compensation described in
Section 5 above, in accordance with Section 6 above and
employee benefits under plans described in Section 8 above,
that have vested through the Date of Termination or to which
she may then be entitled in accordance with the applicable
terms of each award or plan; and
(vi) reimbursement in accordance with Section 7 above of any
business expenses incurred by Employee through the Date of
Termination but not yet paid to her and reimbursement of any
unpaid expenses incurred pursuant to Section 8 above.
(b) Termination due to Death or Disability. In the event that Employee's
employment terminates due to her death or disability, she or her
Beneficiary, as the case may be, shall be entitled, in addition to the
compensation and benefits specified in Section 9(a), to:
(vii) his Base Salary, at the rate in effect on the Date of
Termination, through the end of the month in which the
termination occurs, and
(viii) an annual bonus under Alamosa's annual bonus plan. Such
annual bonus shall be prorated to the Date of Termination
and shall be paid based on the Board's determination (which
shall be made in the Board's sole and absolute discretion)
of what annual bonus Employee would likely have received in
respect of the year in which the termination occurred.
(c) Termination by Alamosa for Cause. In the event that Alamosa terminates
Employee's employment for Cause, she shall be entitled only to the
compensation and benefits specified in Section 9(a).
Notwithstanding the foregoing, termination for Cause may not occur
pursuant to clauses (ii) or (iii) of Section 1(g) above unless and until, with
the Board's prior approval, Alamosa has delivered to Employee Notice of
Termination, which shall contain in reasonable detail the facts purporting to
constitute such nonperformance, act, omission or breach, and afforded her 30
days thereafter to cure the same (if curable) and/or to respond in writing to
the Board setting forth her position that her termination for Cause should not
occur and requesting reconsideration by the Board, in which event (x) the
effective date of termination of employment shall be deferred until the Board
has had the opportunity to consider whether such nonperformance, act, omission
or breach has been cured and to consider any request by Employee for
reconsideration, and (y) the Board shall thereafter cause a written notice to
be delivered on its behalf to Employee stating either that it has rescinded its
determination that her employment is to be terminated for Cause or that affirms
its determination that her employment is to be terminated for Cause and that
contains an effective date of termination of employment, which shall be not
earlier than 15 days after such notice is given. Section 1(n)(i) to the
contrary notwithstanding, upon delivery to Employee of Notice of Termination
under this Section 9(c), Employee shall be suspended from all duties and
responsibilities unless and until the Board rescinds its determination that her
employment is to be terminated for Cause.
(d) Termination by Alamosa Without Cause or by Employee for Good Reason.
(i) Alamosa shall provide Employee 30 days' Notice of
Termination of her employment without Cause, and Employee
shall provide 30 days' Notice of Termination of her
employment for Good Reason.
(ii) In the event of termination by Alamosa of Employee's
employment without Cause or of termination by Employee of
her employment for Good Reason, she shall be entitled, in
addition to the compensation and benefits specified in
Section 9(a), to the following compensation and benefits
(the "Severance Payments"):
A. his Base Salary, at the rate in effect immediately
before such termination (two times her Base Salary if
the Employee's employment terminates within twelve
months following a Change in Control),
B. the higher of the Employee's target annual bonus or
average annual bonus earned over the two preceding
fiscal years (two times such amount if the Employee's
employment terminates within twelve months following a
Change in Control),
C. a prorated amount of Employee's annual bonus for the
year during which her termination occurs, which bonus
shall not be less than the product of (A) the annual
bonus paid to Employee for the calendar year preceding
the Date of Termination that has most recently been paid
to Employee and (B) a fraction, the numerator of which
is the number of days in the current calendar year
through the Date of Termination and the denominator of
which is 365;
D. continuing coverage under the life, disability, accident
and health insurance programs for Alamosa employees
generally and under any supplemental programs covering
Alamosa executives, as from time to time in effect, for
a one-year period from such termination or until
Employee becomes eligible for substantially similar
coverage under the employee welfare plans of a new
employer, whichever occurs earlier (for a two year
period if the Employee's employment terminates within
twelve months following a Change in Control) (at the end
of the foregoing coverage period, Employee shall also be
entitled to elect coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 ); and
E. continuation of all other benefits in effect on the Date
of Termination (including, without limitation,
automobile, country club, vacation and pension benefits,
if applicable) for a one-year period (a two year period
if the Employee's employment terminates within twelve
months following a Change in Control) following such
termination or until Employee becomes eligible for
substantially similar benefits from a new employer,
whichever occurs earlier.
(iii) The payments specified in Sections 9(d)(ii)(A), (B) and (C)
shall be made by Alamosa to Employee in a lump sum in cash
within 30 days of the Date of Termination.
(iv) Employee's right to terminate her employment for Good Reason
shall not be affected by her incapacity due to physical or
mental illness. Employee's continued employment shall not
constitute consent to, or a waiver of rights with respect
to, any act or omission constituting Good Reason.
(v) As a condition to receiving the payments and benefits
pursuant to this Section 9(d), Employee shall be required to
execute (and not revoke) a general release of all claims
against Alamosa and its Affiliates. Such release shall be in
a form substantially similar to that attached as Exhibit B
hereto.
(e) Voluntary Termination by Employee. Employee shall have the right
voluntarily to terminate her employment in accordance with Section
1(j) above. If she does so, she shall be entitled only to the
compensation and benefits specified in Section 9(a).
(f) Cessation of Payments. If, during or after the Term, Employee commits
a breach of Section 11 or Section 12 below, Alamosa shall have no
further obligation to make payments to her under this Agreement except
as may be required in accordance with Section 9(a).
(g) Notice Requirements. Any purported termination of Employee's
employment that is not effected pursuant to Notice of Termination
satisfying the requirements of Sections 1(j) and 1(q) and Section 26
shall not be effective for purposes of this Agreement.
10. 280G TREATMENT.
(a) Notwithstanding any other provisions of this Agreement, in the event that
any payment or benefit received or to be received by Employee (including
any payment or benefit received in connection with a Change in Control or
the termination of Employee's employment, whether pursuant to the terms
of this Agreement or any other plan, arrangement or agreement) (all such
payments and benefits, referred to as the "Total Payments") would be
subject (in whole or part), to the Excise Tax, then, after taking into
account any reduction in the Total Payments provided by reason of Section
280G of the Code in such other plan, arrangement or agreement, the cash
Severance Payments shall first be reduced, and the noncash Severance
Payments shall thereafter be reduced, to the extent necessary so that no
portion of the Total Payments is subject to the Excise Tax but only if
(A) the net amount of such Total Payments, as so reduced (and after
subtracting the net amount of federal, state and local income taxes on
such reduced Total Payments and after taking into account the phase out
of itemized deductions and personal exemptions attributable to such
reduced Total Payments) is greater than or equal to (B) the net amount of
such Total Payments without such reduction (but after subtracting the net
amount of federal, state and local income taxes on such Total Payments
and the amount of Excise Tax to which Employee would be subject in
respect of such unreduced Total Payments and after taking into account
the phase out of itemized deductions and personal exemptions attributable
to such unreduced Total Payments); provided, however, that Employee may
elect to have the noncash Severance Payments reduced (or eliminated)
prior to any reduction of the cash Severance Payments.
(b) For purposes of determining whether and the extent to which the Total
Payments will be subject to the Excise Tax, (i) no portion of the Total
Payments the receipt or enjoyment of which the Employee shall have waived
at such time and in such manner as not to constitute a "payment" within
the meaning of Section 280G(b) of the Code shall be taken into account,
(ii) no portion of the Total Payments shall be taken into account which,
in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to
the Employee does not constitute a "parachute payment" within the meaning
of Section 280G(b)(2) of the Code (including by reason of section
280G(b)(4)(A) of the Code) and, in calculating the Excise Tax, no portion
of such Total Payments shall be taken into account which, in the opinion
of Tax Counsel, constitutes reasonable compensation for services actually
rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in
excess of the Base Amount allocable to such reasonable compensation, and
(iii) the value of any non-cash benefit or any deferred payment or
benefit included in the Total Payments shall be determined in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
(c) Upon Employee's request, Alamosa shall provide Employee with a written
statement setting forth the manner in which such payments were calculated
and the basis for such calculations including, without limitation, any
opinions or other advice Alamosa has received from Tax Counsel or other
advisors or consultants (and any such opinions or advice which are in
writing shall be attached to the statement).
11. NON-COMPETITION/NON-SOLICITATION.
(a) During Employee's employment with Alamosa, Employee shall not engage in
"Competition" with Alamosa or any Affiliate (collectively, the "Company
Group"). For purposes of this Agreement, Competition by Employee shall
mean Employee's engaging in, or otherwise directly or indirectly being
employed by or acting as a consultant or lender to, or being an agent,
principal, owner, partner, corporate officer, director, shareholder,
member, or investor of, or permitting her name to be used in connection
with the activities of any other business or organization anywhere in the
United States which competes with the Business of any entity in the
Company Group. For these purposes, the "Business" is establishing and
providing mobile wireless communications services, 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 PCS Management Agreements dated as of July 10, 1998, December
8, 1998, January 25, 1999, December 6, 1999 and December 23, 1999 (as
they may be amended from time to time) or any other similar Sprint
Management Agreement to which Alamosa or any of its Affiliates may be a
party ("the Sprint Agreement"); provided that; it shall not be a
violation of this sub-paragraph for Employee to become the registered or
beneficial owner of up to five percent (5%) of any class of the capital
stock of a competing corporation registered under the Securities Exchange
Act of 1934, as amended, provided the Employee does not actively
participate in the business of such corporation until such time as this
covenant expires.
(b) For a period of one year following the termination of Employee's
employment (two years if Employee's employment terminates under Section
9(d) during the Term and within twelve months following a Change of
Control), whether upon expiration of this Agreement or otherwise,
Employee shall not engage in Competition, as defined above, in the
Service Area or in any area in which Alamosa had, as of the date of the
expiration of termination of this Agreement, a bona fide intention to
begin to operate its Business; provided that, it shall not be a violation
of this sub-paragraph for Employee to (1) become the registered or
beneficial owner of up to five percent (5%) of any class of the capital
stock of a competing corporation registered under the Securities Exchange
Act of 1934, as amended, provided Employee does not actively participate
in the business of such corporation until such time as this covenant
expires, (2) commence employment with an employer or provide services to
an entity who conducts the Business in one or more areas within the
Service Area so long as such areas do not contain more than 25% of
Alamosa's subscribers and Employee's services do not primarily relate to
the Service Area or (3) commence employment with or provide services to a
national carrier of the Business (e.g., Verizon or AT&T) if Employee's
services do not primarily relate to the Service Area. Notwithstanding
anything to the foregoing, it shall not be a violation of this
sub-paragraph for an Employee to commence employment or provide
consulting services to an entity that derives more than 80% of its
revenues from cellular communications services.
(c) For a period of one year (two years if Employee's employment terminates
under Section 9(d) during the Term and within twelve months following a
Change of Control) after Employee ceases to be employed hereunder,
whether upon expiration of this Agreement or otherwise, Employee agrees
that she will not, directly or indirectly, for her benefit or for the
benefit of any other person, firm or entity, do any of the following:
(i) recruit or solicit (other than pursuant to general,
non-targeted advertisements) the employment or services of,
or hire, in any business enterprise or activity, any person
who was employed by an entity in the Company Group upon
termination of Employee's employment, or within six (6)
months prior thereto;
(ii) solicit from any customer or client doing business with an
entity in the Company Group as of Employee's termination,
business of the same or a similar nature to the business of
such entity of the Company Group with such customer or
client;
(iii) solicit from any potential customer of an entity in the
Company Group business of the same or a similar nature to
that which has been the subject of a written or oral bid,
offer or proposal by such entity of the Company Group, or of
substantial preparation with a view to making such a bid,
offer or proposal, within six (6) months prior to Employee's
termination; or
(iv) otherwise knowingly interfere with the business or accounts
of any entity in the Company Group.
(d) Employee acknowledges that the services to be rendered by her hereunder
are of a special and unique character, which gives this Agreement a
peculiar value to Alamosa, the loss of which may not be reasonably or
adequately compensated for by damages in an action at law, and that a
breach or threatened breach by her of any of the provisions contained in
this Section 11 will cause the Company irreparable injury. Employee
therefore agrees that in the event of a violation or threatened violation
of any of the provisions contained in this Section 11, Alamosa or any of
its Affiliates shall be entitled, in addition to any other right or
remedy, to a temporary, preliminary and permanent injunction, without the
necessity of proving the inadequacy of monetary damages or the posting of
any bond or security, enjoining or restraining Employee from any such
violation or threatened violations.
(e) Employee further agrees that due to the confidential nature of the
information she will possess, the covenants set forth herein are
reasonable and necessary for the protection of the goodwill or other
business interest of the Company Group.
(f) 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 11 is overly restrictive and 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
11 shall remain in full force and effect. Employee further agrees that if
a court of competent jurisdiction determines that any provision of this
Section 11 is invalid or against public policy, the remaining provisions
of this Section 11 and the remainder of this Agreement shall not be
affected thereby, and shall remain in full force and effect.
12. CONFIDENTIAL INFORMATION.
Employee recognizes and acknowledges that she will have access to
certain information of members of the Company Group and that such information
is confidential and constitutes valuable, special and unique property of such
members of the Company Group. The Parties agree that Alamosa has a legitimate
interest in protecting the Confidential Information, as defined below, and is
entitled to protection of its interests in the Confidential Information.
Employee shall not at any time, either during or subsequent to the Term,
disclose to others, use, copy or permit to be copied, except in pursuance of
her duties for or on behalf of Alamosa, any Confidential Information of any
member of the Company Group (regardless of whether developed by Employee)
without the prior written consent of Alamosa. Employee acknowledges that the
use or disclosure of the Confidential Information to anyone or any third party
could cause monetary loss and damages to Alamosa. The Parties further agree
that in the event of a violation of this covenant against non-use and
non-disclosure of Confidential Information, Alamosa 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.
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 her employment with the Company in accordance
with the Company's obligations to such third parties and the policies
established by the Company.
13. DELIVERY OF DOCUMENTS UPON TERMINATION.
Employee shall deliver to Alamosa or its designee at the termination
of her 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 Employee, solely or jointly
with others, that are in 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,
Employee hereby grants and conveys to Alamosa 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 her
direction or that may come into her possession in any way during the term of
employment with Alamosa that relate in any manner to the past, present or
anticipated business of any member of the Company Group.
14. DISPUTES.
The Parties 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 11 through 13 hereof. Nothing in this Section 14 applies
to or governs disputes arising under Sections 11 through 13 of this Agreement.
(a) MEDIATION. The Parties 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 Parties agree to arbitrate any dispute arising
under this Agreement. This arbitration shall occur only after the
mediation process described herein.
(b) ARBITRATION. The Parties agree, 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 feasible, may be conducted in any city within the Service
Area or within the State of Texas. (f) ARBITRATION AWARD. If there is
only one arbitrator, her or her decision shall be binding and conclusive.
Similarly, a decision by a panel of arbitrators shall also 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 ss.. 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 Alamosa, 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:
(i) 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.
E. The arbitration award must be made within thirty (30)
days of the receipt of hearing briefs.
(ii) 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 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.
15. WITHHOLDING TAXES.
All payments to Employee or her Beneficiary shall be subject to
withholding on account of federal, state and local taxes as required by law. If
any payment under this Agreement is insufficient to provide the amount of such
taxes required to be withheld, Alamosa may withhold such taxes from any
subsequent payment due Employee or her Beneficiary. In the event that all
payments due are insufficient to provide the required amount of such
withholding taxes, Employee or her Beneficiary, within five days after written
notice from Alamosa, shall pay to Alamosa the amount of such withholding taxes
in excess of the payments due.
16. INDEMNIFICATION AND LIABILITY INSURANCE.
Nothing herein is intended to limit Alamosa's indemnification of
Employee, and Alamosa shall indemnify her to the fullest extent permitted by
applicable law consistent with Alamosa's Certificate of Incorporation and
By-Laws as in effect on the date of this Agreement, with respect to any action
or failure to act on her part while she is (x) an officer, director or employee
of Alamosa or any Subsidiary or Affiliate or (y) a director or officer of any
trade association or business enterprise that is not a subsidiary or Affiliate
and in which capacity her service is at Alamosa's request. To the extent that
directors' and officers' liability insurance is obtainable on commercially
economic terms, Alamosa shall cause Employee to be covered, during the Term and
after the Term in respect of claims arising from any such service during the
Term, by such insurance on terms no less favorable than the directors' and
officers' liability insurance maintained by Alamosa as in effect on the date of
this Agreement in terms of coverage, limits and reimbursement of defense costs.
In any period during which such insurance coverage is not obtainable on
commercially economic terms, Alamosa shall cause Employee to be covered by as
much of such insurance as may be obtained for the largest premium paid by
Alamosa for such an insurance policy in effect during the Term.
17. ASSIGNABILITY, SUCCESSORS, BINDING AGREEMENT.
(a) In addition to any obligations imposed by law upon any successor to
Alamosa, Alamosa will use its best efforts to persuade any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
Alamosa to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Alamosa would be required to
perform it if no such succession had taken place. Failure of Alamosa to
obtain such assumption and agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall entitle
Employee to compensation from Alamosa in the same amount and on the same
terms as Employee would be entitled to hereunder if she were to terminate
her employment for Good Reason within twelve months following a Change of
Control, except that, for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the
Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee shall
die while any amount would still be payable to her hereunder (other than
amounts which, by their terms, terminate upon her death) if she had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of Employee's
estate.
18. ENTIRE AGREEMENT.
Except to the extent otherwise provided herein, this Agreement
contains the entire understanding and agreement between the Parties concerning
the subject matter hereof and supersedes any prior agreements, whether written
or oral, between the Parties concerning the subject matter hereof. In the event
of a conflict between this Agreement and terms of any benefit plan, grant or
award, the provisions of this Agreement shall govern the determination of
Employee's rights.
19. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by both Employee and an authorized officer of
Alamosa. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such
other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in
writing and signed by the Party to be charged with the waiver.
20. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be valid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and
shall remain in full force and effect to the fullest extent permitted by law.
21. SURVIVAL.
The respective rights and obligations of the Parties under this
Agreement shall survive any termination of Employee's employment with Alamosa.
22. BENEFICIARIES/REFERENCES.
Employee shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable under this Agreement following Employee's
death by giving Alamosa written notice thereof. In the event of Employee's
death or of a judicial determination of her incompetence, reference in this
Agreement to Employee shall be deemed to refer, as appropriate, to her
beneficiary, estate or other legal representative.
23. MITIGATION.
Alamosa agrees that, if Employee's employment by Alamosa terminates
during the Term, Employee is not required to seek other employment or to
attempt in any way to reduce any amounts payable to her due under this
Agreement. Further, the amount of any payment shall not be reduced by any
compensation earned by Employee as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by Employee to Alamosa, or otherwise.
24. GOVERNING LAW AND PERFORMANCE.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of Texas, without reference to principles
of conflict of laws. This Agreement shall be deemed to be executed in and
performance called for in Lubbock, Lubbock County, Texas.
25. LEGAL EXPENSES.
Alamosa agrees to pay all reasonable out-of-pocket costs and expenses,
including all reasonable attorneys' fees and disbursements, actually incurred
by Employee in collecting or enforcing payments to which she is ultimately
determined to be entitled (whether by agreement among the Parties, court order
or otherwise) pursuant to this Agreement in accordance with its terms.
26. NOTICES.
Any notice given to either Party shall be in writing and shall be
deemed to have been given when delivered either personally, by fax, by
overnight delivery service (such as Federal Express) or sent by certified or
registered mail, postage prepaid, return receipt requested, duly addressed to
the Party concerned at the address indicated below or to such changed address
as the Party may subsequently give notice of.If to Alamosa:
Alamosa Holdings, Inc.
0000 X. Xxxx 000
Xxxxxxx, XX 00000
With a copy to:
Xxxx XxXxxxxxx, Xx.
Xxxxxxxx, Xxxxxx and& Xxxxx, LLP
X.X. Xxx 0000 Xxxxxxx, XX 00000-0000
and
Xxxx X. Xxxxx, III
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to Employee:
At her address on file with Alamosa.
With a copy to:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxx Xx.
Xxxxxxx, Xxxxx 00000
27. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
28. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
Alamosa Holdings, Inc.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
Employee:
/s/ Xxxxxxxx X. Xxxxx
--------------------------------
Xxxxxxxx X. Xxxxx
Approved as to the mediation and arbitration provisions in Section 14 above.
Xxxxxxxx, Xxxxxx & Xxxxx, LLP
By:
--------------------------------
Xxxx XxXxxxxxx, Xx.
Attorney for Alamosa
By:
--------------------------------
Xxxxxxx X. Xxxxx
Attorney for Employee
Dated this 30th day of December, 2004.
