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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is entered into this date
by and between ALAMOSA PCS HOLDINGS, INC. and its subsidiaries, specifically
TEXAS TELECOMMUNICATIONS, LP, a Texas limited partnership, having its principal
executive office located at 0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxx 00000 (the
"Company"), and XXXX XXXXXXXX, an individual residing at 0000 0xx Xxxxxx,
Xxxxxxx, Xxxxx (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
Senior Vice President - Corporate Finance ("SVP-CF"). The term of the Employee's
employment, pursuant to this Agreement, will commence on June 1, 2000, (the
"Commencement Date") and will continue until June 1, 2005, or the termination of
this Agreement as described in Section 6 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 Financial Officer ("CFO") of the Company. The SVP-CF shall
report to the CFO of the Company. Notwithstanding the foregoing, the Company
acknowledges that the Employee has other business interests and ownerships as
well as serving on the Boards of Directors of other companies in which the
Employee is a stockholder or owner. Subject to the provisions of Sections 7
through 11 hereof, the Company acknowledges and consents to the continuation of
these ownerships and relationships, provided they do not interfere with the
Employee's duties under this Agreement. Notwithstanding anything to the contrary
in this Agreement, nothing in this Agreement shall be deemed to impose any
obligation on the Company or any of its subsidiaries to continue to employ the
Employee, or on the Employee to remain in the employ of the Company or any of
its subsidiaries.
2. COMPENSATION. In consideration of all services rendered by the
Employee as SVP-CF 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 $150,000.00, payable periodically but no less
often than semi-
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monthly, in substantially equal amounts, in accordance with the
Company's payroll practices from time to time in effect. The Company
will review the Employee's base salary at least once each year and
may, in its discretion, increase the Employee's base salary.
(b) BONUS. In addition to the Employee's base salary, the Employee
shall be eligible to receive a bonus (a "Quarterly Bonus") for each
calendar quarter in an amount, if any, determined as follows: In
each calendar quarter, beginning June 30, 2000, Employee's Quarterly
Bonus shall be the sum of (1) plus (2), as follows:
(1) $12,500.00 multiplied by the percentage set forth opposite
each Expected Milestone set forth in the attached EXHIBIT "A",
incorporated herein by reference, which is achieved for that
calendar quarter.
(2) $12,500.00 multiplied by the percentage set forth opposite
each Exceptional Milestone set forth in EXHIBIT "A" which is
achieved for that calendar quarter.
If any particular Expected Milestone or Exceptional Milestone is not
achieved for any calendar quarter, that percentage share of the
dollar amount specified in (1) or (2) above, as the case may be,
shall not be payable as part of the Quarterly Bonus. The Expected
Milestones, Exceptional Milestones and percentages set forth on
EXHIBIT "A" may be changed by the Company at any time and from time
to time, but any such change shall not apply earlier than the
calendar quarter following the calendar quarter in which such change
is made by the Company and communicated to the Employee.
Any Quarterly Bonus owing to the Employee shall be paid within
forty-five (45) days following the end of the applicable calendar
quarter.
The Employee will be entitled to an "Acquisition Bonus" based on
acquisitions of POPs through purchase, merger, etc (not including
pops assigned by Sprint) at the rate of $.05 per pop in any calendar
year not to exceed $200,000 in any year. This bonus will be
determined and paid within 60 days after the close of the calendar
year of that year and any amount determined up to $200,000 maximum
will be reduced by bonuses paid under (1) and (2) above for that
calendar year. In any instance, the maximum bonus attributable to a
calendar year will be the greater of the Quarterly Bonus or
Acquisition Bonus.
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"POP" acquired during a quarter shall mean the population as of the
latest census of a population center in which the Company or its
parent or subsidiary or affiliate company may acquire the rights
within that population center to have PCS telephone service. In
order for such "POP" to be considered a part of this bonus, the
actual acquisition must have been completed during that calendar
year.
The Employee will receive no additional compensation for serving the Company in
any other capacity.
3. EMPLOYEE BENEFITS. The Employee will be entitled to participate in
all incentive, retirement, profit-sharing, life, medical, disability and other
benefit plans and programs (collectively "Benefit Plans") as are from time to
time generally available to other executives of the Company with comparable
responsibilities, subject to the provisions of those programs. Without limiting
the generality of the foregoing, the Company will provide the Employee with
basic health and medical benefits on the terms that such benefits are provided
to other executives of the Company with comparable responsibilities. The
Employee will also be entitled to holidays, sick leave and vacation in
accordance with the Company's policies as they may change from time to time, but
in no event shall the Employee be entitled to less than four (4) weeks paid
vacation per year.
4. ADDITIONAL BENEFITS FOR EMPLOYEE. The Employee is a licensed
Certified Public Accountant. The Company acknowledges that it would be in the
best interest of the Company for the Employee to maintain such license. As
additional benefits to the Employee under this Agreement related to such
license, the Company agrees to either pay directly or reimburse the Employee
during the term of this Agreement for each of the following:
(a) Continuing Professional Education (CPE). The Employee is
required to earn an average of forty (40) hours of CPE credit each
year. The Company will pay or reimburse the costs of such classes
sufficient for Employee to maintain his license, but such payment
shall be limited to the cost of such classes (i.e. tuition and
books) and the direct costs associated with such classes, such as
travel to and from and housing, including hotel and meals for the
Employee only.
(b) Dues and Licenses. The Company will pay or reimburse the
Employee for all professional dues and licenses attributable to the
Employee's license, including but not limited to the following:
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(1) Texas Society of CPAs;
(2) American Institute of CPAs; and
(3) Annual License Fees, Texas State Board of Accountancy.
5. EXPENSES.
(a) Reimbursement for Expenses. The Company will promptly reimburse
the Employee, in accordance with the Company's policies and
practices in effect from time to time, for all expenses reasonably
incurred by the Employee in performance of the Employee's duties
under this Agreement, including reimbursement for miles driven by
the Employee in furtherance of the Company's business ("Business
Mileage").
(1) Reimbursement for Business Mileage shall be at the standard
mileage rate allowed by the Internal Revenue Service ("IRS") for
the taxable year and set forth in the appropriate IRS
publication.
(2) Business mileage does not include commuting from Employee's
residence to the Company's headquarters.
(3) Employee is responsible for proper substantiation and
reporting of Business Mileage and/or actual expenses.
(4) Employee acknowledges that the payment to him of a monthly
vehicle allowance plus the standard mileage rate may result in
taxable income if the business portion of actual automobile
expenses is less than the total amount paid to employee under
this subsection, or if employee does not maintain the records
required by the Internal Revenue Code and the Regulations
thereunder. Employee has been advised to consult a tax advisor
to determine the taxability of payments under this subsection,
and the record keeping requirements associated with the travel
and expenses associated with such payments.
(b) Expense Allowance. In addition to reimbursed expenses, Employee
is entitled to $600.00 per month as a vehicle allowance.
(c) Moving Allowance. Employee will be entitled to receive
reimbursement for relocation from Denver, Colorado, to Lubbock,
Texas. The company will handle the relocation through its relocation
agent.
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6. TERMINATION. The Employee's employment by the Company: (a) shall
terminate upon the Employee's death or disability (as defined below); (b) may be
terminated by the Company for any reason other than cause or nonperformance at
any time; (c) may be terminated by the Company for cause (as defined below) at
any time; (d) may be terminated by the Employee, without cause at any time upon
forty-five (45) days' prior written notice delivered by the Employee to the
Company; (e) may be terminated by the Employee for cause (as defined below) at
any time upon forty-five (45) days' prior written notice delivered by the
Employee to the Company; and (f) may be terminated by the Company for
non-performance by the Employee at any time.
(a) The term "disability" means the determination under the
Company's Long-Term Disability Plan that the Employee is eligible to
receive a disability benefit.
(b) The term "cause" in the event of termination of this Agreement
by the Company 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 by Employee
which constitutes a uncured default or breach of that certain Sprint
PCS Management Agreement dated July 17, 1998 and as it may be
amended from time to time or any other similar Sprint Management
Agreement to which the Company or any of its affiliates or
subsidiaries may be a party ("the Sprint Agreement"); (v) any act or
omission by Employee which constitutes an uncured default or breach
of that certain Nortel Networks Inc. Credit Agreement dated June 10,
1999 (the "Nortel Loan Agreement") and as it may be amended from
time to time, or any other loan, credit or debit agreement or
arrangement that the Company or any subsidiary or affiliate may
enter into from time to time; (vi) any act by Employee which
constitutes a violation by the Company of any Securities & Exchange
Commission rule or regulation which violation is not timely cured or
which leads to a fine or other penalty against the Company; or (vii)
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.
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(c) The term "cause" in the event of termination of this Agreement
by the Employee means (i) a dispute between the Company and the
Employee over accounting issues provided, however, any such dispute
shall not constitute "cause" if the Company, at its own expense,
elects to have a nationally recognized public accounting firm
resolve the accounting issue dispute and such accounting firm agrees
with the Company's position regarding such accounting issue; (ii)
termination of employment by the Employee at any time more than six
(6) months after the date of termination by the Company for any
reason of the employment of Xxxxx Xxxxxxxx as Chief Executive
Officer of the Company ("Xxxxxxxx'x Termination"), provided the
Employee, within sixty (60) days of the date of Xxxxxxxx'x
Termination, notifies the Company in writing of his intention to
terminate employment under this provision and specifies in such
notice his date of employment termination; (iii) the requirement by
the Company of the relocation of the Employee from Lubbock, Texas;
(iv) the change in job responsibilities of the Employee resulting in
the demotion of the Employee from the position of SVP-CF, which
demotion is caused by something other than would be cause for
termination of this Agreement for cause by the Company and other
than the non-performance of the Employee as defined later herein.
(d) The term "non-performance by the Employee" in the event of
termination of this Agreement by the Company means the determination
by a super-majority (greater than 75%) of the members of the Board
of Directors of the Company, in their sole and absolute discretion,
that the Employee is not performing his duties under this Agreement.
7. CONSEQUENCES OF TERMINATION.
(a) 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) subject to Section (g) hereof, this
Agreement terminates immediately, (ii) Employee or his legal
representative or estate, as the case may be, shall be eligible to
exercise any options granted and vested pursuant to Section 2(c)
hereof at the time of such death or disability, plus, if such death
or disability does not occur on [May 31] of a given year, a
fractional portion of those options which would have vested and
become exercisable pursuant to Section 2(c) hereof on the May 31
immediately following such death or disability based on a fraction
whose numerator is the number of months (including the month in
which the date of death or disability occurs) since the previous
[May 31] and whose denominator is twelve (12), in accordance with
the provisions of Section 2(c) hereof, and the option agreement
referred to
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therein, (iii) the Company will pay the Employee, or his legal
representative or estate, as the case may be, in full satisfaction
of all of its compensation (base salary and bonus) obligations under
this Agreement, an amount equal to the sum of any base salary due to
the Employee through the last day of employment, plus any accrued
bonus to which the Employee may have been entitled on the last day
of employment, but had not yet received, and (iv) the Employee's
benefits and rights under any Benefit Plan shall be paid, retained
or forfeited in accordance with the terms of such plan; provided,
however, that Employer shall have no obligation to make any payments
toward these benefits for Employee from and after termination.
(b) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR ANY REASON OTHER
THAN FOR CAUSE OR FOR NON-PERFORMANCE OF EMPLOYEE
(1) If the Employee's employment is terminated by the Company
prior to May 31, 2005, for any reason other than for cause or
non-performance of Employee, (i) subject to Section 7(g) hereof,
this Agreement terminates immediately, (ii) Employee or his
legal representative or estate, as the case may be, shall be
eligible to exercise any options granted but not exercised
pursuant to Section 2(c) hereof, which options shall be deemed
vested as of the date of the Employee's termination of
employment regardless of whether or not they are in fact
otherwise vested pursuant to Section 2(c) hereof on said date,
in accordance with the provisions of Section 2(c) and the option
agreement referred to therein, (iii) the Company will pay the
Employee, in full satisfaction of all of its compensation (base
salary and bonus) obligations under this Agreement, an amount
equal to the sum of any base salary due to the Employee through
the last day of employment, plus any accrued bonus to which the
Employee may have been entitled on the last day of employment,
but had not yet received; (iv) the Company will pay the
Employee, within sixty (60) days of such termination, a lump sum
severance payment equal to one (1) year's base salary as in
effect at the date of employment termination; and (v) the
Employee's benefits and rights under any Benefit Plan, other
than any basic health and medical benefit plan, shall be paid,
retained or forfeited in accordance with the terms of such plan;
provided, however, that Employer shall have no obligation to
make any payments toward these benefits for Employee from and
after termination.
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(2) Any payment pursuant to clause (b)(1)(iv) above (the
"Termination Payment"):
a. will be subject to offset for any advances, amounts
receivable, and loans, including accrued interest,
outstanding on the date of the employment termination; and
b. will not be subject to offset on account of any
remuneration paid or payable to the Employee for any
subsequent employment the Employee may obtain, whether
during or after the period during which the Termination
Payment is made, and the Employee shall have no obligation
whatever to seek any subsequent employment.
(c) CONSEQUENCES OF TERMINATION FOR CAUSE BY THE COMPANY. If the
Employee's employment is terminated prior to May 31, 2005, by the
Company for cause, (i) subject to Section 7(g) hereof, this
Agreement terminates immediately, (ii) Employee shall not be
eligible to exercise and shall forfeit any options granted and
vested, pursuant to Section 2(c) hereof at the time of such
employment termination that have not already been exercised by the
Employee at the time of such employment termination, (iii) the
Company will pay the Employee, in full satisfaction of all of its
compensation (base salary and bonus) obligations under this
Agreement, an amount equal to the sum of any base salary due to the
Employee through the last day of employment, plus any accrued bonus
to which the Employee may have been entitled on the last day of
employment, but had not yet received, and(iv) the Employee's
benefits and rights under any Benefit Plan shall be paid, retained
or forfeited in accordance with the terms of such plan; provided,
however, that Employer shall have no obligation to make any payments
toward these benefits for Employee from and after termination.
(d) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR ANY REASON OTHER
THAN FOR CAUSE OR EMPLOYEE'S DEATH OR DISABILITY.
(1) If, upon forty-five (45) days' prior written notice to the
Company by the Employee, the Employee's employment is terminated
by the Employee prior to May 31, 2005, for any reason other than
for cause or Employee's death or disability, (i) subject to
Section 7(g) hereof, this Agreement terminates immediately; (ii)
Employee or his legal representative or estate, as the case may
be, shall be eligible to exercise any options granted and
vested, but not exercised pursuant to
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Section 2(c) hereof at the time of such employment termination,
in accordance with the provisions of Section 2(c) and the option
agreement referred to therein; (iii) the Company will pay the
Employee, in full satisfaction of all of its compensation (base
salary and bonus) obligations under this Agreement, an amount
equal to the sum of any base salary due to the Employee through
the last day of employment, plus any accrued bonus to which the
Employee may have been entitled on the last day of employment,
but had not yet received; and (iv) the Employee's benefits and
rights under any Benefit Plan, other than any basic health and
medical benefit plan, shall be retained or forfeited in
accordance with the terms of such plan; provided, however, that
Employer shall have no obligation to make any payments toward
these benefits for Employee from and after termination.
(e) CONSEQUENCES OF TERMINATION BY THE EMPLOYEE FOR CAUSE .
(1) If, upon forty-five (45) days' prior written notice to the
Company by the Employee, the Employee's employment is terminated
by the Employee for cause prior to May 31, 2005, (i) subject to
Section 7(g) hereof, this Agreement terminates immediately, (ii)
Employee or his legal representative or estate, as the case may
be, shall be eligible to exercise any options granted and vested
pursuant to Section 2(c) hereof at the time of such employment
termination, plus, if such employment termination does not occur
on May 31 of a given year, a fractional portion of those options
which would have vested and become exercisable pursuant to
Section 2(c) hereof on the May 31 immediately following such
employment termination based on a fraction whose numerator is
the number of months (including the month in which the date of
employment termination occurs) since the previous May 31 and
whose denominator is twelve (12), in accordance with the
provisions of Section 2(c) and the option agreement referred to
therein; (iii) the Company will pay the Employee, in full
satisfaction of all of its compensation (base salary and bonus)
obligations under this Agreement, an amount equal to the sum of
any base salary due to the Employee through the last day of
employment, plus any accrued bonus to which the Employee may
have been entitled on the last day of employment, but had not
yet received; (iv) the Company will pay the Employee, within
sixty (60) days of such termination, a lump sum severance
payment equal to one (1) year's base salary as in effect at the
date of employment termination or the unpaid balance of
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the annual base salary which would have been payable to Employee
through May 31. 2005, whichever amount shall be less; and (v)
the Employee's benefits and rights under any Benefit Plan, other
than any basic health and medical benefit plan, shall be paid,
retained or forfeited in accordance with the terms of such plan;
provided, however, that Employer shall have no obligation to
make any payments toward these benefits for Employee from and
after termination.
(2) Any payment pursuant to clause (e)(1)(iv) above (the
"Termination Payment"):
a. will be subject to offset for any advances, amounts
receivable, and loans, including accrued interest,
outstanding on the date of the employment termination; and
b. will not be subject to offset on account of any
remuneration paid or payable to the Employee for any
subsequent employment the Employee may obtain, whether
during or after the period during which the Termination
Payment is made, and the Employee shall have no obligation
whatever to seek any subsequent employment.
(f) CONSEQUENCES OF TERMINATION BY THE COMPANY FOR NON-PERFORMANCE
BY THE EMPLOYEE.
(1) If the Employee's employment is terminated by the Company
for non-performance by the Employee prior to May 31, 2005, (i)
subject to Section 7(g) hereof, this Agreement terminates
immediately; (ii) Employee or his legal representative or
estate, as the case may be, shall be eligible to exercise any
options granted and vested but not exercised pursuant to Section
2(c) hereof at the time of such employment termination, in
accordance with the provisions of Section 2(c) hereof and the
option agreement referred to therein; (iii) the Company will pay
the Employee, in full satisfaction of all of its compensation
(base salary and bonus) obligations under this Agreement, an
amount equal to the sum of any base salary due to the Employee
through the last day of employment, plus any accrued bonus to
which the Employee may have been entitled on the last day of
employment, but had not yet received; (iv) the Company will pay
the Employee, within sixty (60) days of such termination, a lump
sum severance payment
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equal to one (1) year's base salary as in effect at the date of
employment termination or the unpaid balance of the annual base
salary which would have been payable to Employee through May 31,
2005, whichever amount shall be less; and (v) the Employee's
benefits and rights under any Benefit Plan, other than any basic
health and medical benefit plan, shall be paid, retained or
forfeited in accordance with the terms of such plan; provided,
however, that Employer shall have no obligation to make any
payments toward these benefits for Employee from and after
termination.
(2) Any payment pursuant to clause (f)(1)(iv) above (the
"Termination Payment"):
a. will be subject to offset for any advances, amounts
receivable, and loans, including accrued interest
outstanding on the date of the employment termination; and
b. will not be subject to offset on account of any
remuneration paid or payable to the Employee for any
subsequent employment the Employee may obtain, whether
during or after the period during which the Termination
Payment is made, and the Employee shall have no obligation
whatever to seek any subsequent employment.
(g) PRESERVATION OF CERTAIN PROVISIONS. Notwithstanding
any provisions of this Agreement to the contrary, the provisions
of Sections 8 through 13 hereof shall survive the expiration or
termination of this Agreement as necessary to give full effect
to all of the provisions of this Agreement.
8. NON-COMPETITION BY EMPLOYEE. During the term of this Agreement, the
Employee shall not, directly or indirectly, either as an Employee, Employer,
Consultant, Agent, Principal, Partner, Corporate Officer, Director, Shareholder,
Member, Investor or in any other individual or representative capacity, engage
or participate in any business that is in competition in any manner whatever
with the business of the Company. For these purposes, the business of the
Company is establishing and providing mobile wireless communications services
(the "Business"), including all aspects of the Business within the Service Area
as that term is defined in the Schedule of Definitions referred to in and
incorporated by reference into the Sprint Agreement. Furthermore, upon the
expiration of this Agreement or the termination of this Agreement prior to May
31, 2005, for any reason, the Employee expressly agrees not to
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engage or participate, directly or indirectly, either as an Employee, Employer,
Consultant, Agent, Principal, Partner, Stockholder, Corporate Officer, Director,
Shareholder, Member, Investor or in any other individual or representative
capacity, for a period of two (2) years in any business that is in competition
with the Business and that is located within and/or doing business within the
Service Area as defined above as in existence during the term of the Employee's
employment with the Company. The parties agree that the Company has a legitimate
interest in protecting the Business and goodwill of the Company that has
developed in the areas of the Company's Business and in the geographical areas
of this Covenant Not To Compete as a result of the operations of the Company.
The parties agree that the Company is entitled to protection of its interests in
these areas. The parties further agree that the limitations as to time,
geographical area, and scope of activity to be restrained do not impose a
greater restraint upon Employee than is necessary to protect the goodwill or
other business interest of the Company. The parties further agree that in the
event of a violation of this Covenant Not To Compete, that the Company shall be
entitled to the recovery of damages from Employee and/or an injunction against
Employee for the breach or violation or continued breach or violation of this
Covenant. The Employee agrees that if a court of competent jurisdiction
determines that the length of time or any other restriction, or portion thereof,
set forth in this Section 7 is overly restrictive and unenforceable, the court
may reduce or modify such restrictions to those which it deems reasonable and
enforceable under the circumstances, and as so reduced or modified, the parties
hereto agree that the restrictions of this Section 7 shall remain in full force
and effect. The Employee further agrees that if a court of competent
jurisdiction determines that any provision of this Section 7 is invalid or
against public policy, the remaining provisions of this Section 7 and the
remainder of this Agreement shall not be affected thereby, and shall remain in
full force and effect.
9. EXCEPTIONS TO NON-COMPETITION COVENANTS. Notwithstanding anything
herein to the contrary or apparently to the contrary, the following shall not be
a violation or breach of the non-competition covenants contained in this
Agreement. Employee may invest in the securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if (a) such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934 and
(b) the Employee does not beneficially own (as defined Rule 13d-3 promulgated
under the Securities Exchange Act of 1934) in excess of 5% of the outstanding
capital stock of such enterprise. Employee's investment in any company or entity
in which Employer is an owner or stockholder at the time of entering into this
Agreement shall also be an exception to the non-competition covenants. The names
of these companies or entities are shown on the attached Exhibit B, which is
incorporated herein by this reference as if copied at length. Notwithstanding
the foregoing, the Employee's relationship with other entities or business
interests of Employee shall in no way interfere with or detract from the duties
of the Employee to the Company as called for in this Agreement.
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10. CONFIDENTIAL INFORMATION. The Employee recognizes and acknowledges
that he will have access to certain information of members of the Company Group
(as defined below) and that such information is confidential and constitutes
valuable, special and unique property of such members of the Company Group. The
parties agree that the Company has a legitimate interest in protecting the
Confidential Information, as defined below. The parties agree that the Company
is entitled to protection of its interests in the Confidential Information. The
Employee shall not at any time, either during or subsequent to the term of this
Agreement, disclose to others, use, copy or permit to be copied, except in
pursuance of his duties on behalf of the Company, it successors, assigns or
nominees, any Confidential Information of any member of the Company Group
(regardless of whether developed by the Employee) without the prior written
consent of the Company. Employee acknowledges that the use or disclosure of the
Confidential Information to anyone or any third party could cause monetary loss
and damages to the Company. The parties further agree that in the event of a
violation of this covenant against non-use and non-disclosure of Confidential
Information, that the Company shall be entitled to a recovery of damages from
Employee and/or an injunction against Employee for the breach or violation or
continued breach or violation of this covenant.
As used herein, "Company Group" means the Company, and any entity that
directly or indirectly controls, is controlled by, or is under common control
with, the Company, and for purposes of this definition "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such entity, whether through the
ownership of voting securities, by contract or otherwise.
The term "Confidential Information" with respect to any person means
any secret or confidential information or know-how and shall include, but shall
not be limited to, the plans, financial and operating information, customers,
supplier arrangements, contracts, costs, prices, uses, and applications of
products and services, results of investigations, studies or experiments owned
or used by such person, and all apparatus, products, processes, compositions,
samples, formulas, computer programs, computer hardware designs, computer
firmware designs, and servicing, marketing or manufacturing methods and
techniques at any time used, developed, investigated, made or sold by such
person, before or during the term of this Agreement, that are not readily
available to the public or that are maintained as confidential by such person.
The Employee shall maintain in confidence any Confidential Information of third
parties received as a result of his employment with the Company in accordance
with the Company's obligations to such third parties and the policies
established by the Company.
11. DELIVERY OF DOCUMENTS UPON TERMINATION. The Employee shall deliver
to the Company or its designee at the termination of his employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made,
composed or received by the Employee, solely or jointly with others, that are in
the Employee's possession, custody, or control at termination
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and that are related in any manner to the past, present, or anticipated business
or any member of the Company Group. In this regard, the Employee hereby grants
and conveys to the Company all right, title and interest in and to, including
without limitation, the right to possess, print, copy, and sell or otherwise
dispose of, any reports, records, papers, summaries, photographs, drawings or
other documents, and writings, and copies, abstracts or summaries thereof, that
may be prepared by the Employee or under his direction or that may come into his
possession in any way during the term of his employment with the Company that
relate in any manner to the past, present or anticipated business of any member
of the Company Group.
12. DISPUTES. The Company and Employee agree to the following in regard
to any disputes between them arising under any of the provisions of this
Agreement other than the provisions of Sections 7 through 10 hereof. Nothing in
this Section 12 applies to or governs disputes arising under Sections 7 through
10 of this Agreement.
(a) MEDIATION. The Company and Employee agree to mediate any dispute
arising under the applicable provisions of this Agreement. In the
event of any such dispute, the parties, within thirty (30) days of a
written request for mediation, shall attend, in good faith, a
mediation in order to make a good faith reasonable effort to resolve
such dispute arising under this Agreement. The parties shall
attempt, in good faith, to agree to a mediator. If unable to so
agree, the parties, in that event, will move to arbitration as
provided in this Agreement and there will be no mediation. If this
good faith mediation effort fails to resolve any dispute arising
under this Agreement, the Company and Employee agree to arbitrate
any dispute arising under this Agreement. This arbitration shall
occur only after the mediation process described herein.
(b) ARBITRATION. The Company and Employee agree, as concluded by the
parties to this Agreement on the advice of their counsel, and as
evidenced by the signatures of the parties and of their respective
attorneys, that all questions as to rights and obligations arising
under the terms of this Agreement are subject to arbitration and
such arbitration shall be governed by the provisions of the Texas
General Arbitration Act (Texas Civil Practice and Remedies Code ss.
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
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(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 ss. 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 referred to in
Section 7 hereof or within the State of Texas.
(f) ARBITRATION AWARD. If there is only one arbitrator, his or her
decision shall be binding and conclusive. The submission of a
dispute to the arbitrators and the rendering of their decision shall
be a condition precedent to any right of legal action on the
dispute. A judgment confirming the award of the arbitrators may be
rendered by any court having jurisdiction; or the court may vacate,
modify, or correct the award in accordance with the provisions of
the Texas General Arbitration Act (Texas Civil Practice and Remedies
Code 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 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.
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(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.
(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.
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(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.
13. SUCCESSORS; BINDING AGREEMENT; ASSIGNMENT. The Company shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of the Company to expressly assume and agree in writing to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place, provided that the
Employee must be given the position as the Senior Vice President-Corporate
Finance ("SVP-CF") with the same authority, powers and responsibilities set
forth in Section 1 hereof with respect to the subsidiary or subdivision which
operates the business of the Company as it exists on the date of such business
combination. 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 all options will be immediately vested.
For purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the date of termination. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise. The Company may not
assign this Agreement, (i) except in connection with, and to the acquiror of,
all or substantially all of the business or assets of the Company, provided such
acquiror expressly assumes and agrees in writing to
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perform this Agreement as provided in this Section, and (ii) except in
connection with the Company becoming a wholly-owned subsidiary of Holdings, in
which event the Company may assign this Agreement and all of the Company's
rights and obligations hereunder to Holdings. The Employee may not assign his
rights or delegate his duties or obligations under this Agreement.
14. 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: TEXAS TELECOMMUNICATIONS, LP
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attn:_____________________________
With Copy to: Xxxx XxXxxxxxx, Xx.
Xxxxxxxx, Xxxxxx & Xxxxx, L.L.P.
P. O. Xxx 0000
Xxxxxxx, Xxxxx 00000-0000
If to the Employee: Xxxx Xxxxxxxx
0000 0xx Xxxxxx
Xxxxxxx, Xxxxx 00000
With Copy to: ___________________________
___________________________
___________________________
15. 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
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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) INVALID PROVISIONS. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding
shall not have the effect of invalidating or voiding the remainder
of this Agreement and the parties hereby agree that the portion so
held invalid, unenforceable or void shall, if possible, be deemed
amended or reduced in scope, or otherwise be stricken from this
Agreement to the extent required for the purposes of validity and
enforcement thereof.
(d) ENTIRE AGREEMENT. This Agreement and the Exhibits attached
hereto represent the entire agreement of the parties and shall
supersede any and all previous contracts, arrangements or
understandings, express or implied, between the Employee and the
Company with respect to the subject matter hereof.
(e) SECTION HEADINGS FOR CONVENIENCE ONLY. The section headings
herein are for the purpose of convenience only and are not intended
to define or limit the contents of any section.
(f) EXECUTION IN COUNTERPARTS. The parties may sign this Agreement
in counterparts, all of which shall be considered one and the same
instrument.
(g) GOVERNING LAW AND PERFORMANCE. This Agreement shall be governed
by the laws of the State of Texas and shall be deemed to be
executed in and performance called for in Lubbock, Lubbock County,
Texas, or at the Company's sole option, by the laws of the state or
states where this Agreement may be at issue in any litigation
involving the Company.
DATED this 5th day of June, 2000, to be effective June 1, 2000.
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COMPANY
TEXAS TELECOMMUNICATIONS, LP
By /s/ Xxxxx Xxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer
EMPLOYEE
/s/ Xxxx Xxxxxxxx
---------------------------------
XXXX XXXXXXXX
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EXHIBIT A
ALAMOSA PCS HOLDINGS, INC.
3Q00 OBJECTIVES
MINIMUM EXPECTED EXCEPTIONAL
------- -------- -----------
MARKET LAUNCH
Flagstaff Mar 01 Aug 00 June 00
Prescott Mar 01 Aug 00 June 00
Grand Junction Sept 00 Sept 00 July 00
Pueblo Sept 00 Sept 00 July 00
Appleton Nov 00 Nov 00 Sept 00
Fond du Lac Nov 00 Nov 00 Sept 00
GreenBay Nov 00 Nov 00 Sept 00
Manitowoc Nov 00 Nov 00 Sept 00
Oshkosh Nov 00 Nov 00 Sept 00
Sheboygon Nov 00 Nov 00 Sept 00
SUBSCRIBERS
Gross Additions 25,840 28,711 31,582
Net Additions 19,574 21,749 23,924
CAPITAL EXPENDITURES $224,618,000
ARPU $51.68 $54.40 $57.12
EBITDA ($14,502,277) ($13,188,888) ($11,865,499)
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EXHIBIT A
ALAMOSA PCS HOLDINGS, INC.
4Q00 OBJECTIVES
MINIMUM EXPECTED EXCEPTIONAL
MARKET LAUNCH
Flagstaff Mar 01 Aug 00 June 00
Prescott Mar 01 Aug 00 June 00
Grand Junction Sept 00 Sept 00 July 00
Pueblo Sept 00 Sept 00 July 00
Appleton Nov 00 Nov 00 Sept 00
Fond du Lac Nov 00 Nov 00 Sept 00
GreenBay Nov 00 Nov 00 Sept 00
Manitowoc Nov 00 Nov 00 Sept 00
Oshkosh Nov 00 Nov 00 Sept 00
Sheboygon Nov 00 Nov 00 Sept 00
SUBSCRIBERS
Gross Additions 39,250 43,611 47,972
Net Additions 30,861 34,290 37,719
CAPITAL EXPENDITURES $237,406,000
ARPU $51.61 $54.33 $57.05
EBITDA ($16,103,659) ($14,639,690) ($13,175,721)
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EXHIBIT B
LIST OF COMPANIES OR ENTITIES EXCEPTED FROM COVENANTS
First Xxxx Center, Inc.
First National Bank West Texas
ShaCo Xpress, Inc.
Xxxxxx Xxxxx Trucking, Inc.
X. Xxxxx, Inc.
Affordable Residential Communities, LLC
Included in the foregoing will be any successor companies or entities of any of
the above-named companies or entities.
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