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EXHIBIT 10.45
January 22, 2001
Xxxxxx X. Xxxxx
0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Dear Xxxxx:
This letter (the "Letter Agreement") sets forth the terms of your employment
with Western Wireless Corporation ("WWC"), effective February 1, 2001.
1. Your title will be Senior Vice President, Engineering and Technical
Operations. In that capacity you will report to the President of WWC
(the "President").
2. Your responsibilities will include supervision of all engineering and
technical operations functions, together with such other duties as may
be assigned to you by the President. You will devote substantially all
of your business time and attention to the obligations delineated in
this Letter Agreement.
3. Your base compensation will be $150,000, payable in accordance with
standard payroll practices of WWC. In addition, you will have an
opportunity, as determined by WWC, to earn a performance bonus targeted
at $60,000 per year, to be paid quarterly. You will also receive options
to purchase 25,000 shares of WWC's common stock in connection with the
Company's FY2001 option grant, and will be eligible to continue, during
the course of your employment, participation in the option program at a
level to be determined by WWC. Your options will have a 4-year vesting
and shall contain change of control language consistent with other
officers of WWC. It is understood that nothing contained herein will
prevent WWC, in its sole and absolute discretion, from, at any time,
increasing your compensation, either permanently or for a limited
period, whether in base compensation, by bonus or otherwise, if WWC in
its sole discretion, shall deem it advisable to do so in order to
recognize and fairly compensate you for the value of your services to
WWC; provided, however, that nothing contained in this paragraph three
shall in any manner obligate WWC to make any such increase or provide
any such additional compensation or benefits.
4. WWC will reimburse you for all reasonable out-of-pocket business
expenses paid or incurred by you in connection with the performance of
your duties, upon submission of signed, itemized lists of such expenses
on general forms established for that purpose by WWC.
5. You will be entitled to participate in all group health and insurance
programs and all other fringe benefit or retirement plans or other plans
effective generally with respect to executives of WWC.
6. To the extent you have been granted Performance Units in the Western
Wireless International Corporation 1998 Stock Appreciation Plan
(hereinafter "Plan") as of the date of this letter, those Units will
continue to vest during your employment with WWC and be governed by the
terms and conditions of the Plan. As set forth in the Plan, if you
terminate your employment with WWC and any of its subsidiaries,
including Western Wireless International, your rights with respect to
the Units will terminate and be forfeited.
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7. WWC will enter into an Indemnification Agreement with you pursuant to
which WWC will agree to indemnify you against certain liabilities
arising by reason of your affiliation with WWC.
8. (a) Notwithstanding any other provision of this Letter Agreement, your
employment by WWC may be terminated by WWC at any time, with or without
Cause, as defined below. In the event of a termination for Cause you
will have no rights to severance payments. Termination for "Cause" means
(i) your gross neglect or willful material breach of your principal
employment responsibilities or duties, (ii) a final judicial
adjudication that you are guilty of a felony, (iii) fraudulent conduct
as determined by a court of competent jurisdiction in the course of your
employment with WWC or any of its subsidiaries, (iv) the breach by you
of the covenant set forth in paragraph nine, below, or (v) the material
breach by you of any other provision of this Letter Agreement which
continues uncured for a period of thirty (30) days after notice thereof
by WWC. In the event of your voluntary termination of employment with
WWC, you will have no rights to severance benefits.
(b) In the event of an involuntary termination for other than Cause
(which shall include your resignation as a direct result of (i) a
reduction in your base compensation and/or incentive bonus target
percentage, or (ii) the material breach by the Company of any provision
of this Letter Agreement which continues uncured for a period of thirty
(30) days after notice thereof by you), then (A) you will be entitled to
receive a severance payment in an amount equal to your accrued but
unpaid existing annual targeted incentive bonus through the date of
termination, 6 months of your then base compensation and an amount equal
to 6 months of your existing annual targeted incentive bonus; (B) WWC
will, at its expense, make all COBRA benefit payments on behalf of you
and your dependents for six (6) months following such involuntary
termination; and (C) with respect to any stock options previously
granted to you by WWC which remain unvested at the time of the
involuntary termination, notwithstanding the vesting language in the
stock option agreement pursuant to which such options were granted,
there shall be immediate vesting of that portion of each such grant of
unvested stock options as equals the product of the total number of such
options under such grant which remain unvested multiplied by a fraction
the numerator of which is the sum of (i) the number of days from the
date on which the last vesting of options under such grant took place to
and including the date on which the termination occurs plus (ii) 183 and
the denominator of which is the number of days remaining from the date
on which the last vesting of options under such grant took place to and
including the date on which the final vesting under such grant would
have occurred.
Your death or permanent disability will be deemed an involuntary
termination for other than Cause. "Permanent disability" shall mean your
inability substantially to render the services required hereunder for
eight (8) months in any eighteen (18) month period because of a physical
or mental condition, it being understood that until you have received
notice from WWC terminating this Letter Agreement, you will continue to
receive your base compensation and all other benefits to which you are
entitled under this Letter Agreement.
(c) You agree that upon termination of your employment by WWC for any
reason you will surrender to WWC all proprietary records, lists and
other documents obtained by you or entrusted to you during the course of
your employment by WWC, together with all copies of all such documents.
9. You agree not to disclose at any time, whether during the term of this
Letter Agreement or thereafter, any secret or confidential information
relating to WWC's or any of its subsidiaries' businesses, financial
condition or prospects, which information you have obtained while
employed by WWC or by any of its subsidiaries or any of the predecessors
in interest of any of
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them, except (i) as may be required in furtherance of the businesses of
WWC or of any of its subsidiaries, (ii) with WWC's express prior written
consent, (iii) if such information is made generally available to the
public through no fault of yours, or (iv) if such disclosure is required
by applicable law or regulation or by legal process and then only with
prompt written notice to WWC in advance of any such disclosure.
10. You agree that, during the term of your employment by WWC and for a
period of one (1) year immediately following the termination of your
employment with WWC for any reason whatsoever, you will not, either
directly or indirectly, for compensation or any other consideration,
individually or as an employee, broker, agent, consultant, lender,
contractor, advisor, solicitor, stockholder (provided that ownership of
5% or less of the outstanding stock of any corporation listed on a
national securities exchange is not prohibited), proprietor, partner, or
person having any other material economic interest in, affiliated with
or rendering services to any other entity, engage in or provide services
to or for a business that is substantially the same as or similar to
WWC's or its subsidiaries businesses and which competes within the
applicable commercial mobile radio services markets serviced by WWC or
its subsidiaries, directly or indirectly.
11. This Letter Agreement contains the entire agreement between you and WWC
with respect to your employment by WWC, other than human resource and
corporate policies which are to be executed by all employees. This
Letter Agreement may not be amended, waived, changed, modified or
discharged except by an instrument in writing executed by or on behalf
of you and WWC.
12. All notices, requests, demands and other communications with respect to
this Letter Agreement will be in writing and will be deemed to have been
duly given if delivered by hand, registered or certified mail (first
class postage and fees prepaid, return receipt requested), telecopier or
overnight courier guaranteeing next-day delivery, as follows:
a) to WWC:
Western Wireless Corporation
0000 - 000xx Xxxxxx XX, #000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier: (000) 000-0000
b) to you:
Xxxxxx X. Xxxxx
0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
and/or to such other persons and addresses as either you or WWC has
specified in writing to the other by notice as aforesaid.
13. If any part of this Letter Agreement is hereafter construed to be
invalid or unenforceable in any jurisdiction, the same will not affect
the remainder of the Letter Agreement or the enforceability of such part
in any other jurisdiction, which will be given full effect, without
regard to the invalid portions or the enforceability in such other
jurisdiction. If any part of this Letter Agreement is held to be
unenforceable because of the scope thereof, you and WWC agree that the
court making such determination will have the power to reduce the
duration and/or area of such provision and,
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in its reduced form, said provision shall be enforceable; provided,
however, that such court's determination will not affect the
enforceability of this Letter Agreement in any other jurisdiction beyond
such court's authority.
14. This Letter Agreement will be governed by and construed and interpreted
in accordance with the laws of the State of Washington without reference
to conflicts of laws principles.
Please signify your acceptance of the terms of this Letter Agreement by signing
where indicated below.
Sincerely yours,
WESTERN WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
President
AGREED TO AND ACCEPTED:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
