Exhibit 10.38
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Amended and Restated Employment Agreement (this "AGREEMENT"), is executed
on this the __ day of November, 1999, to be effective as of September 1, 1999,
by and between Tritel, Inc., a Delaware corporation (the "COMPANY"), and Xxxxx
X. Xxxxxxxx, Xx., an individual who currently resides at 000 Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 ("EMPLOYEE").
WHEREAS, Company and Employee have previously entered into an Employment
Agreement dated January 7, 1999 ("PRIOR AGREEMENT"); and
WHEREAS, management differences have arisen between Company and Employee;
and
WHEREAS, pursuant to a Mutual Release and Termination Agreement of even
date herewith ("RELEASE"), Company and Employee have resolved their differences;
and
WHEREAS, Company and Employee have agreed to and entered into a Stock
Purchase Agreement regarding any interest of Employee in Company, and Employee,
Company and other persons and entities have agreed to and entered into a
Membership Purchase Agreement regarding any interest of Employee in Tritel
Management, LLC, a Mississippi limited liability company, both of even date
herewith (the Release, Stock Purchase Agreement, the Membership Purchase
Agreement and the other related documents executed pursuant thereto, all of even
date herewith collectively the ("TRANSACTION DOCUMENTS"); and
WHEREAS, as a material condition precedent to consummation of the
transactions contemplated by the Transaction Documents as set forth therein,
Company and Employee desire to amend and restate the Prior Agreement in its
entirety as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Company and Employee, intending to be legally bound, hereby agree as follows:
1. Employment.
1. Agreement to Employ. Upon the terms and subject to the conditions of
this Agreement, the Company hereby continues to employ Employee, and Employee
hereby agrees to continue employment with the Company. Except for the title of
Executive Vice President of Company as expressly provided for herein, Employee
hereby resigns, effective immediately, as an officer or representative of
Company, its wholly owned subsidiaries and Affiliates and as a director of
Company, its wholly owned subsidiaries and its Affiliates and from all board or
committee positions, and from all other positions of representative capacity or
authority for and on behalf of Company or its Affiliates. For purposes of this
Agreement, the term "AFFILIATE" means (i) Tritel Management, LLC, MSM, Inc.
(f/k/a Mercury Communications
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Company)("MSM"), AT&T Wireless PCS Inc. and TWR Cellular, Inc., (ii) any person
directly or indirectly controlling, controlled by or under common control with
the Company, any of its wholly owned subsidiaries and any of Tritel Management,
LLC, MSM, AT&T Wireless PCS Inc. and TWR Cellular, Inc. or (iii) any officer,
director, trustee or general partner of such person. For purposes of this
definition, the term "controls," "is controlled by," or "is under common control
with" shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person or entity,
whether through the ownership of voting securities, by contract or otherwise. It
is expressly understood and agreed that, for purposes of this Agreement, Mercury
Southern, LLC (which has previously been dissolved), Airwave Communications, LLC
(f/k/a Mercury PCS, LLC), Digital PCS, LLC (f/k/a Mercury PCS II, LLC), Mercury
International Ventures, Inc. and Mercury Wireless Management, Inc. shall not be
deemed to be an Affiliate of the Company.
2. Term. The term of Employee's employment shall continue until
December 31, 2002 (the "TERM").
2. Position and Duties.
During the Term, Employee shall serve as Executive Vice President of the
Company and shall have no duties or authority except as expressly agreed to in
writing by both Employee and Company. Provided, however, Employee shall cease to
serve as Executive Vice President and will no longer have any title as of the
earlier of: (i) December 31, 2001; and (ii) the effective date of Employee's
regular or full time employment with another entity, as either an officer,
employee, independent contractor, consultant or otherwise. Employee shall notify
Company in writing within three days after acceptance of any such other regular
or full time employment opportunities. It is the understanding of the Company
and Employee that isolated nonrecurring and temporary short term consulting
projects are not "regular or full time employment" but recurring short term
projects with the same or affiliated persons or entities do constitute "regular
or full time employment". Employee may resign his position as Executive Vice
President of the Company at any time by written notice to Company. Employee will
only have such duties as from time to time may reasonably be requested of him by
the Board of Directors and as Employee shall, upon such request, agree to
undertake. Employee shall not bind or enter into any contract or undertaking on
behalf of the Company or any subsidiary or officer of the Company without the
express prior and written authorization of the Company, executed by a senior
Company executive. Employee may not speak or appear on behalf of the Company
without the express prior and written authorization of the Company. Employee's
initial principal contact at the Company will be X.X. Xxxxxx, Xx.
During the Term, Employee shall be free to devote his entire business time
to seeking other employment or investment opportunities. Employee shall be free
to seek other employment, including employment within the wireless
telecommunications industry; provided
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that, prior to December 31, 1999, Employee shall not accept employment within
Company's existing footprint or service area from BellSouth Mobility, Powertel,
Century Tel, Cellular South Telepak, Sprint or GTE. Employee shall continue to
be subject to his common law, fiduciary and contract obligations regarding
treatment of Company confidential information and the provisions of Section 5
below.
3. Compensation.
1. Base Salary. The Company shall pay Employee an annual salary of
$225,000 during the Term. The Company shall pay Employee his base salary in
installments in accordance with normal payroll practices of the Company.
Acceptance of other employment or Employee's resignation as Executive Vice
President during the Term shall not reduce or mitigate in any manner payment of
the base salary to Employee.
2. Annual Bonus. For each calendar year or part thereof during the
Term, Employee shall receive an annual bonus of $112,500 payable within two (2)
weeks of December 31 of each year during the Term. Acceptance of other
employment or Employee's resignation as Executive Vice President during the Term
shall not reduce or mitigate in any manner payment of the annual bonus to
Employee.
4. Benefits, Perquisites and Expenses.
1. Benefit Plans. During the Term, Employee shall be eligible to
participate in any welfare benefit plans sponsored or maintained by the Company
for its executive officers, including, without limitation, any group life,
hospitalization, medical, dental, health, accident or disability insurance or
similar plan or program of the Company, in each case, whether now existing or
established hereafter, to the extent that Employee is eligible to participate in
any such plan under the generally applicable provisions thereof and on the same
basis and costs as such benefits are made available to other executive officers.
Employee shall not be entitled to any automobile allowance. Except as may be
required by law, Employee's right to Company benefits shall be discontinued as
of the effective date of Employee's regular or full time employment with another
entity, as either an officer, employee, independent contractor, consultant or
otherwise. In the event Employee resigns his position as Executive Vice
President of the Company at any time prior to expiration of the Term, Company
shall pay to Employee on a monthly basis the actual amount of insurance benefits
which would have been payable to Employee from the effective date of Employee's
resignation until the effective date of Employee's paid regular or full time
employment with another entity, as either an officer, employee, independent
contractor, consultant or otherwise, but in no event shall the period of such
benefits exceed the expiration of the Term unless otherwise required by law to
be made available to Employee at his expense.
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2. Office. Subject to the limitations set forth below, Employee may
obtain an office, telephone and secretary at the expense of the Company for a
period not to exceed two (2) years. The office will be located, at Employee's
option, in Jackson or the surrounding area, but will not be located within any
of the Company's offices. Company will use reasonable efforts to provide
Employee's phone number to persons who call the Company in seek of Employee. For
a period of up to nine months after the date hereof, Company will use reasonable
efforts to either forward Employee's mail which does not relate to Company to an
address designated by Employee or hold such mail for pick-up by Employee on at
least a monthly basis. Employee will have an expenditure/expense budget of
$100,000 per year for two (2) years from the effective date of this Agreement to
be spent for business purposes as determined by Employee (collectively,
"BUSINESS PURPOSES"). If paid directly by the Company, the expense of the
office, secretary and telephone will be deducted from the expenditure/expense
budget. Employee may use the remainder for Business Purposes, including travel
to business related meetings and employment opportunities at his discretion,
subject only to the timely submission of travel and expense vouchers accompanied
by original receipts. Up to an aggregate of $20,000 of such annual budget may be
used to reimburse fees and expenses of advisors or professionals retained by
Employee with respect to developing or evaluating new business opportunities;
provided that in no event shall any such fees or expenses be directly payable
by, or become a direct or continuing obligation of, the Company. In the event
Employee determines not to have an office or secretary, he may use the entire
expenditure/expense budget for business related travel and expenses. Employee's
right to this office/business expense provision shall not be discontinued upon
the resignation of Employee but shall be discontinued as of the effective date
of Employee's paid regular or full time employment with another entity, as
either an officer, employee, independent contractor, consultant or otherwise.
Employee has vacated his existing office at 0000 Xxxxx Xxxx Xxxxx, Xxxxxxx, XX
00000.
3. Business Expense. Within 45 days of the execution date hereof,
Employee shall submit vouchers for his un-reimbursed travel, entertainment and
other business expenses incurred prior to the effective date hereof; provided
however, Employee shall also be entitled to reimbursement of his reasonable
expenses incurred in connection with his initial trip to Connecticut in order to
discuss mediation with Xxxxxx X. Xxxxxx III not to exceed $2500.00. Such
vouchers shall be accompanied, where required by Company policy, by appropriate
receipts or other documentation. Such vouchers shall be reviewed promptly by
X.X. Xxxxxx and, within 30 days of submission, Employee shall be reimbursed or,
in the event that additional documentation or information is needed with respect
to specific vouchers or in the event certain vouchers are disapproved, Employee
shall be advised that further documentation or information is required with
respect to such voucher(s) or that specific vouchers have been disapproved and,
in such event, Employee shall as soon as practical, but in no event longer than
30 days, provide additional documentation or information in support of such
vouchers; provided that all vouchers that are accompanied by adequate
documentation shall be approved and paid. Upon submission of the supplemental
documentation/information the Company shall have 5 business days to
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approve and pay or disapprove such vouchers.
4. Indemnification. The Company shall, to the maximum extent
permitted by applicable law, the Company's certificate of incorporation or its
bylaws, defend with counsel chosen by Company, subject to Employee's approval
which shall not be unreasonably withheld, and indemnify Employee and hold
Employee harmless from and against any and all claims, losses or causes of
action arising from or out of Employee's performance as an officer, director or
employee of the Company or any of its subsidiaries or predecessors or in any
other capacity, including serving as a fiduciary, in which Employee has served
at the request of the Company which arose prior to the date hereof or which
arise out of duties assigned to Employee hereunder after the date hereof. If any
claim is asserted hereunder for which Employee reasonably believes in good faith
he is entitled to be indemnified, the Company shall pay Employee's reasonable
legal expenses (or cause such expenses to be paid), as may be reasonably
required but no less frequently than on a quarterly basis; provided that
Employee shall reimburse the Company for such amounts, plus simple interest
thereon at the 90-day United States Treasury Xxxx rate as in effect from time to
time, compounded annually, if Employee shall be found by a final, non-appealable
order of a court of competent jurisdiction not to be entitled to
indemnification. The indemnification obligations of the Company in this
paragraph shall survive any termination of this Agreement. Any indemnification
provided hereunder shall not affect or reduce the expense budget provided for in
Section 4.b. above or the compensation payable under Section 3 above.
5. Directors and Officers Liability Insurance. The Company has
obtained, and shall use all commercially reasonable efforts to maintain,
directors and officers liability insurance coverage covering Employee in amounts
customary for similarly situated companies in the telecommunications industry.
5. Noncompetition and Confidentiality.
1. Noncompetition. Prior to December 31, 1999, Employee shall not,
without the prior and written consent of the Company, which shall not be
unreasonably withheld, assist or become associated with any of the following:
BellSouth Mobility, Powertel, Century Tel, Cellular South Telepak, Sprint or
GTE, whether as a principal, partner, employee, consultant or shareholder (other
than as a holder of not in excess of 5% of the outstanding voting shares of any
publicly traded company). This provision shall supercede and replace all other
non-competition restrictions contained in that certain Stockholders' Agreement
by and among AT&T Wireless PCS Inc., Cash Equity Investors and Management
Stockholders and Tritel dated as of January 7, 1999, as amended and any other
agreement binding upon or benefitting the Company or Tritel Management, LLC
except the Transaction Documents.
2. Confidentiality. Without the prior written consent of the Company,
except to the extent required by an order of a court having competent
jurisdiction or under subpoena
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from a governmental body or agency, Employee shall not disclose any trade
secrets, customer lists, drawings, designs, information regarding product
development, marketing plans, sales plans, manufacturing plans, management
organization (including data and other information relating to members of the
Board of Directors and management), operating policies and manuals, business
plans, financial records, packaging design or other financial, commercial,
business or technical information relating to the Company or any of its
subsidiaries or Affiliates (collectively, "CONFIDENTIAL INFORMATION"), to any
third person, unless such Confidential Information has been previously disclosed
to the public by the Company or is in the public domain, other than by reason of
Employee's breach of this Paragraph, except that Employee may disclose
Confidential Information to the extent advisable in his sole discretion in
connection with (i) the performance of Employee's duties hereunder, or (ii) the
enforcement of Employee's rights under this Agreement, or (iii) any disclosures
that may be required by law, including securities laws.
3. No Disparaging Remarks. Employee and the Company for itself and its
directors, officers and employees, hereby agree that neither will make any
disparaging remarks regarding the other, and in the case of Company its
directors, officers and employees. Employee and the Company shall agree on the
text of any public announcement of the execution of this Agreement and the
Transaction Documents and the changes effected thereby; provided that the
Company shall be free to make any disclosure or filing with respect thereto
that, in the opinion of its counsel, is required to comply with any law, rule or
regulation the Company is or may be or become subject to now or in the future.
4. Company Property. Within fifteen (15) days following the execution
of this Agreement, Employee shall return to the Company all property of the
Company, and all copies thereof in Employee's possession or under his control,
except for those specific items of equipment being utilized by Employee and
Employee's assistant and currently in their possession which Employee is
currently using shall not be considered Company property and may be retained by
Employee, and all tangible embodiments of Confidential Information in Employee's
possession in whatever media such Confidential Information is maintained. Prior
to acceptance of employment with any other person or entity, Employee shall also
return to the Company all property of the Company, and all copies thereof in
Employee's possession or under his control, and all tangible embodiments of
Confidential Information then in Employee's possession or obtained during the
Term in whatever media such Confidential Information is maintained.
5. Non-Solicitation of Employees. During the Term and for one year
thereafter, Employee will not directly or indirectly induce any employee of the
Company or any of its wholly owned subsidiaries or Affiliates to terminate
employment with such entity, and will not directly or indirectly, either
individually or as owner, agent, employee, consultant or otherwise, employ or
offer employment to any person who is or was employed by the Company
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or a subsidiary thereof, unless such person shall have ceased to be employed by
such entity for a period of at least six months; provided, however, that nothing
contained in this Agreement shall prevent Employee from (i) immediately hiring
any person who has been terminated by Company, or (ii) engaging in a general
solicitation for employment that is not directed at employees of the Company or
any of its wholly owned subsidiaries or Affiliates.
6. Outside Consultants. The Company shall not assert any conflict or
otherwise object to Employee engaging or retaining, at his expense, in
connection with any matter unrelated to the Company or not in competition with
the Company, any outside professional, financial institution, vendor or service
provider, retained or engaged by the Company, including, but not limited to,
Lukas, McGowan, Xxxx & Gutierrez, Young, Xxxxxxxx, Xxxxxxxxx & Xxxxxxxx and
Xxxxx & Xxxx.
7. Injunctive Relief with Respect to Covenants. Each of Employee and
the Company acknowledges and agrees that the covenants and obligations of
Employee with respect to non-competition, confidentiality and Company property
and of the Company and its directors, officers and employees with respect to
non-disparagement, contained in this Section 5 relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause the Company in the case of Employee's covenants, and
Employee, in the case of the Company's covenants, irreparable injury for which
adequate remedies are not available at law. Therefore, each of Employee and the
Company agrees (i) that the Company shall be entitled to an injunction,
restraining order, or such other equitable relief as a court of competent
jurisdiction may deem necessary or appropriate to restrain Employee from
committing any violation of the covenants and obligations contained in this
Section 5 and (ii) that Employee shall be entitled to an injunction, restraining
order, or such other equitable relief as a court of competent jurisdiction may
deem necessary or appropriate to restrain the Company and its directors,
officers and employees from committing any violation of the covenants and
obligations contained in this Section 5. These injunctive remedies are
cumulative and are in addition to any other rights and remedies Employee and the
Company may have at law or in equity.
6. No Conflict With Prior Agreements; Due Authorization.
Employee represents to the Company that neither Employee's execution of
this Agreement or commencement of employment hereunder nor the performance of
Employee's duties hereunder conflicts with any contractual commitment on
Employee's part to any third party not affiliated with the Company. The Company
represents to Employee that it is fully authorized and empowered by action of
the Company's Board of Directors and by consent of its shareholders to enter
into this Agreement and that performance of its obligations under this Agreement
will not violate any agreement between it and any other person, firm or other
entity.
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7. Miscellanous.
1. Survival. Sections 4(d) and 5 shall survive the termination hereof.
2. Binding Effect. This Agreement shall be binding on and inure to the
Company and any person or entity which succeeds to the interest of the Company
(regardless of whether such succession occurs by operation of law) by reason of
the sale of all or a portion the Company's stock, a merger, consolidation, or
reorganization involving the Company or a sale of the assets of the business of
the Company (or portion thereof) and to Company's successors and assigns. This
Agreement shall also inure to the benefit of Employee's heirs, executors,
administrators and legal representatives. In the event of the death of Employee,
any remaining unpaid salary and bonus described in Section 3, and any
outstanding un-reimbursed expenses under paragraphs 4.b. and 4.c. hereunder
shall be paid to his estate, provided that Employee's estate shall have no
entitlement to any continuation of benefits or any other expense reimbursement.
3. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder shall be assigned or delegated by Employee to any other
person or entity. The Company may delegate to any of its direct or indirect
wholly-owned subsidiaries its obligations to provide compensation and benefits
hereunder, provided no such delegation shall relieve the Company of its
obligations hereunder.
4. Entire Agreement. This Agreement, together with the Transaction
Documents, constitutes the entire agreement between the parties hereto with
respect to the matters referred to herein, and no other agreement, oral or
otherwise, shall be binding between the parties unless it is in writing and
signed by the party against whom enforcement is sought. This Agreement
supercedes in its entirety the Prior Agreement which shall be of no further
force or effect. Except for expense reimbursement described in Section 4.c and
matters addressed in the Stock Purchase Agreement, nothing is due and owing
under the Prior Agreement now or in the future in any manner. There are no
promises, representations, inducements or statements between the parties other
than those that are expressly contained herein and in the Transaction Documents.
Each of the Company and Employee acknowledges that it/he is entering into this
Agreement of its/his own free will and accord, and with no duress, that it/he
has been represented and fully advised by competent counsel in entering into
this Agreement, that it/he has read it and that he understands this Agreement
and its legal consequences. No parol or other evidence may be admitted to alter,
modify or construe this Agreement, which may be altered, modified or amended
only by a writing signed by the parties hereto.
5. Severability; Reformation. In the event that one or more of the
provisions of this Agreement shall become invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provision contained herein shall not be affected
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thereby. In the event that any of Section 5 are not enforceable in accordance
with its terms, Employee and the Company agree that such Section shall be
reformed to make such Section enforceable in a manner which provides the Company
and Employee the maximum rights permitted at law.
6. Waiver. Waiver by any party hereto of any breach or default by the
other party of any of the terms of this Agreement shall not operate as a waiver
of any other breach or default, whether similar to or different from the breach
or default waived. No waiver of any provision of this Agreement shall be implied
from any course of dealing between the parties hereto or from any failure by
either party hereto to assert its or his rights hereunder on any occasion or
series of occasions.
7. Notices. Any notice required or desired to be delivered under this
Agreement shall be in writing and shall be delivered personally against receipt,
by courier service or by registered mail, return receipt requested, and shall be
effective upon actual receipt by the party to which such notice shall be
directed, and shall be addressed as follows (or to such other address as the
party entitled to notice shall hereafter designate in accordance with the terms
hereof):
If to the Company, to the attention of its Executive
Vice President - CFO at the Company's principal
offices.
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxx Xxxxxxx Xxxxx & Xxxxx, PLLC
1200 One Xxxxxxx Place
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
If to Employee:
Xxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
With a copy to:
Wm. Xxxxx Xxxxxx, Esq.
Xxxxxx Law Firm
0000 Xxxxx Xxxxx Xxxxx
0
Xxxxxxx, XX 00000
8. Headings. Headings to paragraphs in this Agreement are for the
convenience of the parties only and are not intended to be part of or affect the
meaning or interpretation hereof.
9. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but of which together shall constitute one
and the same instrument.
10. Withholding. All payments provided for herein shall be reduced by
any amounts required to be withheld by the Company from time to time under
applicable Federal, State or local income or employment tax laws or similar
statutes or other provisions of law then in effect.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Resolution of Disputes. All disputes, controversies and claims
arising in connection with this Agreement that are not settled by agreement
between the parties shall be finally settled under the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") in effect from time to
time. A single arbitrator shall be appointed by agreement between the parties
or, failing such agreement, by AAA. The arbitrator may grant any remedy that
(s)he deems just and equitable within the scope of this Agreement, including
specific performance. The award of the arbitrator shall be final and binding and
judgment thereon may be entered in any court having jurisdiction. The costs and
expenses (including reasonable attorney's fees) of the prevailing party shall be
borne and paid by the party that the arbitrator determines is the non-prevailing
party.
13. Legal Fees. The Company will pay promptly (not later than 30 days
from the delivery of the applicable invoice) hourly fees and reasonable expenses
of Employee's counsel incurred in connection with the negotiation and
documentation of this Agreement and the Transaction Documents upon presentation
of copies of redacted invoices sent to Employee by counsel which show unredacted
portions of descriptions of services, date, attorney time and fees and expenses.
14. Integrated Transaction. The provisions of this Agreement are an
integral part of, and are necessary consideration for, and the Transaction
Documents and the settlement of existing disputes between and among the parties.
Any breach of, or default under, this Agreement or any of the Transaction
Documents shall constitute a breach of, and a default under, each of this
Agreement and the Transaction Documents.
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15. Binding Nature. Subject to the restrictions contained herein, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns, if any.
(Intentionally left blank, signature pages follow on next page)
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and Employee has hereunto set his hand as of the
day and year first above written.
Company:
Tritel, Inc.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Employee:
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Xxxxx X. Xxxxxxxx, Xx., Individually
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