Exhibit 10.36
EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into and
effective as of April 9, 2004 (the "Effective Date"), by and between VALOR
TELECOMMUNICATIONS, LLC (the "Company), a Delaware limited liability company,
and XXXX X. XXXXXXX (the "Employee") to amend and restate the Employment
Agreement dated April 8, 2002 (the "Commencement Date") between the Employee and
the Company (the "2002 Employment Agreement").
WHEREAS, the Employee has been employed by the Company since the
Commencement Date and is currently the Company's President and Chief Operating
Officer;
WHEREAS, the Company desires to promote the Employee to the position of
Chief Executive Officer as of the Effective Date and induce the Employee to
continue his employment with the Company for the period provided in this
Agreement, and the Employee is willing to continue his employment with the
Company on a full time basis, all in accordance with the terms and conditions
set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto hereby convenant and
agree as follows:
1. EMPLOYMENT.
1.1. EMPLOYMENT WITH THE COMPANY. The Company hereby agrees to continue
the employment of the Employee, and the Employee hereby agrees to the
continuation of his employment with the Company, commencing on the Effective
Date and continuing for the period set forth in Section 2 hereof, all upon the
terms and conditions hereinafter set forth.
1.2. RESTRICTIONS ON EMPLOYEE. Except as previously disclosed to the
Company in writing by the Employee, the Employee affirms and represents that
since the Commencement Date he has not been and will not in the future be
subject to any obligation to any former employer or other party which is in any
way inconsistent with, or which imposes any restriction upon, the Employee's
continuation of employment hereunder with the Company, the continued employment
of the Employee by the Company or the Employee's undertakings under this
Agreement.
2. TERM OF EMPLOYMENT.
2.1. INITIAL TERM. Unless earlier terminated as provided in this
Agreement, the term of the Employee's employment under this Agreement shall be
for a period beginning on the Effective Date and ending on the later of (A)
March 31, 2007 and (B) the date that is two and one-half years subsequent to the
consummation of the IPO (as defined below) (the "Initial Term").
2.2. RENEWAL TERM. The term of the Employee's employment under this
Agreement shall be automatically renewed for additional one-year terms (each a
"Renewal Term") upon the expiration of the Initial Term or any Renewal Term
unless the Company or the Employee delivers to the other, at least ninety (90)
days prior to the expiration of the Initial Term or the then current Renewal
Term, as the case may be, a written notice specifying that the term of the
Employee's employment will not be renewed at the end of the Initial Term or such
Renewal Term, as the case may be. The period from the Effective Date until March
31, 2007 or, in the
event that the Employee's employment hereunder is earlier terminated as provided
herein or renewed as provided in this Section 2.2, such shorter or longer
period, as the case may be, is hereinafter called the "Employment Term".
3. DUTIES.
3.1. POSITION. As of the Effective Date, the Employee shall be promoted to
the position of and employed as the Chief Executive Officer of the Company,
shall faithfully perform and discharge such duties as inhere in the position of
Chief Executive Officer and as may be specified in the Limited Liability Company
Agreement of the Company with respect to such position, and shall also perform
and discharge such other duties and responsibilities consistent with such
position as the Board of Directors of the Company (the "Board of Directors")
shall from time to time determine. The Employee shall report directly to the
Board of Directors and/or the Chairman of the Board of Directors and so long as
Employee serves as the Chief Executive Officer of the Company, Employee shall be
a member of the Board of Directors.
3.2. LOCATION. The Employee shall perform his duties principally at
offices of the Company in Dallas, Texas, with such travel to such other
locations from time to time as the Board of Directors may reasonably prescribe.
3.3. FULL EFFORTS. Except as may otherwise be approved in advance by the
Board of Directors and except during vacation periods and reasonable periods of
absence due to sickness, personal injury or other disability and reasonable
devotion of time to the Employee's personal financial affairs, the Employee
shall devote his full business time throughout the Employment Term to the
services required of him hereunder. The Employee shall render his business
services exclusively to the Company and its subsidiaries during the Employment
Term and shall use his best efforts, judgment and energy to improve and advance
the business and interests of the Company and its subsidiaries in a manner
consistent with the duties of his position. Notwithstanding the foregoing, the
Employee shall be entitled to (A) participate as a director or advisor to one or
more associations or community or charitable organizations in the Dallas/Ft.
Worth area, (B) serve on the board of directors of (x) United States Telecom
Association and (y) one additional public company subsequent to the first
anniversary of the IPO and (z) two additional public companies subsequent to the
second anniversary of the IPO and (C) undertake any other activities not
specifically authorized herein with the approval of the Board of Directors, so
long as the activities described in clause (A), (B) or (C) above do not, either
individually or in the aggregate, (i) involve a substantial amount of the
Employee's time, (ii) impair in any material respect the Employee's ability to
perform his duties under this Agreement or (iii) violate the provisions of
Section 9 of this Agreement. As used herein, "IPO" shall mean the initial public
offering of income deposit securities ("IDS Units") by a newly formed direct or
indirect parent of the Company and "consummation" shall mean the closing of the
sale of the IDS Units to underwriters participating in the IPO pursuant to an
underwriting agreement.
4. SALARY AND BONUS.
4.1. SALARY. As compensation for the performance by the Employee of the
services to be performed by the Employee hereunder during the Employment Term,
the Company shall pay
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the Employee a base salary at the annual rate of Five Hundred Thousand Dollars
($500,000) (said amount, together with any increases thereto as may be
determined from time to time upon consideration no less frequently than annually
by the Compensation Committee of the Board of Directors in its sole discretion,
being hereinafter referred to as "Salary"). Any Salary payable hereunder shall
be paid in regular intervals in accordance with the Company's payroll practices
from time to time in effect.
4.2. BONUS. The Employee shall be eligible to receive bonus compensation
from the Company in respect of each fiscal year (or portion thereof) occurring
during the Employment Term in an amount targeted at 100% of his Salary in
accordance with the Company's management bonus plan as in effect from time to
time (pro rated for any portion of a fiscal year occurring during the Employment
Term), in each case as may be determined by the Board of Directors, in its sole
discretion on the basis of performance-based criteria consistent with the
Company's business plan to be established by the Board of Directors in its sole
discretion and disclosed to the Employee prior to the commencement of each
fiscal year of the Company. For the purpose of calculating Employee's target
bonus for fiscal year 2004, Employee's Salary for fiscal year 2004 shall be
deemed to be $500,000.
4.3. WITHHOLDING. All amounts payable to Employee as compensation
hereunder shall be subject to all required withholding by the Company.
5. OTHER BENEFITS; EQUITY INTERESTS.
5.1. GENERAL. During the Employment Term, the Employee shall:
(A) be eligible to participate at a level commensurate with his
position in any employee equity purchase plans or programs that may be adopted
for the benefit of the Company's officers or employees generally and in any
employee fringe or other employee benefits and pension and/or profit sharing
plans that may be provided by the Company for its senior executive employees in
accordance with the provisions of any such plans, as the same may be in effect
from time to time;
(B) be eligible to participate in any medical and health plans and
other employee welfare benefit plans that may be provided by the Company for its
senior executive employees in accordance with the provisions of any such plans,
as the same may be in effect from time to time;
(C) be entitled to the number of paid vacation days in each calendar
year determined by the Company from time to time for its senior executive
officers, provided that such number of paid vacation days in each calendar year
shall not be less than twenty work days (four calendar weeks); the Employee
shall also be entitled to all paid holidays and personal days given by the
Company to its senior executive officers;
(D) be entitled to sick leave, sick pay and disability benefits in
accordance with any Company policy that may be applicable to senior executive
employees from time to time;
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(E) be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by the Employee in the performance of
his duties hereunder in accordance with the Company's normal policies from time
to time in effect;
(F) be entitled to a one time reimbursement for documented
initiation fees associated with Employee's membership to a golf or country club
up to a maximum amount of $20,000; and
(G) be entitled to a reimbursement for reasonable and documented
automobile leasing expenses, attorney fees incurred in connection with
documenting and negotiating this Agreement and any related agreements or
arrangements and club membership dues for up to $1,500 per month.
During the Employment Term, the Company will obtain for the benefit of the
Employee (i) term life insurance coverage providing death benefits to
beneficiaries designated by the Employee equal to four times Salary, but not
less than $2,000,000 and (ii) long-term disability insurance coverage providing
the Employee with long-term disability benefits equal to 60% of his Salary
payable on and after the 181st day of the Employee's qualifying disability,
provided, however, that (x) annual premiums for the insurance coverage described
in (i) and (ii) above cannot exceed $25,000 and (y) the foregoing assumes the
insurability of the Employee. The Company and the Employee agree that the
Employee's existing life and disability insurance policies may, if permitted to
be carried over to the Company, wholly or partially satisfy the Company's
obligations under this paragraph (subject nevertheless to clause (x) above). In
the event that the annual premiums for the insurance coverage described in (i)
and (ii) above would exceed $25,000, then, at the Employee's option, either (A)
the coverage will be reduced to the extent necessary to keep the annual premiums
under $25,000 or (B) the Employee shall pay the amount of such excess.
6. CONFIDENTIAL INFORMATION. The employee hereby covenants, agrees and
acknowledges as follows:
6.1. ACCESS TO CONFIDENTIAL INFORMATION. The Employee has and will have
access to and will participate in the development of or be acquainted with
confidential or proprietary information and trade secrets related to the
business of the Company and any present or future subsidiaries or affiliates of
the Company (collectively with the Company, the "Companies"), including but not
limited to (i) customer lists; related records and compilations of information;
the identity lists or descriptions of any new customers, referral sources or
organizations; financial statements; cost reports or other financial
information; contract proposals or bidding information; business plans; training
and operations methods and manuals; personnel records; software programs;
reports and correspondence; and management systems, policies or procedures,
including related forms and manuals; (ii) information pertaining to future
developments such as future marketing or acquisition plans or ideas, and
potential new business locations and (iii) all other tangible and intangible
property, which are used in the business and operations of the Companies but not
made public. The information and trade secrets relating to the business of the
Companies described hereinabove in this Section 6.1 are hereinafter referred to
collectively as the "Confidential Information", provided that the term
Confidential Information shall not include any information (x) that is or
becomes generally publicly available (other than as a result of
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violation of this Agreement by the Employee), (y) that the Employee receives on
a nonconfidential basis from a source (other than the Companies or their
representatives) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the Companies or (z) that was in the
possession of the Employee prior to disclosure by the Companies.
6.2. NON-DISCLOSURE AND NON-USE. The Employee shall not disclose, use or
make known for his or another's benefit other than for the benefit of the
Company and its affiliates any Confidential Information or use such Confidential
Information in any way. The Employee may disclose Confidential Information when
required by a third party and applicable law or judicial process, but only after
providing immediate notice to the Company of any third party's request for such
information, which notice shall include the Employee's intent to disclose any
Confidential Information with respect to such request.
6.3. NO REMEDY AT LAW. The Employee acknowledges and agrees that a remedy
at law for any breach or threatened breach of the provisions of this Section 6
would be inadequate and, therefore, agrees that the Companies shall be entitled
to seek injunctive relief in addition to any other available rights and remedies
in case of any such breach or threatened breach by the Employee; provided,
however, that nothing contained herein shall be construed as prohibiting the
Companies from pursuing any other rights and remedies available for any such
breach or threatened breach.
6.4. RETURN OF CONFIDENTIAL INFORMATION. The Employee agrees that upon
termination of his employment with the Company for any reason, the Employee
shall forthwith return to the Company all Confidential Information in whatever
form maintained (including, without limitation, computer discs and other
electronic media).
6.5. SURVIVAL. The obligations of the Employee under this Section 6 shall,
except as otherwise provided herein, survive the termination of the Employment
Term and the expiration or termination of this Agreement.
6.6. BINDING EFFECT. Without limiting the generality of Section 10 hereof,
the Employee hereby expressly agrees that the foregoing provisions of this
Section 6 shall be binding upon the Employee's heirs, successors and legal
representatives.
7. TERMINATION.
7.1. TERMINATION OF EMPLOYMENT. The Employee's employment hereunder shall
be terminated upon the occurrence of any of the following:
(A) death of the Employee;
(B) if Employee becomes physically or mentally incapacitated or
disabled so that he is unable to perform for the Company substantially the same
services as he performed prior to incurring such incapacity or disability (the
Company, at its option and expense, is entitled to retain a physician reasonably
acceptable to the Employee to confirm the existence of such incapacity or
disability, and the determination of such physician shall be binding upon the
Company and the Employee), and such incapacity or disability exists for a period
of one hundred
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eighty (180) or more days, whether or not consecutive, within any period of
twelve (12) consecutive months;
(C) the Company giving written notice, at any time to the Employee
that the Employee's employment is being terminated for "cause" (as defined
below);
(D) the Company giving written notice, at any time (including,
without limitation, following a change of control of the Company or a sale of
substantially all of the assets of the Company), to the Employee that the
Employee's employment is being terminated or is not being renewed, other than
pursuant to clause (a), (b) or (c) above;
(E) the Employee terminates his employment hereunder for "Good
Reason" (as defined below); or
(F) the Employee terminates his employment hereunder for any reason
whatsoever (whether by reason of retirement, resignation, or otherwise), other
than for "Good Reason",
The following actions, failures and events by or affecting the Employee
shall constitute "cause" for termination within the meaning of clause (c) above:
(A) has been convicted of a felony or a crime involving moral turpitude, or (B)
has used alcohol or drugs on an ongoing basis to an extent that materially
interferes with the performance by the Employee of his duties under this
Agreement, or (C) has embezzled or misappropriated Company funds or property, or
(D) has willfully and knowingly violated Section 6 or Section 9 hereof, or (E)
has willfully and continually failed to substantially perform his duties
hereunder (other than any such failure resulting from mental or physical
illness) after written demand for substantial performance is delivered by the
Board of Directors which specifically identifies the manner in which the Board
of Directors believes the Employee has not substantially performed his duties
and the Employee fails to cure his nonperformance within fifteen (15) business
days of receiving such notice. Notwithstanding the occurrence of any event
listed in clauses (A) through (E) above, the Employee shall not be deemed to
have been terminated for cause without (1) reasonable notice to the Employee
setting forth the reasons for the Company's intention to terminate for Cause,
(2) an opportunity for the Employee together with his counsel, to be heard
before the Board of Directors and (3) delivery to the Employee of a notice of
termination from the Board of Directors finding that in the good faith opinion
of a majority of the Board of Directors was guilty of the conduct referred to in
such notice.
For purposes of this Agreement, "Good Reason" means (1) any material
breach by the Company of its obligations under this Agreement, (2) any
substantial diminution of the Employee's responsibilities as an officer of the
Company as set forth in this Agreement and the Company's Limited Liability
Company Agreement, and in each such case, such breach or diminution shall
continue unremedied for a period of fifteen (15) days after written notice
thereof to the Company, (3) Employee is required to report to any person or
group of persons other than the Board of Directors or the Chairman of the Board
of Directors (or the board of directors or chairman of the board of directors of
a parent entity of the Company) or (4) any requirement by the Company that the
Employee relocate to a geographic area beyond a 50 mile radius of the Company's
current headquarters to which he objects.
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7.2. SEVERANCE COMPENSATION.
(A) In the event that the Employee's employment is terminated by the
Company pursuant to clause (d) of Section 7.1 above or by the Employee pursuant
to clause (e) of said Section 7.1, whether during the Initial Term or during any
Renewal Term pursuant to Section 2.2 above, then the Company shall, subject to
(A) Section 7.2(c) and (B) execution by Employee of a release agreement in
substantially the form attached hereto as Exhibit A, and in partial
consideration of Employee's continuing obligations hereunder after such
termination, (i) pay to the Employee, as severance pay or liquidated damages or
both, monthly payments at the rate per annum of his Salary at the time of such
termination for a period of twelve (12) months after such termination plus 100%
of the Employee's target bonus provided for in Section 4.2 with respect to the
fiscal year in which such termination occurs (such bonus to be payable within
thirty days after the close of such fiscal year), each subject to customary
withholding and other appropriate deductions and (ii) continue to provide the
Employee with (A) life insurance and (B) if such termination occurs prior to
March 31, 2005, medical and health insurance coverage, each at levels comparable
to those in effect prior to such termination for a period from the date of such
termination to the earlier to occur of (x) the date which is twelve (12) months
after such termination and (y) the date upon which the Employee becomes eligible
to be covered for such benefits through his employment with another employer at
no greater cost to the Employee.
(B) In the event that Employee's employment is terminated for any
reason (either by the Company or the Employee) subsequent to March 31, 2005, the
Employee and his spouse, subject to Section 7.2(c), shall be entitled to
coverage under the Company's health insurance plans after such termination at
the same cost and other terms as offered by the Company to other senior
executives still employed by the Company until such time as the Employee becomes
employed by another person or entity that makes available health insurance
coverage to its employees.
(C) If the Employee violates either Section 6 or Section 9 hereof,
the Company shall no longer have any obligations to the Employee and may cease
making all payments due and owing under Section 7.2(a) above and cease providing
coverage under its health insurance plans to the Employee and his spouse as
required by Section 7.2(b) above.
7.3. NO OTHER COMPENSATION. Notwithstanding anything to the contrary
expressed or implied herein, except as required by applicable law and except as
set forth or described in Section 7.2 above, the Company (and its subsidiaries
and affiliates) shall not be obligated to make any payments to the Employee or
on his behalf of whatever kind or nature by reason of the Employee's cessation
of employment (including, without limitation, by reason of termination of the
Employee's employment by the Company for "cause"), other than (i) such amounts,
if any, of his Salary as shall have accrued and remained unpaid as of the date
of said cessation and (ii) such other amounts, if any, which may be then
otherwise payable to the Employee pursuant to the terms of the Company's
benefits plans or pursuant to clause (e) of Section 5.1 above.
7.4. NO INTEREST PAYABLE. No interest shall accrue on or be paid with
respect to any portion of any payments hereunder.
8. NON-ASSIGNABILITY.
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8.1. GENERAL PROHIBITION. Neither this Agreement nor any right or interest
hereunder shall be assignable by the Employee or his beneficiaries or legal
representatives without the Company's prior written consent; provided, however,
that nothing in this Section 8.1 shall preclude (i) the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity. This Agreement may not be assigned by the Company except
with the Employee's prior written consent, provided, however, that the Company
may assign this Agreement to an affiliate of the Company (including to a direct
or indirect parent ("Newco")) with the financial resources to fulfill the
Company's obligations hereunder and provided further, unless such assignment is
to Newco upon consummation of an initial public offering of any class of Newco's
securities, such assignment will not relieve the Company of its obligations
hereunder.
8.2. NO ASSIGNMENT OF RIGHT TO PAYMENTS. Except as required by law, no
right to receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or to
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
9. RESTRICTIVE COVENANTS.
9.1. COMPETITION. During the Employment Term and in the event the
Employee's employment is terminated (x) by the Company pursuant to clause (c) or
clause (d) of Section 7.1 above or (y) by the Employee as provided in clause (f)
of said Section 7.1 during the Initial Restriction Period (as defined below) and
the Extended Restriction Period (as defined below), if applicable, the Employee,
in consideration of compensation to be paid to Employee hereunder, will not
directly or indirectly (as a director, officer, executive employee, manager,
consultant, independent contractor, advisor or other-wise) engage in competition
with, or own any interest in, perform any services for, participate in or be
connected with any business or organization which engages in competition with
any of the Companies in a manner described in Section 9.5 below, provided,
however, that the provisions of this Section 9.1 shall not be deemed to prohibit
(A) the Employee's ownership of not more than two percent (2%) of the total
shares of all classes of stock outstanding of any publicly held company, whether
through direct or indirect stock holdings so long as Employee has no active
participation in such company or (B) any of the current activities permitted by
the second last sentence of Section 3.3.
9.2. NON-SOLICITATION. During the Employment Term and in the event the
Employee's employment is terminated (x) by the Company pursuant to clause (c) of
Section 7.1 above or (y) by the Employee as provided in clause (f) of said
Section 7.1, during the Initial Restriction Period and the Extended Restriction
Period, if applicable, the Employee, in consideration of compensation to be paid
to Employee hereunder, will not directly or indirectly induce or attempt to
induce any employee of any of the Companies to leave the employ of the Company
or such subsidiary or affiliate, or in any way interfere with the relationship
between any of the Companies and any employee thereof.
9.3. NON-INTERFERENCE. During the Employment Term and, in the event the
Employee's employment is terminated (x) by the Company pursuant to clause (c) or
clause (d) of Section 7.1 above or (y) by the Employee as provided in clause (f)
of said Section 7.1, during the
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Initial Restriction Period and the Extended Restriction Period, if applicable,
the Employee, in consideration of compensation to be paid to Employee hereunder,
will not directly or indirectly hire, engage, send any work to, place orders
with, or in any manner be associated with any supplier, contractor,
subcontractor or other business relation of any of the Companies if such action
by him would have an adverse effect on the business, assets or financial
condition of any of the Companies, or materially interfere with the relationship
between any such person or entity and any of the Companies (including, without
limitation, make any negative or disparaging statement or communication
regarding any of the Companies either publicly or to any such person or entity).
9.4. RESTRICTION PERIODS; SEVERANCE COMPENSATION DURING EXTENDED
RESTRICTION PERIOD. The restrictions set forth in Sections 9.1, 9.2 and 9.3
shall initially apply for a period of twelve (12) months subsequent to the
termination of Employee's employment for any reason (the "Initial Restriction
Period") and, in the event the Employee's employment is terminated within two
years of the Effective Date, then the Company may, at its option, extend the
Initial Restriction Period by an additional twelve (12) month period (such
additional twelve (12) month period, the "Extended Restriction Period"). During
the Extended Restriction Period, subject to continued compliance by Employee
with Section 6 and Section 9 hereof and in consideration of Employee's
continuing obligations during the Extended Restriction Period, the Company shall
pay Employee the same amounts and provide the same benefits that were provided
to Employee during the Initial Restriction Period pursuant to Section 7.2 at
such times and subject to such restrictions as provided in Section 7.2.
9.5. CERTAIN DEFINITIONS. For purposes of this Section 9, a person or
entity (including, without limitation, the Employee) shall be deemed to be a
competitor of one or more of the Companies, or a person or entity (including.
without limitation, the Employee) shall be deemed to be engaging in competition
with one or more of the Companies, if such person or entity conducts, or, to the
knowledge of the Employee, plans to conduct, the Specified Business (as
hereinafter defined) as a significant portion of its business in any of the
local telephone exchange markets served by the Companies. For purposes of this
Agreement, "Specified Business" means (A) providing local telephone service or
engaging in business conducted by the Company at the time of termination of the
Employee's employment with the Company or (B) conducting, operating, carrying
out or engaging in the business of managing any entity described in clause (A).
9.6. CERTAIN REPRESENTATIONS OF THE EMPLOYEE. In connection with the
foregoing provisions of this Section 9, the Employee represents that his
experience, capabilities and circumstances are such that such provisions will
not prevent him from earning a livelihood. The Employee further agrees that the
limitations set forth in this Section 9 (including, without limitation, time and
territorial limitations) are reasonable and properly required for the adequate
protection of the current and future businesses of the Companies. It is
understood and agreed that the covenants made by the Employee in this Section 9
(and in Section 6 hereof) shall survive the expiration or termination of this
Agreement.
9.7. INJUNCTIVE RELIEF. The Employee acknowledges and agrees that a remedy
at law for any breach or threatened breach of the provisions of Section 9 hereof
would be inadequate and, therefore agrees that the Company and any of its
subsidiaries or affiliates shall be entitled to
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seek injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach; provided, however, that nothing
contained herein shall be construed as prohibiting the Company or any of its
affiliates from pursuing any other rights and remedies available for any such
breach or threatened breach.
10. BINDING EFFECT. Without limiting or diminishing the effect of Section 8
hereof, this Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, legal representatives and
assigns.
11. NOTICES. All notices which are required or may be given pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid,
(iii) sent via a nationally recognized overnight courier or (iv) sent via
facsimile confirmed in writing to the recipient, if to the Company at the
Company's principal place of business, and if to the Employee, at his home
address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
12. LAW GOVERNING; WAIVER OF JURY TRIAL. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas. The parties
hereto hereby waive, to the fullest extent permitted by applicable law, any
right to trial by jury with respect to any action or proceeding arising out of
or relating to this Agreement.
13. SEVERABILITY. The Employee agrees that in the event that any court of
competent jurisdiction shall finally hold that any provision of Section 6 or 9
hereof is void or constitutes an unreasonable restriction against the Employee,
the provisions of such Section 6 or 9 shall not be rendered void but shall apply
with respect to such extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances. If any part of this Agreement
other than Section 6 or 9 is held by a court of competent jurisdiction to be
invalid, illegible or incapable of being enforced in whole or in part by reason
of any rule of law or public policy, such part shall be deemed to be severed
from the remainder of this Agreement for the purpose only of the particular
legal proceedings in question and all other covenants and provisions of this
Agreement shall in every other respect continue in full force and effect and no
covenant or provision shall be deemed dependent upon any other covenant or
provision.
14. WAIVER. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at anyone or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
15. ENTIRE AGREEMENT; MODIFICATIONS. Unless otherwise specified, this
Agreement constitutes the entire and final expression of the agreement of the
parties with respect to the subject matter hereof and supersedes the 2002
Employment Agreement and all other prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof. The parties
acknowledge that the 2002 Employment Agreement has terminated, and all rights,
obligations and liabilities of the Company, its subsidiaries and their
respective predecessors, on
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the one hand, and Employee, on the other hand, under the 2002 Employment
Agreement shall be extinguished and the 2002 Employment Agreement shall be null
and void. This Agreement may be modified or amended only by an instrument in
writing signed by both parties hereto.
16. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
date first written above.
/s/ Xxxx X. Xxxxxxx
----------------------------------------
XXXX X. XXXXXXX
("Employee")
VALOR TELECOMMUNICATIONS, LLC
By: /s/ Xxxxxxx X. xxXxxxxx
-------------------------------------
Title: Director and Authorized Signatory
("the Company")
EXHIBIT A
RELEASE AGREEMENT
In consideration of receipt of severance payments and benefits as set
forth in Section 7 of the Amended and Restated Employment Agreement, dated as of
March 31,2004, between Valor Telecommunications, LLC (the "Company") and Xxxx X.
Xxxxxxx (the "Employment Agreement"), I, Xxxx J, Xxxxxxx, hereby release and
discharge the Company and each of its subsidiaries and each of their respective
employees, officers, directors, equityholders, and agents (collectively, the
"Company") from, and waive any and all claims, demands, damages, causes of
action or suits (collectively, "Claims") of any kind or nature whatsoever that I
may have had or may now have against any of them (including, without limitation,
any Claims arising out of or related to my employment with the Company or the
termination thereof), whether arising under contract, tort, statute or
otherwise, and whether I know of the claim or not, including, without
limitation, Claims arising under Title VII of the Civil Rights Act of 1964, the
Age Discrimination in Employment Act, the Americans with Disabilities Act, the
Equal Pay for Equal Work Act, and any other applicable federal, state or local
statutes, rules, codes, or ordinances. This release does not cover my rights to
the severance payments and benefits provided in Section 7 of the Employment
Agreement subject to any restrictions set forth therein.
I have not, and shall not hereafter, institute any lawsuit of any kind
whatsoever, or file any complaint or charge, against the Company or any of its
former or present employees, officers, directors, equityholders, agents,
subsidiaries, or affiliates, and any of their successors or assigns, under any
federal, state or local statute, rule, regulation or principle of common law
growing out of events released hereunder. I shall not seek employment or
reemployment with the Company. I acknowledge that I have had at least 21 days to
review and consider this release agreement before accepting it. I have been
advised to consult with an attorney before signing this release agreement.
----------------------------------------
Xxxx X. Xxxxxxx
Dated:
----------------------------------
Acknowledged and Agreed as of
,
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VALOR TELECOMMUNICATIONS, LLC
By:
-------------------------------
Name:
Title:
Exhibit A - Page 1
