SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release ("Agreement") is entered
into by and between AirGate PCS, Inc. ("Company") and Xxxxxxx X. Xxxxxxx
("Executive").
WHEREAS, Executive was employed by Company as Vice President and Chief
Financial Officer; and
WHEREAS, Executive has resigned his employment with Company; and
WHEREAS, Company and Executive desire in this Agreement to resolve all
issues between them including, without limitation, issues relating to or arising
from (i) the formation of the employment relationship and/or any contracts of
employment between Company and Executive, and (ii) termination of the employment
relationship between Executive and Company;
NOW THEREFORE, in consideration of the foregoing and of the covenants
and agreements set forth herein, the parties agree as follows:
1. TERMINATION OF EMPLOYMENT AND EMPLOYMENT AGREEMENT.
Executive acknowledges that his employment and all relationships with
Company and its subsidiaries and affiliates terminated on March 19, 2004 (the
"Separation Date"). Executive agrees not to seek reinstatement or reemployment
with Company at any time hereafter.
2. CONSIDERATION FROM COMPANY.
Upon this Agreement becoming irrevocable by Executive, and in
consideration of Executive's promises and covenants herein, Company agrees as
follows:
(a) Company shall pay to Executive the total sum of four hundred and
twelve thousand five hundred dollars and zero cents ($412,500.00) representing
150 percent of Executive's current annual base salary, to be paid in biweekly
amounts of ten thousand five hundred seventy six dollars and ninety three cents
($10,576.93), less all applicable local, state and federal taxes and
withholdings, commencing on the first regular pay date of the Company after the
Separation Date and continuing for twelve (12) months, and at the end of such
twelve (12) month period, the remainder shall be payable in a lump sum payment,
less all applicable local, state and federal taxes and withholdings;
(b) Company shall reimburse Executive for all expenses incurred by
Executive on behalf of Company prior to the date of this Agreement (such
expenses to reimbursed in accordance with Company's expense reimbursement
policies in effect as of the date immediately prior to this Agreement);
(c) Company shall reimburse Executive for reasonable out-placement
services for a period of up to twelve (12) months (not to exceed $15,000);
(d) Company shall reimburse Executive for his legal expenses incurred
in connection with the review and negotiation of this Agreement (not to exceed
$7,500);
(e) Company shall cause (i) an additional twenty five percent (25%) of
the restricted stock awarded by Company to Executive on 10/24/02 to transfer
immediately, and (ii) an additional twenty five percent (25%) of the
non-qualified stock options granted by Company to Executive on 10/24/02 to
accelerate and vest immediately; provided, further, that Executive shall have
six (6) months following the Separation Date to exercise all such stock options
and previously vested stock options (without regard to any contrary provision of
the Company's 2002 Long-Term Incentive Plan);
(f) Company shall pay Executive any accrued pay in lieu of unused
vacation; and
(g) Company shall continue to provide, for a period of twelve (12)
months after Executive's Separation Date, or such longer period as may be
provided by the terms of the appropriate plan, program, practice or policy,
benefits to Executive and/or Executive's eligible dependants substantially
equivalent to those which would have been provided to them if Executive's
employment had not been terminated; provided, however, that if Executive becomes
employed with a third party employer and is eligible to receive comparable
medical or other welfare benefits under a plan provided by such third party
employer, Company's obligation to provide medical and other welfare benefits
described herein shall cease, except as otherwise provided by law.
Executive agrees that he is not entitled to receive, and will not claim, any
additional amounts for wages, salary, back pay, severance pay, deferred
compensation, accrued vacation, bonuses or benefits, other than what is
expressly set forth herein. Executive further acknowledges and agrees that the
consideration from Company described herein constitutes consideration in excess
of that which he would normally receive upon termination of the employment
relationship and that such additional consideration is given in exchange for
Executive signing this Agreement. Executive acknowledges and agrees that except
as set forth above, all restricted stock and/or options granted to Executive by
Company will terminate effective as of the Separation Date.
3. RELEASE AND COVENANT NOT TO XXX.
(a) In consideration of Company's promises and covenants herein, the
receipt and sufficiency of which are hereby acknowledged, Executive, on behalf
of himself and his heirs, agents and successors in interest, hereby
UNCONDITIONALLY RELEASES AND DISCHARGES Company, its successors, subsidiaries,
parent companies and other affiliate companies and all of their shareholders,
owners, lenders, advisors, assigns, agents, legal representatives, attorneys,
employees, officers, trustees and directors (collectively the "Company
Releasees") from all claims, sums of money due, suits, debts, charges,
liabilities, demands and causes of action, whether known or unknown, fixed or
contingent, that he may have or claim to have against Company or any of the
other Company Releasees for any reason, from the beginning of time up to the
date of execution of this Agreement, and hereby AGREES NOT TO FILE A LAWSUIT or
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other legal claim or charge with respect thereto to assert any claim with
respect thereto against any of the Company Releasees. This Release and Covenant
Not To Xxx includes, but is not limited to, claims for wrongful discharge,
defamation, claims for personal injury of any kind, claims for breach of
contract, shareholder derivative claims, other claims relating to stock purchase
or ownership, claims for deprivation of employment benefits, claims for
harassment and claims arising under federal, state or local laws prohibiting
employment discrimination and claims growing out of any legal restrictions on
Company's rights to terminate its employees or to take any other employment
action, whether statutory, contractual or arising under common law or case law.
Executive specifically acknowledges and agrees that he is releasing, in addition
to all other claims, any and all rights under federal and state employment laws
including without limitation the Age Discrimination in Employment Act of 1967
("ADEA"), as amended, 29 U.S.C. ss. 621, et seq., the Civil Rights Act of 1964
("Title VII"), as amended (including amendments made through the Civil Rights
Act of 1991), 42 U.S.C. ss. 2000e, et seq., 42 U.S.C. ss. 1981, as amended, the
Americans With Disabilities Act ("ADA"), as amended, 42 U.S.C. ss. 12101, et
seq., the Rehabilitation Act of 1973, as amended, 29 U.S.C. ss. 701, et seq.,
the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29
U.S.C. ss. 301, et seq., the Worker Adjustment and Retraining Notification Act,
29 U.S.C. ss. 2101, et seq., the Family and Medical Leave Act of 1993 ("FMLA"),
as amended, 29 U.S.C. ss. 2601 et seq., the Fair Labor Standards Act ("FLSA"),
as amended, 29 U.S.C. ss. 201 et seq. the Employee Polygraph Protection Act of
1988, 29 U.S.C. ss. 2001, et seq., all Georgia Code provisions, all laws of
other states and the state and federal workers' compensation laws; provided,
however, that nothing contained in this Release shall in any way diminish or
impair (i) any rights of Executive to the payments and benefits conferred in
this Agreement, (ii) any rights to indemnification that may exist from time to
time under any Indemnification Agreement between Executive and Company, or
Company's certificate of incorporation or bylaws, or Delaware law, or (iii)
Executive's ability to raise an affirmative defense in connection with any
lawsuit or other legal claim or charge instituted or asserted by Company against
Executive (collectively, the "Excluded Claims").
(b) Without limiting the generality of the foregoing, Executive hereby
acknowledges and covenants that in consideration for the sums being paid to him
he has knowingly waived any right or opportunity to assert any claim that is in
any way connected with any employment relationship or the termination of any
employment relationship which existed between Company and Executive. Executive
further understands and agrees that, except for the Excluded Claims, he has
knowingly relinquished, waived and forever released any and all remedies arising
out of the aforesaid employment relationship or the termination thereof,
including, without limitation, claims for backpay, front pay, liquidated
damages, compensatory damages, general damages, special damages, punitive
damages, exemplary damages, costs, expenses and attorneys' fees.
(c) Company represents and warrants that Company has no present plan or
intention to commence an action or legal proceeding against Executive for any
claims, sums of money due, suits, debts, charges, liabilities, demands or causes
of action, fixed or contingent, that it or any of its subsidiaries, parent
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companies and other affiliate companies has or (based upon presently existing
facts known to Company) is reasonably likely to have against Executive. For
purposes of the immediately preceding sentence and without limiting the
generality thereof, the Company will be deemed to possess knowledge of facts
known by the members of its Board of Directors and/or its Chairman of the Board,
President, and/or Vice President of Human Resources.
4. Executive Cooperation.
(a) Executive agrees, in consideration of the above-described payments
and promises that, after the execution of this Agreement, he will cooperate with
and assist Company by providing information relevant to matters as to which
Executive gained knowledge while employed by Company and/or its predecessors.
Executive further agrees that, upon reasonable notice from Company, he will meet
with Company's attorneys and other representatives regarding any litigation or
administrative proceeding arising out of or relating to matters about which
Executive has knowledge or in which Executive may be identified or called as a
witness and that he will appear at hearings, depositions, trials and other
proceedings relating to such matters. Company shall reimburse Executive for all
reasonable and necessary out-of-pocket expenses necessitated by his cooperation
hereunder.
(b) Executive agrees that he will promptly notify Company of any formal
or informal inquiry or request for information directed to Executive by any
third party that in any way relates to Executive's employment by Company or any
aspect of Company's business operation.
(c) Executive acknowledges and agrees that any and all complaints or
concerns about Company's accounting, internal accounting controls or auditing
matters or other financial or strategic matters of which he is aware have been
disclosed to the General Counsel or the Vice President of Human Resources as of
the execution date of this Agreement. Executive is neither aware of, nor
suspects, any violation of any law, regulation, statute, or ordinance of any
kind resulting from his own conduct as an employee of Company or from the
conduct of other employees or operations of Company. Executive further
represents and affirms that he has reported to the General Counsel or the Vice
President of Human Resources, any and all actual complaints communicated to him
by anyone regarding any alleged unlawful actions or omissions under Company's
policies or law, regulation, statute or ordinance.
5. Company Property.
Except that Executive may retain the laptop computer and mobile
telephones furnished to him by Company, Executive agrees that he will not retain
or destroy, and will immediately return to Company, any and all property of
Company in his possession or subject to his control, including, but not limited
to, keys, credit and identification cards, personal items or equipment provided
for his use, financial records and information, all other files and documents
relating to Company and its business, together with all written or recorded
materials, documents, computer disks, plans, records or notes or other papers
belonging to Company in whatever form same may exist. Executive further agrees
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not to make, distribute or retain copies of any such information or property. By
executing this Agreement, Executive warrants and agrees that he already has
returned all such information and material to Company. Executive acknowledges
and agrees that he will be responsible for payment of all charges accruing after
the Separation Date with respect to mobile telephones retained by him and that
Company shall delete from any laptop computer to be retained by Executive all
information relating to Company or its business before Executive takes
possession of such laptop computer.
6. Nondisparagement.
In consideration of the above-described payments and promises, and as a
significant inducement to Company to make the payments and promises contained
herein, Executive agrees and covenants not to make or publish, verbally or in
writing, any derogatory or disparaging statements regarding Company Releasees,
or other statements which statements are or may reasonably be expected to be
injurious or inimical to the best interests of any such Company Releasee. In
consideration of Executive's promises and covenants herein, Company agrees that
it will make no statement in the form of a press release regarding Executive's
termination of employment with Company other than that as set forth in Exhibit A
attached hereto and Company shall provide Executive a written letter of
reference signed by Company's Chief Executive Officer substantially in the form
of Exhibit B attached heretoCompany further agrees and covenants that none of
the current members of its Board of Directors, it Chairman of the Board, its
Chief Executive Officer, or its Vice President of Human Resources will make or
publish, verbally or in writing, any derogatory or disparaging statements
regarding Executive, or other statements which statements are or may reasonably
be expected to be injurious or inimical to the best interests of Executive.
7. Restrictions on Conduct of Executive.
(a) General. Executive and Company understand and agree that the
purpose of the provisions of this Section 7 is to protect legitimate business
interests of Company, as more fully described below, and is not intended to
impair or infringe upon Executive's right to work, earn a living, or acquire and
possess property from the fruits of his labor. Executive hereby acknowledges
that Executive has received good and valuable consideration for the
post-employment restrictions set forth in this Section 7 including, but not
limited to, the compensation and benefits provided for herein. Executive hereby
further acknowledges that the post-employment restrictions set forth in this
Section 7 are reasonable and that they do not, and will not, unduly impair his
ability to earn a living after the termination of this Agreement. In addition,
the parties acknowledge: (A) that Executive has had substantial contacts with
customers, suppliers, advertisers and vendors of Company; (B) that Executive has
been placed in a position of trust and responsibility and has had access to a
substantial amount of Confidential Information and Trade Secrets as defined
herein; and (C) that Executive has been the repository of a substantial portion
of the goodwill of Company and would have an unfair advantage in competing with
Company. Therefore, Executive shall be subject to the restrictions set forth in
this Section 7.
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(b) Definitions. The following capitalized terms used in this Section 7
shall have the meanings assigned to them below, which definitions shall apply to
both the singular and the plural forms of such terms:
"Competitive Position" means any employment with a Competitor
in which Executive will use or is likely to use any Confidential Information or
Trade Secrets, or in which Executive has duties for such Competitor that involve
Competitive Services and that are the same or substantially similar to those
services actually performed by Executive for Company.
"Competitive Services" means the business of selling wireless
telecommunications products and services.
"Competitor" means any Person engaged, wholly or in part, in
providing Competitive Services within the Restricted Territory that constitute
at least three percent (3%) (by dollar volume) of the Competitive Services in
the Restricted Territory, including, without limitation, Sprint Corporation or
its subsidiaries or affiliates ("Sprint").
"Confidential Information" means all information regarding
Company, its activities, business or clients that is the subject of reasonable
efforts by Company to maintain its confidentiality and that is not generally
disclosed by practice or authority to persons not employed by Company, but that
does not rise to the level of a Trade Secret. "Confidential Information" shall
include, but is not limited to, financial plans and data concerning Company;
management planning information; business plans; operational methods; market
studies; marketing plans or strategies; product development techniques or plans;
customer lists; details of customer contracts; current and anticipated customer
requirements; past, current and planned research and development; business
acquisition plans; and new personnel acquisition plans. "Confidential
Information" shall not include information that has become generally available
to the public by the act of one who has the right to disclose such information
without violating any right or privilege of Company or information relating to
the transmission of data via powerlines that is not unique to any plans known to
Executive that Company may have with respect thereto. This definition shall not
limit any definition of "confidential information" or any equivalent term under
state or federal law.
"Person" means any individual or any corporation, partnership,
joint venture, limited liability company, association or other entity or
enterprise.
"Principal or Representative" means a principal, owner,
partner, shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom Company has
sold its products or services or solicited to sell its products or services,
other than through general advertising targeted at consumers, during the twelve
(12) months prior to the Separation Date.
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"Protected Employees" means employees of Company who were
employed by Company at any time within six (6) months prior to the Separation
Date, other than those who were discharged by Company without cause.
"Restricted Territory" means the Service Area (as defined in
the Sprint PCS Management Agreement between Company and Sprint PCS, dated as of
July 22, 1998, as amended) as such Service Area is in effect on the Effective
Date. A copy of the description of such Service Area is attached to this
Agreement as Exhibit A.
"Restrictive Covenants" means the restrictive covenants
contained in Section 7(c) hereof.
"Trade Secret" means all information, without regard to form,
including, but not limited to, technical or nontechnical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, distribution lists or a
list of actual or potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which information: (A) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy. Without
limiting the foregoing, Trade Secret means any item of confidential information
that constitutes a "trade secret(s)" under the common law or statutory law of
the State of Georgia.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential Information and
Trade Secrets. Executive understands and agrees that the Confidential
Information and Trade Secrets constitute valuable assets of Company and its
affiliated entities, and may not be converted to Executive's own use.
Accordingly, Executive hereby agrees that, for a period of one (1) year
following the Separation Date, Executive shall not, directly or indirectly,
reveal, divulge, or disclose to any Person not expressly authorized by Company
any Confidential Information, and Executive shall not, directly or indirectly,
use or make use of any Confidential Information in connection with any business
activity other than that of Company. For so long as same remains a Trade Secret,
Executive shall not directly or indirectly transmit or disclose any Trade Secret
of Company to any Person, and shall not make use of any such Trade Secret,
directly or indirectly, for himself or for others, without the prior written
consent of Company. The parties acknowledge and agree that this Agreement is not
intended to, and does not, alter either Company's rights or Executive's
obligations under any state or federal statutory or common law regarding trade
secrets and unfair trade practices. Anything herein to the contrary
notwithstanding, Executive shall not be restricted from disclosing or using
Confidential Information or any Trade Secret that is required to be disclosed by
law, court order or other legal process; provided, however, that in the event
disclosure is required by law, Executive shall, to the extent legally
permissible, provide Company with prompt notice of such requirement so that
Company may seek an appropriate protective order prior to any such required
disclosure by Executive.
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(ii) Nonsolicitation of Protected Employees. Executive understands and
agrees that the relationship between Company and each of its Protected Employees
constitutes a valuable asset of Company and may not be converted to Executive's
own use. Accordingly, Executive hereby agrees that, for a period of one (1) year
following the Separation Date, Executive shall not directly or indirectly on
Executive's own behalf or as a Principal or Representative of any Person or
otherwise solicit or induce any Protected Employee to terminate his employment
relationship with Company or to enter into employment with any other Person.
(iii) Restriction on Relationships with Protected Customers. Executive
understands and agrees that the relationship between Company and each of its
Protected Customers constitutes a valuable asset of Company and may not be
converted to Executive's own use. Accordingly, Executive hereby agrees that, for
a period of one (1) year following the Separation Date, Executive shall not,
without the prior written consent of Company, directly or indirectly, on
Executive's own behalf or as a Principal or Representative of any Person,
solicit, divert, take away or attempt to solicit, divert or take away a
Protected Customer for the purpose of providing or selling Competitive Services
in the Restricted Territory; provided, however, that the prohibition of this
covenant shall apply only to Protected Customers with whom Executive (i) had
direct contact during his employment with Company, or (ii) had been a party to,
or otherwise been privy to, marketing or sales strategies with regard to such
Protected Customer; and, provided further, that the prohibition of this covenant
shall not apply to the conduct of general advertising activities.
(iv) Restriction on Soliciting Sprint Relationship. Executive
understands and agrees that the relationship between Company and Sprint
Corporation and its subsidiaries and affiliates constitutes a valuable asset of
Company and may not be converted to Executive's own use. Accordingly, Executive
hereby agrees that, for a period of one (1) year following the Separation Date,
Executive shall not, without the prior written consent of Company, directly or
indirectly, on Executive's own behalf or as a Principal or Representative of any
Person, solicit a relationship with Sprint for the provision of Competitive
Services within the Restricted Territory on behalf of any Person other than
Company.
(v) Noncompetition with Company. In consideration of the compensation
and benefits being paid and to be paid by Company to Executive hereunder,
Executive hereby agrees that, for a period of six (6) months following the
Separation Date, Executive will not, without prior written consent of Company,
directly or indirectly seek or obtain a Competitive Position in the Restricted
Territory with a Competitor; provided, however, that the provisions of this
Agreement shall not be deemed to prohibit the ownership by Executive of not more
than two percent (2%) of any class of securities of any corporation having a
class of securities registered pursuant to the Exchange Act. Executive
acknowledges that in the performance of his duties for Company he was charged
with operating on Company's behalf throughout the Restricted Territory and he
hereby acknowledges, therefore, that the Restricted Territory is reasonable.
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(d) Enforcement of Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the event Executive breaches,
or threatens to commit a breach of, any of the provisions of the Restrictive
Covenants, Company shall have the right and remedy to enjoin, preliminarily and
permanently, Executive from violating or threatening to violate the Restrictive
Covenants and to have the Restrictive Covenants specifically enforced by any
court of competent jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable injury to Company
and that money damages would not provide an adequate remedy to Company. Such
right and remedy shall be independent of any others and severally enforceable,
and shall be in addition to, and not in lieu of, any other rights and remedies
available to Company at law or in equity.
(ii) Severability of Covenants. Executive acknowledges and agrees that
the Restrictive Covenants are reasonable and valid in time and scope and in all
other respects. Each of the Restrictive Covenants shall be considered and
construed as a separate and independent Restrictive Covenant. Should any part or
provision of any Restrictive Covenant be held invalid, void or unenforceable in
any court of competent jurisdiction, such invalidity, voidness or
unenforceability shall not render invalid, void or unenforceable any other part
or provision of this Agreement. If any portion of the foregoing provisions is
found to be invalid or unenforceable by a court of competent jurisdiction
because its duration, the territory, the definition of activities or the
definition of information covered is considered to be invalid or unreasonable in
scope, the invalid or unreasonable term shall be redefined, or a new enforceable
term provided, such that the intent of Company and Executive in agreeing to the
provisions of this Agreement will not be impaired and the provision in question
shall be enforceable to the fullest extent of the applicable laws.
(iii) Reformation. The parties hereunder agree that it is their
intention that the Restrictive Covenants be enforced in accordance with their
terms to the maximum extent possible under applicable law. The parties further
agree that, in the event any court of competent jurisdiction shall find that any
provision hereof is not enforceable in accordance with its terms, the court
shall reform the Restrictive Covenants such that they shall be enforceable to
the maximum extent permissible at law.
(iv) Elective Right of Company. In the event that Executive challenges
the enforceability of the Restrictive Covenants (or asserts an affirmative
defense to an action seeking to enforce the Restrictive Covenants) based on an
argument that the Restrictive Covenants are (x) not enforceable as a matter of
law, (y) unreasonable in geographical scope or duration or (z) void as against
public policy, Company shall have the right (1) to cease making the payments
required under Section 2(a) above and, upon demand, to have Executive repay,
within 10 business days of any such demand, any such payments already made. Any
right afforded to, or exercised by, Company hereunder shall in no way affect the
enforceability of the Restrictive Covenants or any other right of Company
hereunder. Nothing in this Section 7(d)(iv) shall be construed to preclude a
challenge by Executive (or a defense against) the application of the Restrictive
Covenants as to a particular set of facts and circumstances (as opposed to the
arguments enumerated above).
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(e) Consideration for Restrictive Covenants. The obligations of
Executive with respect to the Restrictive Covenants are expressly conditioned
upon the performance by Company of its obligations set forth in Section 2.
8. NO ADMISSION OF LIABILITY.
Company and Executive agree that this Agreement is the result of a
compromise of claims, and should never for any purpose be considered an
admission of liability, wrongdoing or responsibility by Company or Executive,
and the parties each expressly deny any such liability, wrongdoing or
responsibility.
9. NO PRIOR ASSIGNMENTS.
Executive and Company each represents and warrants that such party has
not heretofore assigned or transferred or purported to assign or transfer to any
person or entity any claim or matter herein released, disclaimed, discharged or
terminated by such party. In the event of such assignment or transfer of any
claims or other matters herein released, disclaimed, discharged or terminated,
such party agrees to indemnify and hold harmless the other party from and
against any liability or loss, and for any cost or expense, including attorneys'
fees, or judgment or settlement arising out of or occasioned by any such
assignment or transfer.
10. CONFIDENTIALITY.
Executive promises not to disclose or discuss, with any person or
entity (other than his spouse, attorney or tax advisors, as applicable, who
shall be advised of this agreement regarding confidentiality and agree to abide
by it), either directly or indirectly, any information relating to the
consideration provided by or to be provided pursuant to this Agreement, except
as may be required by subpoena or legal process or to effectuate the terms of
this Agreement.
11. MISCELLANEOUS.
11.1 Severability. If any term, provision, covenant or condition of
this Agreement is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, in whole or in part, such determination will not affect
any other provision of this Agreement or the remaining portion of a partially
invalid provision, which shall remain in full force and effect and shall be in
no way affected, impaired or invalidated, and the provision in question shall be
modified, as appropriate, by a court of competent jurisdiction so as to be
rendered enforceable.
11.2 Entire Agreement. This Agreement constitutes the sole
understanding of the parties hereto with respect to the subject matter hereof.
Except as otherwise expressly provided herein, this Agreement supersedes all
prior agreements and understandings related to the subject matter hereof
Executive agrees that he has
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not relied on any representations, promises or agreements of any kind made to
him in connection with this Agreement except those expressly set forth in this
Agreement. No amendment of this Agreement shall be binding unless made in
writing and duly executed by all Parties to be bound thereby.
11.3 Construction. Each Party and his or its counsel have reviewed this
Agreement and have been provided the opportunity to revise this Agreement and,
accordingly, the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement. Instead, the language of all parts of this
Agreement shall be construed as a whole, and according to its fair meaning, and
not strictly for or against either Party.
11.4 Warranty of Capacity to Execute Agreement. The signatories to this
Agreement represent and warrant that each has the right and authority to execute
this Agreement in their individual or representative capacity, as applicable.
11.5 No Pending Charges. Company and Executive each represents that
such party does not have any pending complaints, actions, charges or claims of
any nature against the other party or any Releasee based on or related to any
events occurring prior to the date hereof.
11.6 Parties Bound by Agreement. The terms, conditions and obligations
of this Agreement shall inure to the benefit of and be binding upon Company and
its successors and assigns and Executive and his heirs and assigns.
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
11.8 Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction hereof.
11.9 Modification and Waiver. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled to
the benefits thereof. No waiver of any of the provisions of this Agreement shall
be deemed to or will constitute a waiver of any other provisions hereof.
11.10 Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Georgia. Unless otherwise
expressly provided herein, all references in this Agreement to Section(s) or
Exhibit(s) will refer to the Section(s) or Exhibit(s) of this Agreement.
12. Acknowledgment.
Executive and Company each expressly states that such party has
carefully read this Agreement and Executive agrees and acknowledges that
Executive is releasing the Company Releasees from any possible claim that
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Executive may have, including any claim relating to Executive's employment with
Company or the termination of such employment. Without limiting the generality
of the foregoing, Executive agrees that by executing this Agreement, he has
released and waived any and all claims he has or may have as of the date of this
Agreement for age discrimination under the Age Discrimination in Employment Act,
as amended, 29 U.S.C. ss. 621, et seq.
Executive further agrees that he has been advised to consult with an
attorney or an advisor of his own choosing prior to his execution of this
Agreement, and that, in fact, Executive has been represented by counsel in
connection with the negotiation of this Agreement. Executive agrees that he has
been given twenty-one (21) days in which to consider whether to sign this
Agreement and has either used that full 21-day period or voluntarily decided to
sign this Agreement before the end of that period. Executive also understands
that he may revoke this Agreement by delivering written notice of revocation to
Company at any time within seven (7) days after executing it. Subject to the
foregoing, this Agreement shall become effective and enforceable at twelve
o'clock (12:00) noon on the eighth (8th) day immediately following the date of
execution of this Agreement (the "Effective Date"). The Agreement may not be
revoked after the Effective Date.
IN WITNESS WHEREOF, the undersigned have set their hands on the dates
indicated.
AIRGATE PCS, INC. XXXXXXX X. XXXXXXX
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
Title: Xxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxx
President and CEO
Date: March 23, 2004 Date: March 23, 2004
-12-
Exhibit A
[GRAPHIC OMITTED]
Contact: Xxx Xxxxxxxxx
President and Chief Executive Officer
000-000-0000
AIRGATE PCS, INC. ANNOUNCES RESIGNATION OF CHIEF FINANCIAL OFFICER
ATLANTA (March 23, 2004) - AirGate PCS, Inc. (NASDAQ: PCSAD), a PCS Affiliate of
Sprint, announced today that Xxxxxxx X. Xxxxxxx, vice president and chief
financial officer, has resigned from the Company to pursue other interests.
Xxxxxx X. Xxxxxxxxx, president and chief executive officer of AirGate PCS,
stated, "Almost eighteen months ago, Will Xxxxxxx joined us to accomplish a
restructuring of the Company's debt and to help reposition AirGate PCS for
growth. The recapitalization is now complete, the Company has the best leverage
ratio among the Sprint affiliates, we have significantly more cash on our
balance sheet, and we have a top-notch finance and accounting staff located in
Atlanta. As a result of these factors, Will has elected to leave at this time to
pursue other interests. While I am personally saddened by his departure, I am
grateful to him for his many contributions and I wish him success in his future
endeavors. Will has agreed to be available for consultation beyond his
employment to help with the transition."
"I have completed the goals set forth for AirGate's restructuring," commented
Xxxxxxx. "I am pleased the Company is poised for growth with a greatly improved
capital structure and a strong finance team in place. While I will miss my
AirGate colleagues, I look forward to working on other potential
restructurings."
The Company also announced that it has retained a search firm to recruit a new
chief financial officer.
About AirGate PCS
AirGate PCS, Inc. is the PCS Affiliate of Sprint with the right to sell wireless
mobility communications network products and services under the Sprint brand in
territories within three states located in the Southeastern United States. The
territories include over 7.2 million residents in key markets such as
Charleston, Columbia, and Greenville-Spartanburg, South Carolina; Augusta and
Savannah, Georgia; and Asheville, Wilmington and the Outer Banks of North
Carolina.
-END-
Exhibit B
To Whom It May Concern:
Xxxxxxx X. Xxxxxxx served as the Chief Financial Officer of AirGate
PCS, Inc., a PCS affiliate of Sprint, from 2002 until his voluntary resignation
on March 19, 2004.
Will joined us to accomplish a restructuring of the Company's debt and
restructure AirGate PCS for growth. The recapitalization of the Company was
completed in early 2004 and, as of the date of Will's resignation, the Company
had the best leverage ratio among the Sprint affiliates and significantly more
cash on its balance sheet. Will left the Company with an improved capital
structure and a strong finance team in place. The Company is grateful for his
many contributions.
Sincerely,
Xxxxxx X. Xxxxxxxxx
President and CEO
