EXECUTION COPY
Exhibit 10.37
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT, dated February 28, 2000 (the "Amendment") is by and
between TeleCorp PCS, Inc., a Delaware corporation (the "Company") and Xxxxx
Xxxxxx ("Executive").
WHEREAS, the Company and Executive executed and delivered an Employment
Agreement dated as of June 17, 1998 (the "Agreement"); and
WHEREAS, on February 28, 2000, the Company, Tritel, Inc. ("Tritel") and
AT&T Wireless PCS, LLC ("AT&T") entered into that certain Agreement and Plan of
Reorganization and Contribution (the "Merger Agreement") providing for the
merger of First Merger Sub into the Company and the merger of Second Merger Sub
with and into Tritel, (the "Mergers"); and
WHEREAS, the Company and Executive desire to amend certain provisions
of the Agreement, which shall be effective on the Effective Date under the
Merger Agreement, as set forth herein.
NOW THEREFORE, intending to be legally bound and in consideration of
the mutual covenants and agreements contained herein, the Company and Executive
agree as follows:
1. Unless otherwise specified herein, all capitalized terms used herein
shall have the meanings ascribed to them in the Agreement.
2. As of the Effective Date, Section 7 of the Agreement is amended by
the following paragraph (c) to the end of such Section:
"(c) Notwithstanding anything contained herein to the contrary, if
Executive's employment with the Company is terminated by the Company
without cause or by the Executive for Good Reason, any shares of the
Company's stock granted to Executive pursuant to the Company's 1998
Restricted Stock Option Plan or any other stock or award plan
pursuant to which Executive shall have been granted stock awards or
options that have not previously vested shall immediately vest (and
shall not be subject to repurchase by the Company) on the date of
such termination. For the purposes of this provision, "Good Reason"
shall mean:
(i) if the Company has failed to make any payment pursuant to
Section 3 within thirty (30) business days following Executive's
written notice to the Company of such failure;
(ii) in the event of a material breach of this Agreement by the
Company (other than a payment default) which has not been cured
within thirty (30) days following notice thereof from the
Company;
(iii) in the event that (x) Executive is demoted or removed from
her offices or there is a material diminishment of Executive's
responsibilities, duties or status which diminishment is not
rescinded within 30 days after the date of receipt by the Board
of Directors of the Company from Executive of her written notice
referring to this provision and describing such diminishment, or
(ii) the Company relocates its principal offices without
Executive's consent to a location more than 50 miles from the
principal offices of the Company in Arlington, Virginia.
Notwithstanding the foregoing or anything to the contrary in the
Agreement, in no event shall the transactions contemplated by
the Agreement and Plan of Reorganization and Contribution by and
among the Company, Tritel and AT&T, dated as of February 28,
2000, be deemed to be a demotion or diminishment of Executive's
responsibilities, duties or status for purposes of Executive
terminating her employment for "Good Reason" under this Section
7 of this Agreement.
3. Except as amended by this Amendment, the Agreement shall continue in
full force and effect. The parties hereby acknowledge and agree that
any term or provision of any of the Exhibits to the Agreement that
refers to the Purchase Agreement shall be deemed to refer to the
Agreement as amended by this Amendment.
4. This Amendment 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.
5. THIS AMENDMENT SHALL BE CONSTRUED, INTERPRETED AND THE RIGHTS OF THE
PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF VIRGINIA, WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
TeleCorp PCS, Inc.
By:
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Name:
Title:
EXECUTIVE
Xxxxx Xxxxxx
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