EMPLOYMENT AGREEMENT
AGREEMENT between US Unwired, Inc. (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Executive") dated as of the __ day of November 2001.
1. TERM. The term of this Agreement shall begin on the date hereof and
end on the second anniversary of the date hereof; provided, however, that on
each annual anniversary of the date hereof (the "Renewal Date"), unless
previously terminated, such period shall be automatically extended so as to
terminate two years from such Renewal Date, unless at least 120 days prior to
the Renewal Date the Company notifies the Executive that such period shall not
be so extended. The term of this Agreement is hereafter referred to as the
"Employment Period."
2. CHANGE OF CONTROL.
"Change of Control" means
1. The acquisition by any individual, entity or group (a "Person")
within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "34 Act") of beneficial ownership
(within the meaning of Rule 13d-3 under the 34 Act) of 40% or more of
either (i) the Company's then outstanding common stock ("Outstanding
Stock") or (ii) the combined voting power of its then outstanding voting
securities entitled to vote generally in the election of directors
("Outstanding Voting Securities") other than any acquisition (i) by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any entity controlled by it, or (ii) by any entity pursuant
to a transaction which complies with Section 2(c)(i), (ii) or (iii), or
(iii) any acquisition by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., members of his
immediate family, or trusts for the benefit of him or his family
members; or
2. Individuals who as of the date hereof constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a
majority thereof; provided, however, that any individual becoming a
director subsequent to the date hereof whose election or nomination was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as a member of the
Incumbent Board unless his or her initial assumption of office occurs as
a result of an actual or threatened contest with respect to the election
or removal of directors or other actual or threatened solicitation of
proxies by or on behalf of a Person other than the Board; or
3. Consummation of a reorganization, merger or consolidation, share
exchange or sale or other disposition of all or substantially all of the
Company's assets (a "Combination") unless immediately thereafter (i) all
or substantially all of
the beneficial owners of the Outstanding Stock and Outstanding Voting
Securities immediately prior to such Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the entity resulting from
such Combination (including, without limitation, an entity which as a
result of such transaction owns the Company or all or substantially all
of its assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership immediately prior
to such Combination of the Outstanding Stock and Outstanding Voting
Securities, as the case may be, (ii) no Person (excluding any entity
resulting from such Combination or any employee benefit plan (or related
trust) of the Company or such resulting entity) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the resulting entity or the
combined voting power of the then outstanding voting securities of such
entity except to the extent that such ownership existed prior to the
Combination and (iii) at least a majority of the members of the board of
directors of the resulting entity were members of the Incumbent Board at
the time of the execution of the initial agreement or of the action of
the Board providing for such Combination; or
4. Approval by the shareholders of the Company's complete liquidation
or dissolution.
3. TERMS OF EMPLOYMENT.
(a) Position and Duties. During the Employment Period,
(i) (A) the Executive's position, authority, duties and
responsibilities ("Role") shall be commensurate with an executive
capacity and substantially comparable to the position, authority, duties
and responsibilities of a Chief Operating Officer for similarly situated
telecommunication institutions, and (B) his services shall be performed
at the location where he was employed immediately preceding the
Effective Date or any office or location within the State of Louisiana
and less than 35 miles from the location where he was employed
immediately preceding the Effective Date thereafter, provided that in
the case of any relocation, the Company shall pay all of Executive's
expenses reasonably related to such relocation, and any further
relocation required or necessary to comply with this Section 3; and
(ii) excluding any periods of vacation and sick leave to which he
is entitled, the Executive agrees to devote reasonable attention and
time during normal business hours to the Company's business and affairs,
and to use his reasonable best efforts to perform faithfully and
efficiently the responsibilities assigned to him hereunder. It shall not
be a violation of this Agreement for the Executive to (A) serve on
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the board of directors (or comparable governing body) or committees of
any business corporation or entity (other than one in direct competition
with the Company), civic or charitable organization, (B) deliver
lectures, fulfill speaking engagements or teach at educational
institutions, and (C) manage his legal affairs and personal investments,
so long as such personal activities do not significantly interfere with
the performance of his responsibilities. To the extent that any such
activities have been conducted by the Executive prior to the date
hereof, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent thereto shall
not thereafter be deemed to interfere with the performance of his
responsibilities.
(b) Compensation During the Employment Period.
(i) Base Salary. During the Employment Period the Executive shall
receive an annual base salary ("Annual Base Salary"), paid at a monthly
rate, at least equal to $155,000. During the Employment Period, the
Annual Base Salary shall be reviewed no more than 12 months after the
last salary increase awarded to the Executive and thereafter at least
annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive hereunder. Annual Base
Salary shall not be reduced after any such increase and the term "Annual
Base Salary" as used herein shall refer to Annual Base Salary as so
increased. As used in this Agreement, the term "affiliates" shall
include any entity controlled by, controlling or under common control
with the Company.
(ii) Annual Bonus. In addition to Annual Base Salary, the Executive
shall be eligible, for each fiscal year ending during the Employment
Period, an annual bonus (the "Annual Bonus") in cash which may range
from 0% to 50% of his Annual Base Salary as determined, in his sole
discretion, by the Chief Executive Officer ("CEO") of the Company, to be
paid no later than the end of the third month of the fiscal year next
following the fiscal year for which the Annual Bonus is awarded.
(iii) Incentive, Savings and Retirement Plans. The Executive shall be
entitled to participate in all incentive, savings and retirement plans,
practices, policies and programs ("Programs") applicable generally to
other peer executives of the Company and its affiliates, but in no event
shall such Programs provide the Executive with incentive opportunities
(measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is
applicable), savings opportunities and retirement benefit opportunities,
in each case, less favorable, in the aggregate, than the most favorable
of those provided by the Company and its affiliates for him under such
Programs as in effect on the date hereof, or if more favorable to him,
those provided generally at any time after the date hereof to other peer
executives of the Company and its affiliates.
(iv) Welfare Benefit Plans. The Executive and/or his family, as the
case may be, shall be eligible for participation in and shall receive
all
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benefits under welfare benefit Programs provided by the Company and
its affiliates (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and
travel accident insurance Programs) to the extent applicable generally
to other peer executives of the Company and its affiliates, but in no
event shall such Programs provide him with benefits which are less
favorable, in the aggregate, than the most favorable of such Programs in
effect for him on the date hereof or, if more favorable to him, those
provided generally at any time after the date hereof to other peer
executives of the Company and its affiliates.
(v) Expenses. The Executive shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by him in accordance
with the most favorable policies, practices and procedures ("Policies")
of the Company and its affiliates in effect for the Executive on the
date hereof or, if more favorable to him, as in effect generally at any
time thereafter with respect to other peer executives of the Company and
its affiliates.
(vi) Fringe Benefits. The Executive shall be entitled to fringe
benefits in accordance with the most favorable Policies of the Company
and its affiliates in effect for the Executive on the date hereof or, if
more favorable to him, as in effect generally at any time thereafter
with respect to other peer executives of the Company and its affiliates.
(vii) Office and Support Staff. The Executive shall be entitled to an
office or offices of a size and with furnishings and other appointments,
and to personal secretarial and other assistance, at least substantially
comparable to the most favorable of the foregoing provided to the
Executive by the Company and its affiliates on the date hereof or, if
more favorable to him, as provided generally at any time thereafter with
respect to other peer executives of the Company and its affiliates.
(viii) Vacation. The Executive shall be entitled to paid vacation in
accordance with the Policies of the Company and its affiliates as in
effect for him on the date hereof or, if more favorable to him, as in
effect generally at any time thereafter with respect to other peer
executives of the Company and its affiliates.
4. TERMINATION OF EMPLOYMENT.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon his death during the Employment Period. If the Company
determines in good faith that his Disability has occurred during the
Employment Period it may give him written notice in accordance with Section
12(b) of its intention to terminate his employment. In such event, his
employment shall terminate effective on the 30th day after receipt of such
notice (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, he shall not have returned to full-time performance of
his duties. "Disability" means the absence of the Executive from his duties
with the Company on a
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full-time basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or his legal representative.
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. "Cause" means
(i) Executive's continued failure to perform substantially his
duties (other than any such failure resulting from incapacity due to
physical or mental illness) as determined by the CEO and after expiration
of a cure period of 30 days following Executive's receipt of written notice
from the CEO describing such failure, or
(ii) Executive's willful engaging in illegal conduct or gross
misconduct. No act or failure to act, on the Executive's part shall be
considered "willful" unless it is done, or omitted to be done, by him in
bad faith or without reasonable belief that his action or omission was in
the Company's best interests. Any act, or failure to act, based upon
authority given pursuant the CEO or the advice of counsel for the Company
shall be conclusively presumed to be in good faith and in the Company's
best interests, or
(iii) Executive's violation of the provisions of Section 9 of this
Agreement.
The cessation of Executive's employment shall not be deemed to be for Cause
unless and until there shall have been delivered to him a copy of a letter,
finding that, in the CEO's good faith opinion, the Executive is guilty of
the conduct described in subparagraph (i), (ii) or (iii) above, and
specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. "Good Reason" means:
(i) assignments to him that in any material respect are inconsistent
with or result in a diminution of his Role as contemplated by Section 3(a),
excluding an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of
notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the provisions
of Section 3(b), other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
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(iii) the Company's requiring him to be based at any office or
location other than as provided in Section 3(a)(i)(B) or to travel on
Company business to a substantially greater extent than reasonably
required for the performance of his duties;
(iv) any purported termination by the Company of his employment
otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy Section
10(c); or
(vi) a Change of Control of the Company.
(d) Notice of Termination. Any termination for Cause or for Good Reason
shall be communicated by Notice of Termination to the other party hereto
given in accordance with Section 12(b). "Notice of Termination" means a
written notice which (i) indicates the specific termination provision
hereof relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the circumstances claimed to provide a basis for termination under
the provision so indicated and (iii) if the Date of Termination is other
than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such
notice). The failure by the notifying party to set forth in the Notice of
Termination any circumstance which contributes to a showing of Good Reason
or Cause shall not waive any right of such party from asserting such
circumstance in enforcing its or his rights hereunder.
(e) Date of Termination. "Date of Termination" means in the case of (i)
a termination for Cause or for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the case may
be, (ii) a termination by the Company other than for Cause or Disability,
the date on which the Company notifies the Executive of such termination
and (iii) a termination by reason of death or Disability, the date of
Executive's death or the Disability Effective Date, as the case may be.
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5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) Good Reason; Other Than for Cause, Death or Disability. If, during
the Employment Period, the Company shall terminate the Executive's
employment other than for Cause or Disability, or the Executive shall
terminate employment for Good Reason as defined in Sections 4(c)(i),
4(c)(ii), 4(c)(iii), 4(c)(iv), 4(c)(v) of this Agreement:
(i) the Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) his Annual Base Salary through the Date of
Termination to the extent not theretofore paid, (2) the product of (x) the
Annual Bonus paid or payable (if any), including any portion thereof which
has been earned but deferred (and annualized for any fiscal year consisting
of less than twelve full months or during which he was employed for less
than twelve full months), for any completed fiscal year during the
Employment Period, if any and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination,
and the denominator of which is 365 and (3) any compensation previously
deferred by him (together with any accrued interest or earnings thereon)
and any accrued vacation pay, in each case to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2), and (3) being
hereinafter referred to as the "Accrued Obligations"); and
B. the product of 2 times his Annual Base Salary.
(ii) the Executive shall immediately become fully 100% vested under
the Company's qualified defined benefit retirement plan and benefits
restoration plan (together, the "Retirement Plan"), and any excess or
supplemental retirement plan in which the Executive participates, as if his
employment continued for two years after the Date of Termination, assuming
for this purpose that his compensation in each of the two years is that
required by Section 4(b)(i) and (ii);
(iii) for two years after the Date of Termination, or such longer
period as may be provided by the terms of the appropriate Program, the
Company shall continue benefits to the Executive and/or his family at least
equal to those which would have been provided to them in accordance with
the Programs described in Section 4(b)(iv) if his employment had not been
terminated or, if more favorable to him, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliates and their families, provided, however, that if the Executive
becomes reemployed with another employer and is eligible to receive medical
or other welfare benefits under another employer provided plan, the medical
and other welfare benefits provided for herein shall be secondary to those
provided under such other plan
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during such applicable period of eligibility; and provided further that if
the application of this sentence would result in material adverse tax
consequences to the Company, the Company may, in lieu thereof, make cash
payments to the Executive sufficient to allow him to obtain equivalent
coverage for himself and his family (including to the extent necessary the
election of COBRA coverage and the maintenance of duplicate coverage during
any pre-existing condition exclusion), and any additional cash payments
necessary so that Executive will receive the full pre-tax benefit of the
cash payments in lieu of coverage. For purposes of determining eligibility
(but not the time of commencement of benefits) of the Executive for retiree
benefits pursuant to such Programs the Executive shall be considered to
have remained employed until two years after the Date of Termination and to
have retired on the last day of such period;
(iv) for a period ending on the earlier of one year from the Date of
Termination or Executive's obtaining other full-time permanent employment,
the Company shall, at its sole expense as incurred, provide the Executive
with outplacement services that are reasonable in scope and cost in
relation to his position; provided that this subparagraph shall not apply
if Executive's termination was solely for "Good Reason" under the last
sentence of Section 4(c);
(v) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which he is eligible to receive under
any Program or contract or agreement of the Company and its affiliates
(such other amounts and benefits shall be hereinafter referred to as the
"Other Benefits"); and
(vi) stock options theretofore granted to Executive shall become
fully exercisable and may be exercised during a period equal to one year
from the Date of Termination.
If, during the Employment Period the Executive shall terminate
employment for Good Reason as defined in Section 4(c)(vi) then the
Executive shall receive, in addition to the benefits set forth in Sections
5(a)(i)-5(a)(vi) hereof, a lump sum in cash within 30 days after the Date
of Termination equal to the product of (x) 2 and (y) the product of (I)
Annual Base Salary and (II) fifty percent (50%).
(b) Termination for Death or Disability. If during the Employment
Period, the Executive's employment is terminated by reason of his death or
Disability, this Agreement shall terminate without further obligations, other
than for payment of Accrued Obligations, the timely payment or provision of
Other Benefits and the provisions hereinbelow for the exercise of stock options.
Accrued Obligations shall be paid in a lump sum in cash within 30 days of the
Date of Termination. With respect to the provision of Other Benefits, the term
"Other Benefits" as used in this Section 6(b) shall include, without limitation,
benefits at least equal to the most favorable benefits provided by the Company
and affiliates to peer executives of the Company and such
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affiliates or their estates, beneficiaries or families, as the case may be,
under such Programs relating to death benefits, if any, as in effect with
respect to other peer executives at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable, as in effect on
the date of his death with respect to other peer executives of the Company and
its affiliates and their beneficiaries. With respect to options that were
otherwise exercisable on the date of death or Disability, Executive or his
representative shall be entitled to exercise such options for the greater of (A)
one year from the Executive's death or Disability or (B) the period permitted in
the applicable stock option agreement.
(c) Cause; Other than for Good Reason. If the Executive's employment is
terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (x) his Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by him, and
(z) Other Benefits, in each case to the extent theretofore unpaid. If the
Executive voluntarily terminates employment during the Employment Period other
than for Good Reason, this Agreement shall terminate without further obligations
to the Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be paid
to the Executive in a lump sum in cash within 30 days of the Date of
Termination. With respect to stock options exercisable on the date employment
terminates, Executive shall be entitled to exercise such options at any time
during the greater of (A) 20 days from the date employment terminated, or (B)
the period permitted under the applicable stock option agreement.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing herein shall prevent or limit the
Executive's continuing or future participation in any Program provided by the
Company or any of its affiliates and for which he may qualify, nor, subject to
Section 11(f), shall anything herein limit or otherwise affect such rights as he
may have under any contract or agreement with the Company or any of its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any Program of or any contract or agreement
with the Company or any of its affiliates at or subsequent to the Date of
Termination shall be payable in accordance with such Program or contract or
agreement except as explicitly modified by this Agreement.
7. FULL SETTLEMENT. The Company's obligation to make the payments provided
for herein and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to him under any of the
provisions hereof and such amounts shall not be reduced whether or not he
obtains other employment. The Company agrees to pay as incurred, to the full
extent permitted by law, all legal fees and
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expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision hereof or
any guarantee of performance thereof (including as a result of any contest by
the Executive about the amount of any payment pursuant to this Agreement), plus
in each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"); provided that if in connection with any dispute in which
it is finally determined by a court that the position of Executive is entirely
frivolous, Executive shall be required to reimburse the Company for Executive's
legal fees and expenses so paid by the Company.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything herein to the contrary notwithstanding and except as set
forth below, if it is determined that any payment or distribution by the Company
to or for Executive's benefit (whether paid or payable or distributed or
distributable pursuant to the terms hereof or otherwise, but determined without
regard to any additional payments required under this Section 8) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Executive with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by him of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment, equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 8(c), all determinations
required to be made under this Section 8, including whether and when a Gross-Up
Payment is required, the amount thereof and the assumptions to be used in
arriving at such determination, shall be made by Ernst and Young or such other
certified public accounting firm as may be designated by the Executive (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and the Executive within 15 business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier time as is
requested by the Company. If the Accounting Firm is serving as accountant or
auditor for the Person effecting the Change of Control, the Executive shall
appoint another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall
be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to
this Section 8, shall be paid by the Company to the Executive within five days
of the receipt
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of the Accounting Firm's determination. Any determination by the Accounting Firm
shall be binding upon the parties. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments that
have not been made should have been made ("Underpayment"). If the Company
exhausts its remedies pursuant to Section 8(c) and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment and any such Underpayment shall be
promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service ("IRS") that, if successful, would require a Gross-
Up Payment. Such notification shall be given as soon as practicable but no later
than ten business days after the Executive is informed in writing of such claim
and shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid. The Executive shall not pay such claim prior
to the expiration of the 30-day period following the date on which he gives such
notice (or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Executive shall, with respect to such claim:
(i) give the Company any information reasonably requested relating
to it,
(ii) take such action in connection with contesting it as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to it by an
attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively
to contest it, and
(iv) permit the Company to participate in any proceedings relating
to it;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 8(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
IRS in respect of such claim and may, at its sole option, either direct the
Executive to pay the tax
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claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and
the Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided, however, that if the
Company directs the Executive to pay such claim and ▇▇▇ for a refund, the
Company shall advance the amount of such payment to him, on an interest-free
basis and shall indemnify and hold him harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Executive shall be entitled to settle or
contest, as the case may be, any other issue raised by the IRS or any other
taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(c), he becomes entitled to receive any refund with
respect to such claim, he shall (subject to the Company's complying with the
requirements of Section 8(c)) promptly pay to the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), a determination is made that
he is not entitled to any refund with respect to such claim and the Company does
not notify him in writing of its intent to contest such denial of refund prior
to the expiration of 30 days after such determination, then such advance shall
be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid.
9. OTHER OBLIGATIONS OF EXECUTIVE.
(a) The Executive shall hold in a fiduciary capacity for the Company's
benefit all secret or confidential information, knowledge or data relating to
the Company or any of its affiliates, and their respective businesses, which
shall have been obtained by him during his employment and which shall not be or
become public knowledge (other than by acts by the Executive or his
representatives in violation of this Agreement). After termination of his
employment with the Company, he shall not, without the Company's prior written
consent or as may otherwise be required by law or legal process, communicate or
divulge any such information, knowledge or data to anyone other than the Company
and those designated by it. In no event shall an asserted violation of the
provisions of this Section 9 constitute a basis for deferring or withholding any
amounts otherwise payable to the Executive hereunder.
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(b) If the employment of Executive is terminated during the Employment
Period, during the two-year period following the Date of Termination, Executive
agrees that he will not (i) act as a management official of any Competitive
Business other than a "Permitted Entity", or (ii) solicit to provide wireless
mobile communications service to any person other than on behalf of a Permitted
Entity in the areas set forth on Attachment A provided that this Section 9(b)
shall not be applicable if the Company has not at all times during such period
complied with all of its obligations under this Agreement. The term "management
official" means an officer, director, consultant, general partner, manager or
controlling shareholder, the term "Competitive Business" means the provision of
wireless mobile communications service, and the term "Permitted Entity" means an
entity that is licensed, directly or indirectly, to provide mobile wireless
communication service in an area(s) in which the population in all of the
Permitted Entity's service area is equal to or less than 15% of the total
population in all of the area(s) in which the Company is operating.
10. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the
Company's prior written consent shall not be assignable by him otherwise than by
will or the laws of descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
its business and/or assets to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place. As used herein,
"Company" means the Company as hereinbefore defined and any successor to its
business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
11. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Louisiana, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
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(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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If to the Company: US Unwired Inc.
Attn: General Counsel/Legal Dept.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. 70629
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision hereof shall not
affect the validity or enforceability of any other provision.
(d) The Company may withhold from any amounts payable hereunder such
taxes as shall be required to be withheld pursuant to any applicable law or
regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or to assert any right he or it may have
hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 4(c) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is "at will" and
the Executive's employment and/or this Agreement may be terminated by either the
Executive or the Company at any time, in which case the Executive shall have
only the rights specified in the Agreement. From and after the Effective Date,
this Agreement shall supersede any other agreement between the parties with
respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement as of the day and year first above written.
U.S. UNWIRED, INC.
By:
Its: President/Chief Executive Officer
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