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Dear Mr. Haskell

Employment Agreement Amendment

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This Employment Agreement Amendment involves

SUNCOM WIRELESS HOLDINGS, INC.

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Title: Dear Mr. Haskell
Date: 9/19/2007

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exv10w2
 

Exhibit 10.2
[SunCom Letterhead]
September 16, 2007
Mr. Eric Haskell
1100 Cassatt Road
Berwyn, PA 19312
Dear Mr. Haskell:
     You previously entered into an employment agreement with SunCom Wireless Management Company, Inc. (the “Company”) dated May 26, 2006 to be effective as of December 20, 2005 (the “Original Employment Agreement”) and thereafter amended by a certain Letter Agreement (the “2006 Letter Agreement”) dated July 12, 2006 and a certain Letter Agreement (the “January 2007 Letter Agreement”) dated January 31, 2007. The Original Employment Agreement as amended by the 2006 Letter Agreement and the January 2007 Letter Agreement is referred to collectively herein as the “Existing Employment Agreement”. Except as otherwise defined herein, all capitalized terms used herein shall have the meaning set forth in the Existing Employment Agreement.
     Each of the Company and SunCom Wireless Holdings, Inc. (“SunCom”) pursuant to this letter agreement (this “Agreement”) hereby agrees to modify the terms of your Existing Employment Agreement as set forth below:
     1. Benefits Upon Termination. Section 1 of the January 2007 Letter Agreement is hereby deleted in its entirety and replaced by the following:
Notwithstanding Sections 6(b) and 6(c) of the Original Employment Agreement (or any other provision of the Existing Employment Agreement), in the event of a termination of Executive’s employment (i) by the Company Without Cause, (ii) by the Company by notice of non-renewal pursuant to Section 1 of the Original Employment Agreement, (iii) by Executive for Good Reason, (iv) by reason of Executive’s death or Disability, or (v) by Executive in accordance with Section 3 of this Agreement, then Executive (or his estate, as applicable) shall be entitled (in addition to any non-cash severance-related benefits, payments or compensation provided for in the Existing Employment Agreement) to:
          (a) a salary continuation benefit in the amount of Executive’s Base Salary on the date of such termination;
          (b) a bonus for the calendar year during which salary continuation is paid (without regard to the date during such year that such termination occurs) in the amount Executive’s full target Management Business Objective bonus for such year, which bonus shall be calculated (i) in accordance with Section 3(b) of the Original Employment Agreement and (ii) as if Executive had achieved one hundred percent

 


 

(100%) of his related bonus-based goals for the Management Business Objective bonus for such calendar year;
          (c) payment of the amount of any Management Business Objective bonus to which the Executive would otherwise be entitled for the calendar year during which the Executive’s termination occurs (prorated appropriately to reflect the months worked prior to such termination); and
          (d) immediate vesting of all unvested shares of SunCom owned by Executive as of the date of such termination (whether such shares are subject to the Plan or a restricted stock award letter agreement or comparable agreement).
     The benefits described in Sections 1(a), 1(b) and 1(c) above shall be payable in a single lump sum as soon as practicable, but in no event more than ten (10) business days, following the end of the Employment Period; provided that in the event that such benefits constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation of service, such benefits shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such 6-month period.
     In the event of a termination of Executive’s employment under circumstances other than those described in this Section 1 or in Section 3 of this Agreement, Executive shall be entitled to only those termination-related benefits, payments or compensation provided for in the Existing Employment Agreement.
     The parties acknowledge and agree that the Company has previously deposited the aggregate amount of Executive’s benefits described in Sections 1(a) and 1(b) into an irrevocable trust with a third party trustee pursuant to an irrevocable trust agreement.
     Notwithstanding anything to the contrary contained herein, payment to Executive of the benefits described in this Section 1 shall be contingent upon the Executive (or his executor, as applicable) executing and delivering to the Company a mutual general release of claims in the form attached hereto as Exhibit A (the “Release”).
  2. Sale Transaction Bonus. Section 2 of the January 2007 Letter Agreement is hereby deleted in its entirety and replaced by the following:
     If (a) SunCom has executed an agreement to engage in a Sale Transaction (as hereinafter defined) by December 31, 2007, (b) such Sale Transaction has been consummated by December 31, 2008, (c) the Executive remains actively employed (not on a leave of absence, other than an FMLA leave of absence) with the Company through the consummation of the Sale Transaction, (d) the Executive is otherwise in compliance with the terms of the Existing Employment Agreement as may be amended at any time in the future, including by the terms of this Agreement, (e) the Executive complies with, and uses commercially reasonable efforts to take such actions as are necessary to cause the Company and its Affiliates to comply with, the terms and conditions of agreements entered into by the Executive or the Company or its Affiliates effecting or otherwise relating to the Sale Transaction, and (f) the Executive takes such action and uses

 


 

commercially reasonable efforts to cause the Company or its Affiliates to implement or otherwise execute the business plan previously provided to the purchaser in connection with the Sale Transaction, the Executive will be eligible to receive a sale bonus in connection with such Sale Transaction in the following amounts (the "Sale Bonus") based on the Sale Proceeds (as hereinafter defined):
     
Sale Proceeds   Sale Bonus Amount
At least $2.2B
  $1,577,731
At least $2.3B
  $2,018,908
At least $2.4B
  $2,460,084
At least $2.6B
  $3,342,437
At least $2.8B
  $4,224,790
At least $3.0B
  $5,107,143
     If the Sale Proceeds are less than $2,200,000,000, then the Sales Bonus amount will be extrapolated in accordance with the foregoing calculations; provided that no amounts will be paid if the Sale Proceeds are less than $1,700,000,000; further provided that such calculation shall take into consideration the Sale Bonus amounts paid to other participating executives of the Company for Sale Proceeds less than $2,000,000,000 (other than the six executives added to the Sale Bonus arrangement following the preliminary review of the proposed participants by the Board at its meeting held on August 8, 2007); and further provided that in the event the Sale Proceeds are less than $2,000,000,000, the aggregate Sale Bonus pool will be based on two percent of the Sale Proceeds. In the event that the Sale Proceeds fall between the amounts reflected above, the Sale Bonus shall be calculated by interpolating on a straight line basis to the next highest Sale Bonus amount. In the event that the Sale Proceeds exceed $3,000,000,000, the Sale Bonus Amount shall be extrapolated in accordance with the foregoing calculations. Notwithstanding the foregoing, the Sale Bonus pool payable to all participating Company executives (other than the six executives added to the Sale Bonus arrangement following the preliminary review of the proposed participants by the Board at its meeting held on August 8, 2007) shall not exceed three percent of the Sale Proceeds.
     The Sale Bonus shall be subject to applicable federal, state and local tax withholding required by law. Notwithstanding anything to the contrary contained herein: (i) if prior to the consummation of the Sale Transaction, the Executive’s employment is terminated by the Company without Cause or by notice of non-renewal by the Company pursuant to Section 1 of the Original Employment Agreement, or the Executive dies, then the Executive (or his estate, as applicable) will be paid the Sale Bonus as provided in the following paragraph; and (ii) if the Executive’s employment is terminated by the Company for Cause prior to the consummation of the Sale Transaction, the Executive will be ineligible to receive any portion of the Sale Bonus.
     The benefit described in this Section 2 shall be payable in a single lump sum as soon as practicable, but not more than ten (10) business days following the consummation of the Sale Transaction (or receipt of Sale Proceeds which are not Contingent Sale Proceeds (as hereinafter defined) sufficient to trigger the Company’s obligation to pay a Sale Bonus); provided that any Sale Bonus amount the Executive (or his estate, as applicable) is entitled to receive pursuant to this Section 2, shall not be

 


 

payable to the Executive (or his estate, as applicable) until such time as SunCom’s stockholders have received payment with respect to their equity interests pursuant to the terms of the agreement to engage in the Sale Transaction. In the event that:
     (x) any portion of the Sale Proceeds is required by the terms of the Sale Transaction to be placed into escrow, retained or held back by the buyer, or the payment thereof is otherwise subject to contingencies based upon the occurrence of future events (“Contingent Sale Proceeds”), the Company will not pay the Executive the portion of the Sale Bonus attributable to the Contingent Sale Proceeds until such time as, and only to the extent that, the Contingent Sale Proceeds are released from escrow, no longer are retained or held back by the buyer, or otherwise no longer are subject to payment contingencies, as the case may be ( “Released Sale Proceeds”); and
     (y) the aggregate amount of Sale Proceeds in a Sale Transaction that do not constitute Contingent Sale Proceeds is insufficient to trigger the Company’s obligation to pay a Sale Bonus, then the Sale Bonus shall not be paid unless and until the Sale Proceeds which are not Contingent Sale Proceeds are sufficient to trigger the Company’s obligation to pay a Sale Bonus (e.g., because sufficient Contingent Sale Proceeds have been released from escrow, no longer are retained or held back by the buyer, or no longer are subject to payment contingencies).
          In the event that the benefits described in this Section 2 constitute “deferred compensation” payable to a “key employee” of a publicly-traded corporation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended, on account of separation from service, such benefit shall not be payable until six (6) months following Executive’s separation from service and shall not accrue interest during such 6-month period.
          Notwithstanding anything to the contrary contained herein, the Executive’s receipt of the benefits described in this Section 2 shall be contingent upon the Executive (or his executor, as applicable) executing and delivering to the Company the Release.
As used in this Agreement:
          (A) The term “Sale Transaction ” means the transaction or series of transactions currently contemplated by the Board of Directors of SunCom (the “Board”) as of the date of the execution of this Agreement whereby directly or indirectly (I) an acquisition, merger, consolidation, or other business combination pursuant to which the business or assets of SunCom are, directly or indirectly, combined with a third party not controlled (by ownership of a majority of the voting securities of such buyer or buyers) by SunCom’s current stockholders; (II) the acquisition, directly or indirectly, by a buyer or buyers (which term shall include a “group” of persons as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), of equity interests or options, or any combination thereof constituting a majority of the then outstanding stock of SunCom or possessing a majority of the then outstanding voting power of SunCom (except as may occur with current stockholders or debtholders as a result of a restructuring), other than a buyer or buyers controlled by the current SunCom stockholders by ownership of a majority of the voting securities of such buyer or buyers;

 


 

(III) any other purchase or acquisition, directly or indirectly, by a buyer or buyers other than a buyer or buyers controlled by the current SunCom stockholders by ownership of a majority of the voting securities of such buyer or buyers; or (IV) the formation of a joint venture or partnership with SunCom or direct investment in SunCom for the purpose of effecting a transfer of a significant interest in SunCom to a third party.
     (B) The term “Sale Proceeds” means (I) the total amount of cash and fair market value (on the date of payment) of all property paid or payable (including amounts paid in escrow) in connection with the Sale Transaction (or any related transaction), including amounts paid or payable in respect of convertible securities, preferred equity securities, warrants, stock appreciation rights, options or similar rights, whether or not vested, plus (II) in the event of a sale of the capital stock of SunCom and/or its Affiliates, the principal amount of all indebtedness for borrowed money or other liabilities of SunCom and/or its Affiliates outstanding as of the closing date of the Sale Transaction, or, in the case of a sale of assets, all indebtedness for borrowed money or other liabilities assumed by the buyer. Sale Proceeds shall also include the aggregate amount of all dividends or other distributions declared by SunCom and/or its Affiliates after the date hereof other than normal quarterly cash dividends, and, in the case of a sale of assets, the net fair market value of any current assets not sold by SunCom and/or its Affiliates, less the book value of the current liabilities not assumed by the applicable buyer. For purposes of calculating Sale Proceeds, the value of securities, whether debt or equity, that are freely tradeable in an established public market will be determined on the basis of the average closing price in such market for the 10 trading days prior to the closing of the Sale Transaction (the “Valuation Date”); and the value of securities that have no established public market or other property will be the fair market value of such securities or other property on the Valuation Date. If Sale Proceeds include any restricted stock (i.e. stock in a public company not freely tradeable), the value of the restricted stock shall be calculated by the Board in good faith.
     (C) The term “Affiliate”, as applied to a specified person, is a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the person specified.
  3. Automatic Terminations of the Employment Period. Section 3 of the January 2007 Letter Agreement is hereby deleted in its entirety and replaced by the following:
Notwithstanding anything contained in Sections 1(b) and 6(a) of the Original Employment Agreement or Section 1 of this Agreement (or any other provision of the Existing Employmen
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