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AMENDMENT TO EMPLOYMENT AGREEMENT

Employment Agreement Amendment

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SUNCOM WIRELESS HOLDINGS, INC. | SunCom Wireless Management Company, Inc

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Title: AMENDMENT TO EMPLOYMENT AGREEMENT
Date: 9/19/2007

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exv10w4
 

Exhibit 10.4
[SunCom Letterhead]
September 16, 2007
Mr. Raul Burgos
654 Munoz Rivera Avenue
Suite 2000
San Juan, Puerto Rico 00918
Dear Mr. Burgos:
          You previously entered into an employment agreement with SunCom Wireless Management Company, Inc. (the “Company”) dated as of September 6, 2006 (the “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 Employment Agreement as set forth below:
     1. Sale Transaction Bonus. If (a) SunCom has executed an agreement to engage in the Sale Transaction (as hereinafter defined) by December 31, 2007, (b) such Sale Transaction has been consummated by December 31, 2008, (c) SunCom enters into the Sale Transaction and the Sale Proceeds (as hereinafter defined) allocable to the sale of the PR Business (as defined below) equals or exceeds Five Hundred and Fifty Million Dollars ($550,000,000), (d) 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, (e) the Executive is otherwise in compliance with the terms of the Existing Employment Agreement as may be amended ay any time in the future, including by the terms of this Agreement, (f) 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 (g) 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 entitled to the payment of a sale bonus of Three Hundred Seventy-Five Thousand Dollars ($375,000) (the “Sale Bonus”). The determination of the amount of Sale Proceeds allocable to the PR Business shall be made by SunCom’s Board in its sole discretion.
     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 if 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 1 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 1, 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 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 Sale Bonus shall not be paid unless and until the Sale Proceeds which are not Contingent Sale Proceeds allocable to the sale of the PR Business equal or exceed $550,000,000 (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 1 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 Sale Bonus shall be contingent upon the Executive (or his executor, as applicable) executing and delivering a general release of claims against the Company and its Affiliates in a form reasonably consistent with the form attached hereto as Exhibit A.
          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.
          With respect to the Executives performing services primarily in connection with the operation of the businesses representing the Puerto Rico and U.S. Virgin Islands segment of SunCom (the “PR Business”), the term “Sale Transaction” shall also include (I) an acquisition, merger, consolidation, or other business combination pursuant to which the business or assets of the PR Business 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 Exchange Act, of equity interests or options, or any combination thereof constituting a majority of the then outstanding equity interests in the PR Business or possessing a majority of the then outstanding voting power of the equity interests in the PR Business (except as may occur with current stockholders or debtholders as a result of a restructuring), other than a buyer or buyer 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 of the PR Business, 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 the PR Business 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

 


 

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