EXHIBIT
10.46


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT
(“Agreement”), entered into and effective as of November 19, 2003 by and
between UbiquiTel Inc., a Delaware corporation (the “Company”), and James J.
Volk, Chief Financial Officer of the Company (“Executive”).


 


WHEREAS, the Company
wishes to assure the Executive’s continued employment and, to that end, to
provide Executive with certain severance benefits if Executive’s employment is
terminated under certain circumstances.


 


NOW, THEREFORE, the Company
and Executive hereby agree as follows:


 


1.  Termination.


 


a.  Termination by the Company.


 


(1) For Cause.  The Company may terminate Executive’s
employment hereunder at any time for Cause, as herein defined, in which case
the Company’s sole liability to Executive shall be for unpaid salary and
benefits (then owed or accrued and owed in the future) through the date of
termination and unreimbursed expenses incurred by Executive.


 


(2) Without Cause.  The Company may also terminate Executive’s
employment without Cause at any time upon written notice, but, in that event,
must pay to Executive a single lump sum in cash, within thirty (30) days,
unless another date is mutually agreed upon by the parties, equal to one (1)
year’s gross salary plus the bonus paid to Executive for the fiscal year next
preceding the year in which termination occurs, plus all unreimbursed expenses
incurred by Executive.


 


Notwithstanding
the foregoing, in the event payment is due to Executive under this
Section within twenty-four (24) months following a Change of Control, or
if Executive is terminated without Cause or terminates for Good Reason within
six (6) months prior to a Change of Control and it is reasonably demonstrated
by Executive that such termination or circumstances constituting Good Reason
(i) were the result of the request of a third party who has taken steps
reasonably calculated to effect the Change of Control or (ii) otherwise arose
in connection with or in anticipation of the Change of Control,


 


(A)
then in lieu of, and not in addition to, the amounts specified in the first
sentence of this Section 1.a.(2), the Company or the Company’s
successor-in-interest, as applicable, shall pay Executive a lump sum in cash,
within thirty (30) days after the date of termination, equal to two (2)
multiplied by the Executive’s total gross salary (not including bonus) for the
twelve (12)-month period preceding the date of termination, plus all
unreimbursed expenses incurred by Executive; and


 


(B)  Notwithstanding anything to the contrary in
Section 5 of


 


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Executive’s Nonqualified
Stock Option Agreement with the Company dated as of July 16, 2001, as
amended, Nonqualified Stock Option Agreement with the Company dated as of May
2, 2002 and Nonqualified Stock Option Agreement with the Company dated as of
August 7, 2003, each as may be amended from time to time, any unexercised
portion of the Options (as defined therein) shall automatically and without
notice terminate and become null and void on the date that is the earlier of
(I) three (3) years following the date on which Executive’s employment with the
Company or a successor-in-interest of the Company is terminated or (II) the
date set forth in Section 5(f) of the applicable Stock Option Agreement.


 


If Executive is
terminated without Cause, whether or not prior to or following a Change of
Control, all health, life insurance, long term disability, dental, and medical
program benefits to which Executive is then entitled and in which Executive is
enrolled on the date of termination shall continue for one (1) year as if
Executive had not been terminated.


 


(3) “Cause” Defined.  As used in this Agreement, termination for
“Cause” shall mean termination as a result of:


 


(i)                                     Executive’s
failure to cure any default, breach or failure to perform any of Executive’s
material obligations under the terms of this Agreement within thirty (30) days’
after written notice from the Company describing in detail Executive’s default,
breach or failure to perform, unless a failure to cure more promptly than such
thirty (30)-day period would result in a material adverse effect on the
Company, in which case that cure period shall be equal to the time required to
avoid a material adverse effect on the Company; or


 


(ii)                                  misconduct,
including but not limited to dishonesty, insubordination, or other acts on
Executive’s part materially detrimental to the goodwill of the Company or
materially damaging to the Company’s relationships with its customers,
employees, or others with whom it does business; or


 


(iii)                               acts
of moral turpitude which, in the reasonable opinion of the Company’s Board of
Directors are materially harmful to the business or reputation of the Company;
or


 


(iv)                              refusal
to obey reasonable and lawful directions of the Company’s Chief Executive
Officer or the Company’s Board of Directors other than as to any issue
insignificant to the Company’s business.


 


b.  Termination by Executive.


 


(1) Executive may
terminate Executive’s employment hereunder in the event of “Good Reason” after
thirty (30) days’ written notice from Executive to the Chief Executive Officer
and to the Board of Directors of the Company describing in detail the “Good
Reason,” if not cured.  In the event of
any such termination, the Company’s obligations to Executive shall be the same
as set forth in Section 1.a.(2) above, before or after a Change of


 


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Control, as applicable.


 


(2) Executive may resign
Executive’s employment hereunder other than for breach or failure to perform by
the Company at any time by giving thirty (30) days’ written notice to the Chief
Executive Officer and to the Board of Directors.  In the event of any such termination, the Company’s sole
obligations to Executive shall be for unpaid salary and benefits (then owed or
accrued and owed in the future) and reimbursement of expenses through the
effective date of termination specified in Executive’s notice.


 


(3) For the purposes of
this Agreement, “Good Reason” means:


 


(i)                                     the
assignment to Executive of any duties inconsistent in any material respect (in
any respect, whether or not material, following a Change of Control, as defined
below) with the duties of Executive as of the date of this Agreement, or any
other action by the Company that results in a material diminution (any
diminution, whether or not material, following a Change of Control) in
Executive’s position or authority, duty, titles, responsibilities, or reporting
requirements;


 


(ii)                                  any
relocation of Executive’s principal business location to a location other than
within 50 miles of its location on the date of this Agreement;


 


(iii)                               any
failure by the Company to comply with and satisfy Section 9 of this
Agreement; or


 


(iv)                              following
a Change of Control, a termination by Executive for any reason during the
thirty (30)-day period immediately following the first anniversary of the
Change of Control shall be deemed to be a termination for Good Reason for all
purposes of this Agreement.


 


c.  Termination by Death or Disability.  In the event of Executive’s death or
permanent disability during the term of this Agreement, Executive’s employment
shall terminate on the date of death or date of permanent disability (as
determined by the Board of Directors). 
In the event of such termination, the Company’s sole obligations to
Executive (or Executive’s estate) shall be for unpaid salary and benefits (then
owed or accrued and owed in the future) and reimbursement of expenses through
the effective date of termination.


 


2.  Change of Control.


 


a.  A “Change of Control” shall be deemed to
have occurred if (i) any “person” or “group” (as such terms are used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)), other than any Company employee stock ownership plan or
an equivalent retirement plan, becomes the beneficial owner (as such term is
used in Section 13(d) of the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined voting power
of the Company’s then outstanding voting securities, (ii) the members of the
Board of Directors on the date of this Agreement cease to consist of a majority
of Continuing Directors (as defined below), (iii) the consummation of a sale of
all or substantially all of the Company’s assets or a liquidation (as measured
by the fair


 


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value of the assets being
sold compared to the fair value of all of the Company’s assets), or (iv) a
merger or other combination occurs such that a majority of the equity
securities of the resultant entity after the transaction are not owned by those
who owned a majority of the equity securities of the Company prior to the
transaction.  A “Continuing Director”
shall mean a member of the Board of Directors who either (i) is a member of the
Board of Directors at the date of this Agreement or (ii) is nominated or
appointed to serve as a Director by a majority of the then Continuing
Directors.


 


b.  If it is determined that any payment or
distribution by the Company of benefits provided under this Agreement or any
other benefits due upon a Change of Control (the “Change of Control Benefits”)
would constitute an “excess parachute payment” within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”), that would be subject to an excise tax under Section 4999 of the
Code (the “Excise Tax”) the following provisions shall apply, unless provided
otherwise in the applicable plan, program or agreement that provides change of control
payments that are not paid pursuant to this Agreement.  If the aggregate present value to Executive
of receiving the Change of Control Benefits and paying the Excise Tax is not
greater than the aggregate present value to Executive of the Change of Control
Benefits reduced to the safe harbor amount (as defined below), then the Company
shall reduce those Change of Control Benefits specified by Executive such that
the aggregate present value to Executive of receiving the Change of Control
Benefits is equal to the safe harbor amount. 
Otherwise Executive shall receive the full amount of the Change of
Control Benefits and Executive shall be responsible for payment of the Excise
Tax.  For purposes of this paragraph
“present value” shall be determined in accordance with Section 280G(d)(4)
of the Code and the term “safe harbor amount” shall mean an amount expressed in
the present value that maximizes the aggregate present value of the Change of
Control Benefits without causing any of the Change of Control Benefits to be
subject to the deduction limitations set forth in Section 280G of the
Code.


 


c.  All determinations made pursuant to the
foregoing paragraph shall be made by the Company’s independent public
accountant immediately prior to the Change of Control (the “Accounting Firm”),
which firm shall provide its determinations and any supporting calculations
both to the Company and to Executive within ten (10) days of the termination
date.  Any such determination by the
Accounting Firm shall be binding upon Executive and the Company.  Executive shall then, in Executive’s sole
discretion, determine which and how much of the Change of Control Benefits
shall be eliminated or reduced consistent with the requirements of the foregoing
subsection.  All of the fees and
expenses of the Accounting Firm in performing the determinations referred to
above shall be borne solely by the Company.


 


3.  Restrictive Covenants.  As a condition to, and in consideration of,
the execution of this Agreement by the Company, Executive agrees to be bound by
the terms of the Noncompetition and Confidentiality Agreement attached hereto
as Exhibit A.


 


4.  Enforcement.  Executive acknowledges that the services to
be rendered under this Agreement by Executive are special, unique and of an
extraordinary character, and that irreparable injury will result to the Company
and its business and property if Executive breaches any of the covenants and
agreements contained in this Agreement or in Exhibit A hereto.  Therefore, Executive expressly agrees that
in the event of any such breach or threatened breach,


 


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the Company shall be
entitled to an injunction to restrain further breach of that covenant or
agreement by Executive or any of Executive’s partners, agents, employers, or
any persons acting for or with Executive, in addition to any other rights or
remedies available to it, at law or in equity, other than specific performance
to enforce the obligation of Executive to provide services to the Company.


 


5.  Survival.  The provisions of Sections 3 and 4 shall survive, along with
Exhibit A, the termination of this Agreement.


 


6.  No Mitigation or Set Off.  In no event shall Executive be obligated to
seek other employment or take any other action by way of mitigation of the
amounts payable to Executive under any of the provisions of this Agreement and
such amounts shall not be reduced, regardless of whether Executive obtains
other employment.  The Company’s
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense
or other right which the Company may have against Executive or others.


 


7.  Return of Documents.  Upon termination of Executive’s employment,
Executive agrees to return all documents belonging to the Company in
Executive’s possession including, but not limited to, contracts, agreements,
licenses, business plans, equipment, software, software programs, products,
work-in-progress, source code, object code, computer disks, books, notes and
all copies thereof, whether in written, electronic or other form.  In addition, Executive shall certify to the
Company in writing as of the effective date of termination that none of the
assets or business records belonging to the Company are in Executive’s
possession, remain under Executive’s control, or have been transferred to any
third person.


 


8.  Effect of Waiver.  The waiver by either party of a breach of
any provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach hereof.  No
waiver shall be valid unless in writing.


 


9.  Assignment.  The rights and obligations of the Company shall inure to the benefit
of and be binding upon its successors and assigns.  This Agreement may not be assigned by either party without the
express prior written consent of the other party hereto, except that the
Company may assign this Agreement to any subsidiary or affiliate of the
Company, provided that no such assignment shall relieve the Company of its
obligations hereunder without the written consent of Executive.


 


10.  Entire Agreement.  This Agreement sets forth the entire
agreement of the parties hereto and supersedes any and all prior agreements and
understandings concerning the matters covered hereby.  This Agreement may be changed only by a written document signed
by Executive and the Company.


 


11.  Severability.  If any one or more of the provisions, or
portions of any provision, of this Agreement shall be held to be invalid,
illegal or unenforceable, the validity, legality or enforceability of the
remaining provisions or parts hereof shall not in any way be affected or
impaired thereby.


 


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12.  Governing Law/Jurisdiction.  This Agreement shall be governed by, and
construed and enforced in accordance with, the substantive and procedural laws
of the State of Delaware without regard to rules governing conflicts of law.


 


13.  Arbitration.  Any controversy, claim or dispute arising
out of or relating to this Agreement or Executive’s employment by the Company,
including, but not limited to, common law and statutory claims for
discrimination, wrongful discharge, and unpaid wages, shall be resolved by
arbitration in Wilmington, Delaware pursuant to then prevailing National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association; provided, that nothing in this Section shall be construed as precluding
the Company or Executive from bringing an action for injunctive or other
equitable relief.  The Company may elect
to proceed to court without first resorting to arbitration in the event that
Executive breaches any provision of the Noncompetition and Confidentiality
Agreement.  It is the intent of the
Company that, following a Change of Control, Executive not be required to incur
any expenses associated with the enforcement of Executive’s rights under this
Agreement by arbitration, litigation or other legal action because the cost and
expense thereof would substantially detract from the benefits intended to be
extended to Executive hereunder. 
Accordingly, the Company shall pay Executive on demand the amount necessary
to reimburse Executive in full for all expenses (including all attorneys’ fees
and legal expenses) incurred by Executive in enforcing any of the obligations
of the Company under this Agreement following a Change of Control.


 


14.                                 Indemnification.  During the period of Executive’s employment,
Executive shall be entitled to indemnification and insurance coverage for
directors and officers liability, fiduciary liability and other liabilities
arising out of Executive’s position with the Company in any capacity, in an
amount not less than the highest amount available to any other senior level
executive and to the full extent provided by the Company’s certificate of
incorporation or by-laws, and such coverage and protections, with respect to
the various liabilities as to which Executive has been customarily indemnified
prior to termination of employment, shall continue for at least six years
following Executive’s termination of employment.


 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.


 


	
   

  	
  UBIQUITEL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Donald
  A. Harris

  
	
   

  	
  Its:

  	
    President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/

  	
  James J. Volk

  
	
   

  	
   

  	
   

  	
  James J. Volk

  



 


Exhibits:


A – Noncompetition and
Confidentiality Agreement


 


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Exhibit
A


 


Noncompetition
and Confidentiality Agreement


 


In consideration of the
employment of Executive, and the compensation, training and access to
confidential information provided to Executive, and in consideration of the
terms and conditions contained herein and for other good and valuable
consideration, the Company and Executive agree as follows:


 


Business.  The Company is a Sprint PCS affiliate and is
in the business of offering, providing, marketing and procuring customers for
commercial mobile radio service, including personal communications service
(“PCS”) and other wireless and similarly situated voice, radio, telephone,
paging and messaging services, and ancillary services (the “Business”).


 


Confidentiality.  Executive acknowledges and understands that
Executive will be given access to certain confidential, secret and proprietary
information and materials owned by the Company or which relate to the Company’s
Business, including but not limited to, all information not generally known to
the public that relates to the business, technology, subscribers, finances,
plans, proposals or practices of the Company, and its includes, without
limitation, the identity of all actual and prospective subscribers and
customers, customer lists, files and all information relating to individual
customers and subscribers, including their address and phone numbers, all
business plans and proposals, all marketing plans and proposals, all technical
plans and proposals, all research and development, all budgets, wage and salary
information, and projections, all nonpublic financial information, information
on suppliers, and information on all persons for whom the Company performs
services or to whom the Company makes sales during the course of the Company’s
business, and all other information the Company designates as “confidential”
(hereafter the “Confidential Information”). 
The Company and Executive each acknowledge and agree that all
Confidential Information shall be considered trade secrets of the Company and
shall be entitled to all protections given by law to trade secrets.  Executive shall not disclose any
Confidential Information, or use it for any purpose, other than in advancing
the business interests of the Company, except as required by law or in any
judicial or administrative proceeding. 
Confidential Information shall apply to every form in which information
shall exist, whether written, film, tape, computer disk or other form of media,
including original materials and any copies thereof.


 


Covenant Not to Compete.  Executive agrees that, during the term of
Executive’s employment, Executive shall not, either directly or indirectly,
with or without compensation, individually or as an employee, broker, agent,
consultant, contractor, advisor, solicitor, greater than 5% stockholder, trust
beneficiary, proprietor, partner, or person interested in, affiliated with or
rendering services to any other entity, engage in, provide, offer to provide,
or assist anyone in providing, services to or for a business that provides
wireless telecommunications services similar to those services offered by the
Company in any territory in which the Company is a Sprint PCS affiliate.


 


Non-Solicitation of
Employees.  Executive
further agrees that during the term of Executive’s employment and for a period
of one year immediately following the termination of such employment for any
reason whatsoever, Executive shall not directly or indirectly induce or


 


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attempt to influence any
employee of the Company to terminate his/her employment with the Company or to
work for Executive or any other person or entity.


 


Reasonableness of
Restrictions. 
Executive acknowledges that the restrictions contained in this Agreement
are reasonable in time, scope and geographic restraints, and do not
unreasonably restrict Executive’s ability to obtain other employment.  Executive further warrants that the
restrictions do not impose an undue hardship on Executive, and do not deprive
Executive of an ability to earn a living.


 


Remedies for Breach of
Covenants.  In the
event of any breach or threatened breach of any of the provisions herein, in
addition to any other rights or remedies available to the Company, the Company
shall have the right to seek monetary damages and equitable relief, including
specific performance by means of temporary, preliminary or permanent
injunctions against Executive or against Executive’s partners, agents,
representatives, servants, employers, employees, family members and/or any and
all persons acting directly or indirectly by or with Executive, to prevent or
restrain such breach.  With respect to
any such equitable actions or proceedings, Executive agrees that no adequate
legal remedy exists, and hereby waives any defense that an adequate remedy at
law exists and any requirement that the Company prove damages.  Executive agrees that the Company’s rights
to seek injunctive and other equitable relief shall be and are cumulative and
not exclusive and shall be in addition to any other remedies that the Company
may have.


 


Choice of Law; Attorneys’
Fees.  This Agreement
will be governed by the laws of the State of Delaware.  If any action is necessary to enforce or
interpret the terms of this Agreement, each party shall bear such party’s own
expenses of litigation, including without limitation, attorneys and experts
fees and costs, and any costs of appeal.


 


Business Opportunities.  Executive agrees that Executive shall
promptly disclose to the Company any business opportunity of which Executive
becomes aware during Executive’s employment with the Company which relates to
any product or services planned, under development, developed, produced or
marketed by the Company and which Executive becomes aware in the course of or
as a result of Executive’s employment with the Company.  Executive agrees that Executive will not
take advantage of or divert any such opportunity for the direct or indirect
gain, profit or benefit of Executive or any other person or entity.


 


Other Restrictions.  Executive warrants that Executive is not
subject to any restrictive covenants or other legal disability, which would
prevent Executive from entering into this Agreement and from complying with its
provisions to their fullest extent. 
Executive understands and agrees that Executive is not expected to, and
shall not disclose trade secret or confidential information from any previous
employer or any other party.


 


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