EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made, entered into and is
effective as of the effective date (the "Effective Date") of the Joint Plan of
Reorganization for Horizon PCS, Inc., a Delaware corporation (the "Company"),
Horizon Personal Communications, Inc. and Bright Personal Communications
Services, LLC Under Chapter 11 of the Bankruptcy Code (the "Plan"), by and
between the Company and Xxxxx Xxxxxxx ("Executive").
WITNESSETH THAT:
WHEREAS, the Company desires to continue to employ Executive and Executive
desires to continue his employment with the Company, all effective as of the
Effective Date;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Company and Executive as
follows:
1. EMPLOYMENT PERIOD. Subject to the terms and conditions of this
Agreement, the Company hereby agrees to employ Executive during the Employment
Period (as defined below) and Executive hereby agrees to remain in the employ of
the Company and to provide services during the Employment Period in accordance
with this Agreement. The "Initial Employment Period" shall be the period
beginning on the Effective Date and ending on the third anniversary thereof. At
the conclusion of the Initial Employment Period, this Agreement shall
automatically renew for additional one year terms (each a "Renewal Employment
Period" and together with the Initial Employment Period, the "Employment
Period") unless either party gives written notice of intent not to renew at
least nine months prior to the beginning of any Renewal Employment Period. Upon
the expiration of the Employment Period, Executive's employment with the Company
shall terminate. The Employment Period may be sooner terminated as provided in
this Agreement.
2. DUTIES. Executive agrees that during the Employment Period, Executive
will devote all of his business time, energies and talents to serving as the
Chief Financial Officer of the Company. During the Employment Period, Executive
shall report to Chief Executive Officer of the Company and/or the Board of
Directors of the Company (the "Board") and/or the Executive Committee of the
Board (the "Executive Committee") as they may determine. Executive shall have
such duties and responsibilities as are customary to the position of chief
financial officer of comparable companies and such other duties and
responsibilities as may be assigned to Executive from time to time by the
Company; provided, that, such powers and duties are consistent with Executive's
position as Chief Financial Officer and do not violate any applicable laws or
regulations. During the Employment Period, Executive shall perform all duties
assigned to Executive faithfully and efficiently, subject to the direction of
the Company. Executive will perform the duties required by this Agreement at the
Company's principal place of business unless the nature of such duties requires
otherwise. The parties acknowledge and agree that Horizon Telcom, to the extent
it continues the same or a substantially similar business that it operates as of
the date hereof, is not and shall not be construed to be competitor of the
Company.
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3. COMPENSATION AND BENEFITS.
(a) Annual Base Salary. During the Employment Period, Executive shall be
compensated at an annual rate of $230,000 (the "Annual Base Salary"), which
shall be payable in accordance with the normal payroll practices of the Company.
Executive's rate of Annual Base Salary shall be periodically reviewed by the
Board and/or the Compensation Committee of the Board (the "Compensation
Committee") for increase, but in no event will it be decreased.
(b) Bonus. During the Employment Period, Executive shall be eligible to be
paid performance based incentive bonuses (each, the "Incentive Bonus") from the
Company in accordance with the Company's executive compensation incentive plan
as in effect from time to time (the "Incentive Bonus Plan"). The Incentive Bonus
at the target level of performance will be 40% of the Annual Base Salary for the
year to which the bonus relates (the "Target Incentive Bonus"). Notwithstanding
any other provision of this Section 3, the Target Incentive Bonus for fiscal
year 2004 shall be based on a full year notwithstanding that the Effective Date
occurs after the first day of the fiscal year. Any such Bonus earned during a
fiscal year shall be paid at such time as the Company customarily pays annual
bonuses.
(c) Stock Options.
(i) On the Effective Date or as soon as administratively feasible
thereafter, the Company shall grant Executive stock options to acquire 148,005
shares of the Company's common stock (the "Option") under such terms and
conditions as provided for under the Company's then existing stock option plan
which are not inconsistent with clause (ii) below.
(ii) The Option described in clause (i) above shall be granted subject
to the following terms and conditions: (A) the Option shall be granted under and
subject to the Company's stock option plan (the "Option Plan"); (B) the exercise
price per share of each Option shall be $17.76; (C) the Option shall be vested
as to 16.67% of the shares subject thereto on each sixth month anniversary of
the date of grant until the Option is 100% vested; provided, that, the Option
shall cease to vest upon Executive's termination of employment; (D) the Option
shall be exercisable for the ten (10) year period following the date of grant;
provided, that, upon Executive's termination of employment for any reason, any
unvested portion of the Option shall automatically terminate and the vested
portion of the Option shall remain exercisable for 30 days after Executive's
termination of employment, but in no event beyond the original term of the
Option; provided, further, that, if Executive's employment is terminated by the
Company without Cause or by Executive for Good Reason, the Option shall become
100% vested and remain exercisable for 90 days following such termination of
employment (180-days if such termination occurs concurrent with or within 6
months following a Change in Control (as defined in the Option Plan)), but in no
event beyond the original term of the Option; and (E) the Option shall be
evidenced by, and subject to, a stock option agreement whose terms and
conditions are consistent with the terms hereof.
(d) Pension and Welfare Benefits. During the Employment Period and except
as otherwise specifically provided to the contrary in this Agreement, Executive
shall be provided with pension, welfare and fringe benefits to the same extent
and on the same terms as those benefits are provided by the Company from time to
time to the Company's other senior
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management employees. Notwithstanding the foregoing, such Company pension,
welfare and fringe benefit plans may be amended or terminated at any time in
accordance with the term of such plans. During the Employment Period, Executive
shall be provided vacation and sick leave in accordance with Company policy.
(e) Reimbursement of Expenses. The Company shall promptly reimburse
Executive for all reasonable business expenses upon the presentation of
reasonably itemized statements of such expenses in accordance with the Company's
policies and procedures now in force or as such policies and procedures may be
modified with respect to all senior executive officers of the Company.
(f) Car Allowance and other Perquisites. During the Employment Period,
Executive shall be provided a $1,200.00 per month automobile allowance. The
Company shall also provide Executive with all other perquisites approved by the
Board from time to time.
4. TERMINATION. Executive's employment hereunder may be terminated during
the Employment Period under the following circumstances:
(a) Death. Executive's employment hereunder shall terminate upon his death.
(b) Disability. If, as a result of Executive's incapacity due to physical
or mental illness, Executive shall have been substantially unable to perform his
duties hereunder for 120 days in any 365 day period, the Company shall have the
right to terminate Executive's employment hereunder for "Disability", and such
termination in and of itself shall not be, nor shall it be deemed to be, a
breach of this Agreement.
(c) Cause. The Company shall have the right to terminate Executive's
employment for Cause, and such termination in and of itself shall not be, nor
shall it be deemed to be, a breach of this Agreement. For purposes of this
Agreement, the Company shall have "Cause" to terminate Executive's employment
hereunder upon: (i) Executive's conviction of, or plea of guilty or no contest
to: (A) any felony or other criminal offense that could result in imprisonment
of at least 1 year or (B) a crime involving fraud, theft, misappropriation,
dishonesty or embezzlement under either federal or state law; (ii) Executive's
dishonesty in communications to the Board, any member of the Board or any other
superior officer or superior employee he is required to report to in the course
of fulfilling Executive's material employment duties; (iii) Executive's proven
commission of intentional or grossly negligent acts that materially impair the
goodwill or business of the Company or cause material damage to its property,
goodwill or business; or (iv) Executive's willful failure to perform Executive's
employment duties in any material respect (other than as a result of Executive's
short term disability or medical emergency involving a member of Executive's
immediate family, or as the result of any Company approved leave). If the Board
has reasonable belief that Executive has committed any of the acts described
above, it may suspend Executive (with pay) while it investigates whether it has
or could have Cause to terminate Executive. The Company may terminate Executive
for Cause prior to the completion of its investigation; provided, that, if it is
ultimately determined that Executive has not committed an act which would
constitute Cause, Executive, at the option of the Board, shall be reinstated
effective as of the date of suspension or shall be treated as if he were
terminated without Cause.
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(d) Good Reason. Executive may terminate his employment for "Good Reason"
by providing the Company ninety (90) days advance written notice within thirty
(30) days after Executive has actual knowledge of the occurrence, without the
written consent of Executive, of (i) any reduction in Executive's Annual Base
Salary or Target Incentive Bonus opportunity; (ii) any requirement by the
Company that Executive's services be rendered primarily at a location or
locations other than within 35 miles of Executive's current office location for
other than a de minimis period of time, without Executive's prior written
consent; provided, that, Executive shall not have Good Reason if he is required
to engage in reasonable amounts of travel on Company business, or (iii) a
material adverse alteration in the nature and status of Executive's
responsibilities unless such alteration is remedied within thirty days following
written notification by Executive to the Company of the alleged material adverse
alteration. Such termination shall not be nor shall it be deemed to be a breach
of this Agreement. Executive shall have Good Reason to terminate his employment
under clause (d) if the Company is acquired by or merged with, a Sprint PCS
affiliate (excluding Sprint FON Group in such affiliated group) and Executive is
not appointed the chief financial officer of the acquired or merged entity at
the time of such acquisition or merger.
(e) Without Cause. The Company shall have the right to terminate
Executive's employment hereunder without Cause at any time by providing
Executive with a Notice of Termination and such termination shall not in and of
itself be, nor shall it be deemed to be, a breach of this Agreement.
(f) Without Good Reason. Executive shall have the right to terminate his
employment hereunder without Good Reason by providing the Company with a Notice
of Termination at least ninety (90) days prior to such termination, and such
termination shall not in and of itself be, nor shall it be deemed to be, a
breach of this Agreement.
(g) Expiration of the Employment Period. Executive's employment shall
automatically terminate upon expiration of the Employment Period and such
termination shall not be a breach of this Agreement.
5. TERMINATION PROCEDURE.
(a) Notice of Termination. Any termination of Executive's employment by the
Company or by Executive during the Employment Period (other than termination
pursuant to Section 4(a)) shall be communicated by written Notice of Termination
to the other party hereto in accordance with Section 11. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated.
(b) Date of Termination. "Date of Termination" shall mean (i) if
Executive's employment is terminated by his death, the date of his death, (ii)
if Executive's employment is terminated pursuant to Section 4(b), fifteen (15)
days after Notice of Termination (provided that Executive shall not have
returned to the substantial performance of his duties on a full-time basis
during such fifteen (15) day period), and (iii) if Executive's employment is
terminated for any
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other reason, the date on which a Notice of Termination becomes effective as
provided for in Section 4 which shall not be later than ninety (90) days after
the giving of such notice.
6. RIGHTS AND PAYMENTS UPON TERMINATION. In the event Executive is disabled
or his employment terminates during the Employment Period, the Company shall
provide Executive with the payments set forth below. Executive acknowledges and
agrees that the payments set forth in this Section 6 constitute liquidated
damages for termination of his employment during the Employment Period and that
prior to receiving any such payments under Section 6 and as a material condition
thereof, Executive shall, if requested by the Company, sign and agree to be
bound by a general release of claims against the Company and its affiliates
related to Executive's employment (and termination of employment) with the
Company in such form as the Company's Board deems appropriate. Upon Executive's
termination of employment for any reason, upon the request of the Board, he
shall resign any officerships, directorships or other positions that he then
holds with the Company or any of its affiliates.
(a) Minimum Payments. If Executive's Date of Termination occurs during the
Employment Period for any reason, Executive shall be entitled to the following
payments, in addition to any payments or benefits to which Executive may be
entitled under the following provisions of this Section 6 (other than this
Section 6(a)) or the express terms of any employee benefit plan or as required
by law:
(i) Executive's earned, but unpaid Annual Base Salary for the period
ending on Executive's Date of Termination;
(ii) Executive's earned and awarded, but unpaid Incentive Bonus, if
any, for the prior fiscal year;
(iii) to the extent permitted by the Company's vacation policies as
they may exist from time to time, Executive's accrued, but unpaid vacation pay
for the period ending with Executive's Date of Termination; and
(iv) Executive's unreimbursed business expenses under Section 3(c) of
this Agreement through and including, the Date of Termination;
provided, that, in the event Executive's employment is terminated by the Company
for Cause or by Executive without Good Reason, the Company will not have an
obligation to pay Executive the amounts, if any, under clause (ii) of this
Section 6(a).
Payments to be made to Executive pursuant to this Section 6(a) shall be made
within 30 days after Executive's Date of Termination. Except as may be otherwise
expressly provided to the contrary in this Agreement or as otherwise provided by
law, nothing in this Agreement shall be construed as requiring Executive to be
treated as employed by the Company following Executive's Date of Termination for
purposes of any employee benefit plan or arrangement in which Executive may
participate at such time.
(b) Termination by the Company For Cause or by Executive without Good
Reason or Upon Expiration of the Employment Period. If Executive's Date of
Termination occurs during the Employment Period and is a result of the Company's
termination of Executive's employment
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on account of Cause, by Executive without Good Reason or upon expiration of the
Employment Period, then, except as described in Section 6(a), Executive shall
have no right to payments or benefits under this Agreement (and the Company
shall have no obligation to make any such payments or provide any such benefits)
for periods after Executive's Date of Termination.
(c) Termination for Death or Disability. If Executive's Date of Termination
occurs during the Employment Period and is a result of Executive's death or
Disability, in addition to the amounts described in Section 6(a) above,
Executive (or in the event of Executive's death, Executive's estate) shall be
entitled to the following:
(i) continuing payments of Executive's Annual Base Salary (payable in
accordance with Section 3(a)) for the Continuation Period (as defined below);
(ii) to the extent elected by Executive, the Company shall pay on
behalf of Executive and his "qualified beneficiaries" as defined in Section
4980B of the Internal Revenue Code of 1986, as amended ("COBRA") for the lesser
of (A) the Continuation Period or (B) the period Executive remains eligible for
COBRA under law, at a cost which is no greater than is charged to active
employees of the Company and their dependents, his COBRA premiums (the "COBRA
Payments"); and
(iii) a lump sum payment equal to the Target Incentive Bonus for the
year in which the Date of Termination occurs, prorated (on a daily basis)
through Executive's Date of Termination.
For purposes of this Agreement, the "Continuation Period" shall be the period
commencing on Executive's Date of Termination and ending on the earlier of (A)
the first anniversary of Executive's Date of Termination or (B) the date on
which Executive violates the provisions of Section 8 of this Agreement. All lump
sum payments required under this Section 6(c) shall be made no later than 15
days after the Date of Termination.
(d) Termination without Cause or for Good Reason. In the event of the
termination of Executive's employment during the Employment Period by the
Company without Cause or by Executive for Good Reason, in addition to the
amounts described above in Section 6(a), the Company shall provide Executive
with the payments and benefits described in this Section 6(d):
(i) continuing payments of Executive's Annual Base Salary (payable in
accordance with Section 3(a) for eighteen months from the Date of Termination
(twenty-seven months if such termination occur on or within the six month period
immediately after the effective date of a Change in Control (as defined in the
Company's 2004 Stock Incentive Plan)) and
(ii) the COBRA Payments for the lesser of (A) the Continuation Period
or (B) the period Executive remains eligible for COBRA.
7. CESSATION OF DUTIES UPON TERMINATION. Notwithstanding any other
provision of this Agreement, Executive shall automatically cease to be an
officer of the Company and its subsidiaries as of Executive's Date of
Termination and, to the extent permitted by applicable law, any and all monies
that Executive owes to the Company shall be repaid to the
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extent possible, through deduction of such amounts from any post-termination
payments owed to Executive pursuant to this Agreement.
8. RESTRICTIVE COVENANTS.
(a) Acknowledgments. Executive acknowledges that: (i) as a result of
Executive's employment by the Company, Executive has obtained and will obtain
Confidential Information; (ii) the Confidential Information has been developed
and created by the Company and its affiliates at substantial expense and the
Confidential Information constitutes valuable proprietary assets; (iii) the
Company and its affiliates will suffer substantial damage and irreparable harm
which will be difficult to compute if, during the Employment Period and
thereafter, Executive should enter a Competitive Business (as defined herein) in
violation of the provisions of this Agreement; (iv) the nature of the Company's
and its affiliate's business is such that it could be conducted any where in the
world and that it is not limited to a geographic scope or region; (v) the
Company and its affiliates will suffer substantial damage which will be
difficult to compute if, during the term of employment or thereafter, Executive
should solicit or interfere with the Company's and its affiliate's employees,
clients or customers or should divulge Confidential Information relating to the
business of the Company and its affiliates; (vi) the provisions of this
Agreement are reasonable and necessary for the protection of the business of the
Company and its affiliates; (vi) the Company would not have hired or continued
to employ Executive or grant the Options and other benefits contemplated under
Agreement unless he agreed to be bound by the terms hereof; and (vii) the
provisions of this Agreement will not preclude Executive from other gainful
employment. "Competitive Business" as used in this Agreement shall mean any
business which competes, with any aspect of the Company's or its affiliates'
business. "Confidential Information" as used in this Agreement shall mean any
and all confidential and/or proprietary knowledge, data, or information of the
Company or any affiliate, including, without limitation, any: (A) trade secrets,
drawings, inventions, methodologies, mask works, ideas, processes, formulas,
source and object codes, data, programs, software source documents, works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques, and all other work product of the Company or any affiliate, whether
or not patentable or registrable under trademark, copyright, patent or similar
laws; (B) information regarding plans for research, development, new service
offerings and/or products, marketing, advertising and selling, distribution,
business plans, business forecasts, budgets and unpublished financial
statements, licenses, prices and costs, suppliers, customers or distribution
arrangements; (C) any information regarding the skills and compensation of
employees, suppliers, agents, and/or independent contractors of the Company or
any affiliate; (D) concepts and ideas relating to the development and
distribution of content in any medium or to the current, future and proposed
products or services of the Company or any affiliate; or (E) any other
information, data or the like that is labeled confidential or orally disclosed
to Executive as confidential.
(b) Confidentiality. In consideration of the benefits provided for this
Agreement, Executive agrees not to, at any time, either during the Employment
Period or thereafter, divulge, use, publish or in any other manner reveal,
directly or indirectly, to any person, firm, corporation or any other form of
business organization or arrangement and keep in the strictest confidence any
Confidential Information, except (i) as may be necessary to the performance of
Executive's duties hereunder, (ii) with the Company's express written consent,
(iii) to the extent that any such information is in or becomes in the public
domain other than as a result of Executive's breach of
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any of obligations hereunder, or (iv) where required to be disclosed by court
order, subpoena or other government process and in such event, Executive shall
cooperate with the Company in attempting to keep such information confidential.
Upon the request of the Company, Executive agrees to promptly deliver to the
Company the originals and all copies, in whatever medium, all such Confidential
Information.
(c) Non-Compete. In consideration of the benefits provided for in this
Agreement, Executive covenants and agrees that during the Employment Period and
for a period of twelve (12) months following the termination of his employment
for whatever reason, (the "Restricted Period"), he will not, for himself, or in
conjunction with any other person, firm, partnership, corporation or other form
of business organization or arrangement (whether as a shareholder, partner,
member, principal, agent, lender, director, officer, manager, trustee,
representative, employee or consultant), directly or indirectly, be employed by,
provide services to, in any way be connected, associated or have any interest
in, or give advice or consultation to any Competitive Business.
(d) Non-Solicitation of Executives. In consideration of the payments and
benefits provided for in this Agreement, Executive covenants and agrees that
during the Restricted Period, Executive shall not, without the prior written
permission of the Company, directly or indirectly solicit, employ or retain, or
have or cause any other person or entity to solicit, employ or retain, any
person who is employed or is providing services to the Company and its
affiliates at the time of his termination of employment or was or is providing
such services within the twelve (12) month period before or after his
termination of employment.
(e) Non-Solicitation of Clients and Customers. In consideration of the
payments and benefits provided for in this Agreement, Executive covenants and
agrees that during the Restricted Period, he will not, for himself, or in
conjunction with any other person, firm, partnership, corporation or other form
of business organization or arrangement (whether as a shareholder, partner,
member, lender, principal, agent, director, officer, manager, trustee,
representative, employee or consultant), directly or indirectly: (i) solicit or
accept any business that is directly related to the business of the Company or
its affiliates, from any person or entity who, at the time of, or at the time
during the twelve months preceding such termination, was an existing or
prospective customer or client of the Company or its affiliates; (ii) request or
cause any of the Company's or its affiliates' clients or customers to cancel or
terminate any business relationship with the Company or its affiliates involving
services or activities which were directly or indirectly the responsibility of
Executive during his employment; or (iii) request or cause any employee of the
Company or its affiliates to breach or threaten to breach any terms of said
employee's agreements with the Company or its affiliates or to terminate his or
his employment with the Company or its affiliates.
(f) Post-Employment Property. The parties agree that any work of
authorship, invention, design, discovery, development, technique, improvement,
source code, hardware, device, data, apparatus, practice, process, method or
other work product whatever (whether patentable or subject to copyright, or not,
and hereinafter collectively called "discovery") related to training or
marketing methods and techniques that Executive, either solely or in
collaboration with others, has made or may make, discover, invent, develop,
perfect, or reduce to practice during the term of his employment, or within six
(6) months thereafter, whether or not during
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regular business hours and created, conceived or prepared on the Company's or
any affiliates' premises or otherwise shall be the sole and complete property of
the Company and/or its affiliates. More particularly, and without limiting the
foregoing, Executive agrees that all of the foregoing and any (i) inventions
(whether patentable or not, and without regard to whether any patent therefor is
ever sought), (ii) marks, names, or logos (whether or not registrable as trade
or service marks, and without regard to whether registration therefor is ever
sought), (iii) works of authorship (without regard to whether any claim of
copyright therein is ever registered), and (iv) trade secrets, ideas, and
concepts ((i) - (iv) collectively, "Intellectual Property Products") created,
conceived, or prepared on the Company's or its affiliates' premises or
otherwise, whether or not during normal business hours, shall perpetually and
throughout the world be the exclusive property of the Company and/or its
affiliates, as the case may be, as shall all tangible media (including, but not
limited to, papers, computer media of all types, and models) in which such
Intellectual Property Products shall be recorded or otherwise fixed. Executive
further agrees promptly to disclose in writing and deliver to the Company all
Intellectual Property Products created during his engagement by the Company, or
within six (6) months thereafter, whether or not during normal business hours.
Executive agrees that all works of authorship created by Executive during his
engagement by the Company shall be works made for hire of which the Company or
its affiliates is the author and owner of copyright. To the extent that any
competent decision-making authority should ever determine that any work of
authorship created by Executive during his engagement by the Company is not a
work made for hire, Executive hereby assigns all right, title and interest in
the copyright therein, in perpetuity and throughout the world, to the Company.
To the extent that this Agreement does not otherwise serve to grant or otherwise
vest in the Company or its affiliates all rights in any Intellectual Property
Product created by Executive during his engagement by the Company, or within six
(6) months thereafter, Executive hereby assigns all right, title and interest
therein, in perpetuity and throughout the world, to the Company. Executive
agrees to execute, immediately upon the Company's reasonable request and without
charge, any further assignments, applications, conveyances or other instruments,
at any time after execution of this Agreement, whether or not Executive is
engaged by the Company at the time such request is made, in order to permit the
Company, its affiliates and/or their respective assigns to protect, perfect,
register, record, maintain, or enhance their rights in any Intellectual Property
Product; provided, that, the Company shall bear the cost of any such
assignments, applications or consequences. Upon termination of Executive's
employment by the Company for any reason whatsoever, and at any earlier time the
Company so requests, Executive will immediately deliver to the custody of the
person designated by the Company all originals and copies of any documents and
other property of the Company in Executive's possession, under Executive's
control or to which he may have access.
(g) Non-Disparagement. Executive acknowledges and agrees that he will not
defame or publicly criticize the services, business, integrity, veracity or
personal or professional reputation of the Company and/or its affiliates and
their respective officers, directors, partners, executives or agents thereof in
either a professional or personal manner at any time during or following the
Employment Period.
(h) Enforcement. If Executive commits a breach, or threatens to commit a
breach, of any of the provisions of this Section 8, the Company shall have the
right and remedy to have the provisions specifically enforced by any court
having jurisdiction, it being acknowledged and agreed by Executive that the
services being rendered hereunder to the Company are of a special,
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unique and extraordinary character and that any such breach or threatened breach
will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company. Such right and remedy shall be in
addition to, and not in lieu of, any other rights and remedies available to the
Company at law or in equity. Accordingly, Executive consents to the issuance of
an injunction, whether preliminary or permanent, consistent with the terms of
this Agreement. In addition, the Company shall have the right to cease making
any payments or provide any benefits to Executive under this Agreement in the
event he breaches or threatens to breach any of the provisions hereof,
including, without limitation, Section 4(d) of this Agreement.
(i) Blue Pencil. If, at any time, the provisions of this Section 8 shall be
determined to be invalid or unenforceable under any applicable law, by reason of
being vague or unreasonable as to area, duration or scope of activity, this
Agreement shall be considered divisible and shall become and be immediately
amended to only such area, duration and scope of activity as shall be determined
to be reasonable and enforceable by the court or other body having jurisdiction
over the matter and Executive and the Company agree that this Agreement as so
amended shall be valid and binding as though any invalid or unenforceable
provision had not been included herein.
(j) EXECUTIVE ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS SECTION 8 AND
HAS HAD THE OPPORTUNITY TO REVIEW ITS PROVISIONS WITH ANY ADVISORS AS HE
CONSIDERED NECESSARY AND THAT EXECUTIVE UNDERSTANDS THIS AGREEMENT'S CONTENTS
AND SIGNIFIES SUCH UNDERSTANDING AND AGREEMENT BY SIGNING BELOW.
9. CONTINUED INDEMNIFICATION. During the term of and after the expiration
of this Agreement, Company shall continue to indemnify Executive, who is or may
be in the future a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that Executive is or was a
director, officer or employee of the company, or is or was serving at the
request of the company as a director, trustee, officer, member, or employee of
another corporation, domestic or foreign, non-profit or for profit, partnership,
joint venture, trust or other enterprise against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding, to the extent and
under the circumstances permitted by the Company's charter and by-laws as they
are in effect.
10. RESOLUTION OF DIFFERENCES OVER BREACH OF AGREEMENT. The parties shall
use good faith efforts to resolve any controversy or claim arising out of, or
relating to this Agreement or the breach thereof, first in accordance with the
Company's internal review procedures, except that this requirement shall not
apply to any claim or dispute under or relating to Section 8 of this Agreement.
If despite their good faith efforts the parties are unable to resolve such
controversy or claim through the Company's internal review procedures, then,
except as provided in Section 8(h), such controversy or claim shall be resolved
by binding arbitration for resolution in the state of Columbus, Ohio in
accordance with the rules and procedures of the Employment Dispute Resolution
Rules of the American Arbitration Association then in effect. The decision of
the arbitrator shall be final and binding on both
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parties and, any court of competent jurisdiction may enter judgment upon award.
Each party shall pay its own expenses, including legal fees, in such dispute and
shall split the cost of the arbitrator and the arbitration proceedings.
11. NOTICES. Any notices provided for in this Agreement shall be in writing
and shall be deemed to have been duly received when delivered in person or sent
by facsimile transmission, on the first business day after it is sent by air
express courier service or on the second business day following deposit in the
United States registered or certified mail, return receipt requested, postage
prepaid and addressed, in the case of Executive, to the most recent home address
reflected in the Company's records and, in the case of the Company, to its
principal executive offices, or such other address as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon actual receipt. In addition,
on and after Executive's Date of Termination, the Company shall notify Executive
of the person or persons Executive should contact regarding matters relating to
this Agreement (and the address and telephone number of such person or persons)
and any changes to such contact information. All notices pursuant to the
preceding sentence shall be given in accordance with this Section 11.
12. WITHHOLDING. All compensation payable under this Agreement and/or the
Option shall be subject to customary withholding taxes and other employment
taxes as may be required with respect to compensation paid by a corporation (or
entity) to an employee and the amount of compensation payable hereunder shall be
reduced appropriately to reflect the amount of any required withholding. The
Company shall have no obligation to make any payments to Executive or to make
Executive whole for the amount of any required taxes.
13. SUCCESSORS. This Agreement shall be binding on, and inure to the
benefit of, the Company and its successors and assigns and any person acquiring,
whether by merger, reorganization, consolidation, by purchase of assets or
otherwise, all or substantially all of the assets of the Company.
14. NONALIENATION. The interests of Executive under this Agreement are not
subject to the claims of Executive's creditors, other than the Company, and may
not otherwise be voluntarily or involuntarily assigned, alienated or encumbered.
15. WAIVER OF BREACH. The waiver by the Company or Executive of a breach of
any provision of this Agreement shall not operate as or be deemed a waiver by
such party of any subsequent breach. Continuation of payments hereunder by the
Company following a breach by Executive of any provision of this Agreement shall
not preclude the Company from thereafter terminating said payments based upon
the same violation.
16. SEVERABILITY. It is mutually agreed and understood by the parties that
should any of the agreements and covenants contained herein be determined by any
court of competent jurisdiction to be invalid by virtue of being vague or
unreasonable, including but not limited to the provisions of Section 8, then the
parties hereto consent that this Agreement shall be amended retroactive to the
date of its execution to include the terms and conditions said court deems to be
reasonable and in conformity with the original intent of the parties and the
parties hereto consent that under such circumstances, said court shall have the
power and authority to
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determine what is reasonable and in conformity with the original intent of the
parties to the extent that said covenants and/or agreements are enforceable.
17. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of New York, without regard to conflict of law principles.
18. AMENDMENT. No provisions of this Agreement may be amended, modified, or
waived unless such amendment or modification is agreed to in writing signed by
Executive and by a duly authorized officer of the Company, and such waiver is
set forth in writing and signed by the party to be charged.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both of the
parties hereto.
20. SURVIVAL. The respective obligations of, and benefits afforded to,
Executive and Company as provided in Section 8 of this Agreement shall survive
the termination of this Agreement.
21. NO CONFLICT OF INTEREST. Except as specifically provided in this
Agreement, during the Employment Period, Executive shall not directly, or
indirectly render service, or undertake any employment or consulting agreement
with another entity without the express written consent of the Company.
22. REPRESENTATION. Executive represents and warrants to the Company and
Executive acknowledges that the Company has relied on such representations and
warranties in employing Executive, that neither Executive's duties as an
employee of the Company nor his performance of this Agreement will breach any
other agreement to which Executive is a party.
23. SECTION HEADINGS. The section headings in this Agreement are for
convenience of reference only, and they form no part of this Agreement and shall
not affect its interpretation.
24. OTHER AGREEMENTS. This Agreement constitutes the sole and complete
Agreement between or among the Company and Executive and supersedes all other
prior or contemporaneous agreements, both oral and written, between or among the
Company and Executive with respect to the matters contained herein including,
without limitation, any prior employment agreements and any severance agreements
or arrangements between or among the parties. No verbal or other statements,
inducements, or representations have been made to or relied upon by Executive.
The parties have read and understand this Agreement.
25. WAIVER OF CLAIM AGAINST COMPANY PURSUANT TO THE CHAPTER 11 FILING.
Executive agrees to waive any claim he may have relating to the Company's
rejection of Executive's executory contract(s) in the course of its Chapter 11
filing, if any. To the extent Executive has filed a proof of claim with the
bankruptcy court, Executive agrees to take affirmative steps to withdraw such
claim. In addition, Executive acknowledges
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and agrees that he waives his right to receive any benefits under the Company's
Interim Continuation of KERP Program or any other similar program of the
Company.
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IN WITNESS THEREOF, Executive has hereunto set Executive's hand, and
the Company has caused these presents to be executed in its name and on its
behalf, all as of the day and year first above written.
Horizon PCS, Inc.
By:
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Its:
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EXECUTIVE
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