EXHIBIT 10.47
HORIZON PCS, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of March 1,
2002 (the "Effective Date"), by and between Horizon PCS, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxx ("Executive").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITION; DUTIES. The Company shall employ the Executive as the
Chief Operating Officer of the Company reporting to the Chief Executive Officer
and to the Board of Directors of the Company. The Executive shall have general
management responsibility for network operations, marketing and sales activities
and shall render business and professional services in the performance of his
duties which are consistent with Executive's position with the Company.
(b) OBLIGATIONS. Executive shall devote his full business efforts and
time to the Company and agrees not to actively engage in any other employment,
occupation or consulting activity without the prior approval of the Board of
Directors of the Company. Executive represents and warrants that the performance
of his duties under this Agreement will not conflict or create a breach of any
other agreements or duties by which Executive is obligated or bound.
2. EXECUTIVE BENEFITS. Executive shall be eligible for (i) all benefit
plans and policies currently and hereafter maintained by the Company for its
executive officers, subject to the terms and conditions of such plans and
policies and (ii) such other benefits as are set forth in this Agreement.
3. AT-WILL EMPLOYMENT. Executive and the Company understand and acknowledge
that Executive's employment with the Company constitutes "at-will" employment.
Executive and the Company acknowledge that this employment relationship may be
terminated at any time, upon four (4) weeks prior written notice to the other
party, with or without cause or for any or no cause, at the option either of the
Company or Executive, subject to the termination provisions set forth in
Paragraphs 4(c) and 4(d) below.
4. COMPENSATION.
(a) BASE SALARY. While employed by the Company pursuant to this
Agreement, the Company shall pay the Executive as compensation for his services
a base salary at the annualized rate of $180,000 (the "Base Salary"). On an
annual basis, the Base Salary may be increased in the discretion of the Board of
Directors of the Company, but shall not be decreased (without Executive's
consent) for so long as this Agreement remains in effect. Such salary shall be
paid periodically in accordance with the normal payroll practices of the Company
and subject to the usual, required withholding.
(b) BONUSES. In addition to Executive's Base Salary, Executive shall
be eligible to receive an annual bonus (the "Bonus"), equal to a maximum of
forty percent (40%) of Executive's Base Salary then in effect, as determined in
the discretion of the Board. The Bonus shall be payable in accordance with the
Company's normal practices and policies. The Executive and the Board each year
may establish specific guidelines for the Bonus.
(c) TERMINATION OF EMPLOYMENT.
(i) DISCHARGE FOR CAUSE. The Company may discharge the Executive
for cause ("Cause") at any time, without providing the notice set forth in
Paragraph 3 above. Upon the occurrence of such discharge for Cause, this
Agreement shall terminate except that the restrictions and provisions imposed on
the Executive under Sections 8 and 9 below shall continue, and Executive shall
be entitled to receive all previously earned and accrued but unpaid Base Salary
and benefits up to the date of termination, but shall not be entitled to any
further Base Salary, benefits or any severance compensation of any kind. For
purpose of this Agreement, the term "Cause" shall mean (i) conduct by the
Executive that amounts to fraud, gross dishonesty, gross negligence or willful
misconduct in the performance of his duties hereunder; or (ii) continuous and
material failure by the Executive to perform his duties hereunder in the manner
and to the extent required under this Agreement and failure to cure such failure
within 30 days after receipt of written notice from the Board of Directors; or
(iii) material breach by the Executive of the obligation to refrain from
engaging in the activities prohibited by the restrictive covenants set forth in
Section 8 hereof; or (iv) final conviction of a felonious crime; or (v) repeated
instances of drug or alcohol abuse.
(ii) VOLUNTARY RESIGNATION, DEATH OR DISABILITY. If Executive's
employment is terminated as a result of his voluntary resignation (other than
for "Good Reason", as defined below), his death or Disability, the Company shall
pay or cause to be paid to Executive or his estate, as applicable, all
previously earned and accrued but unpaid Base Salary and benefits up to the date
of termination, but neither Executive nor his estate shall be entitled to any
further Base Salary, benefits or any severance compensation of any kind.
"Disability" means Executive is unable to perform, by reason of physical or
mental incapacity, his duties or obligations under this Agreement, for a period
of one hundred twenty (120) consecutive days or a total period of two hundred
ten (210) days in any three hundred sixty (360) day period. "Good Reason" means
(i) a reduction in Executive's Base Salary, (ii) the Company's requiring
Executive to be based at any office or location other than within 100 miles of
the state capitol building located in Columbus, Ohio or (iii) a material adverse
alteration in the nature or status of Executive's responsibilities, unless such
alteration is remedied within thirty days following written notification by
Executive to the Company that he intends to terminate his employment hereunder
(provided that the parties acknowledge that, if the Company merges or otherwise
combines with another larger company, the mere change in the nature or status of
Executive's responsibilities alone may not constitute such a material adverse
alteration).
(iii) OTHER TERMINATIONS. If Executive's employment is terminated
by the Company without Cause, or by the Company for any other reason other than
pursuant to Sections 4(c)(i) or 4(c)(ii) hereof, or by Executive for "Good
Reason", Executive shall be entitled to receive 24 months Base Salary (at the
rate in effect on the date of termination), payable over the 24 months following
such termination, in accordance with the Company's regular payroll procedures.
In addition, notwithstanding the terms of the Incentive Stock Option Agreement
between Executive and the Company, upon such an employment termination, all
Company stock options held by Executive which had not vested as of the date of
such employment termination shall fully vest and become exercisable as of the
date of termination, and Executive shall continue to be eligible, for 24 months
after such a termination, to participate in the health and dental benefit plans
in which he was entitled to participate immediately prior to termination of
Executive's employment. 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 this Section 4(c)(iii), nor shall the amount of any payment
hereunder be reduced by any compensation earned by Executive as a result of
employment by another employer.
(d) GENERAL. Except as specified in Paragraph 4(c) or as
required under the terms of any Stock Option and any other applicable benefit
program, Executive shall be entitled to no additional compensation or benefits
following termination of his employment. As a condition to any payments pursuant
to Paragraph 4(c), Executive shall execute and deliver a binding written release
from Executive, in form satisfactory to the Company, releasing any and all
claims of any kind or nature relating to the employment relationship (including
claims for wrongful termination or discrimination of any kind) that Executive
may have against the Company and/or its officers, agents, employees, directors
and shareholders.
5. EXPENSES. The Company will pay or reimburse Executive for reasonable
travel, entertainment or other expenses reasonably incurred by Executive in the
furtherance of or in connection with the performance of Executive's duties
hereunder, in accordance with the Company's established policies.
6. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death or incapacity and (b) any successor or assign of the Company.
Any such successor of the Company shall be deemed substituted for the Company
under the terms of this Agreement for all purposes. As used herein, "successor"
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shall include any person, firm, corporation or other business entity which at
any time, whether by purchase, merger or otherwise, directly or indirectly
acquires or succeeds to all or substantially all of the assets or business of
the Company. None of the rights of Executive to receive any form of compensation
payable pursuant to this Agreement shall be assignable or transferable except
through a testamentary disposition or by the laws of descent and distribution
upon the death of Executive. Any attempted assignment, transfer, conveyance or
other disposition (other than as aforesaid) of any interest in the rights of
Executive to receive any form of compensation hereunder shall be null and void.
7. NOTICES. All notices, requests, demands and other communications called
for hereunder shall be in writing and shall be deemed given if delivered
personally or three (3) days after being mailed by registered or certified mail,
return receipt requested, prepaid and addressed to the parties or their
successors in interest at the following addresses, or at such other addresses as
the parties may designate by written notice in the manner aforesaid:
If to the Company: Horizon Personal Communications, Inc.
00 X. Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
Attn: Chief Financial Officer
If to Executive: Xxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
or at the last residential address known by the Company.
8. COVENANTS.
(a) COVENANT NOT TO COMPETE (the "Covenant Not to Compete"). During
Executive's employment with the Company and for a period of twelve months after
Executive's employment has terminated, Executive shall not, without the
Company's prior written consent, directly or indirectly, within the Restricted
Territory, for himself or on behalf of or in conjunction with others, engage in
the Restricted Business in the same or similar capacity as Executive has been
employed by the Company; provided that employment by a national provider of
wireless telecommunications services shall not be a violation of this Section so
long as 80% or more of the licensed POPs of the provider in the service
territory in which the Employee works or has responsibility are outside the
Restricted Territory.
(b) RESTRICTED BUSINESS. "Restricted Business" means the business of
providing wireless telecommunications services.
(c) RESTRICTED TERRITORY. "Restricted Territory" means all territories
covered by the Sprint PCS Management Agreements, currently in place between the
Company and one or more of its subsidiaries, on one hand, and Sprint PCS and its
Affiliates, on the other hand. For purposes of this Agreement, the term
"Affiliates" means an entity which controls, is controlled by, or is under
common control with, another entity.
(d) NON-SOLICITATION. During Executive's employment with the Company
and for a period of twelve months thereafter, Executive shall, not directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
firm or entity, within the Restricted Territory, initiate any action to solicit
in competition with the Restricted Business or to divert or attempt to divert
from the Company the wireless telecommunication services business of any
customer, person, firm or entity for which the Company provided wireless
telecommunications services in connection with the Restricted Business at any
time during the period of twelve months immediately preceding the time of such
solicitation, diversion or attempt to divert and with whom Executive had
material contact in the course of Executive's employment with the Company.
(e) NON-RECRUITMENT. During Executive's employment with the Company
and for a period of twelve months thereafter, Executive shall not, directly or
indirectly, for himself or behalf of or in conjunction with any other person,
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firm or entity, initiate any action to hire for any other employer, any employee
of the Company or directly or indirectly cause any employee of the Company to
leave employment in order to work for another.
(f) GENERAL. Executive acknowledges that the Company has conducted and
expects to conduct its business throughout the Restricted Territory and that the
Company expects that during the aforesaid period, the Company will continue to
expand its business throughout the Restricted Territory and that this
expectation is realistic; that Executive shall be engaged in and responsible for
the Company's business in his executive capacity with respect to the Company's
activities throughout the Restricted Territory; and that because of Executive's
association with the Company, the Company's business would be seriously and
irreparably harmed if Executive were to compete with the Company in the manner
prohibited above. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any actual or threatened breach of the
provisions of this Section 8 and that, in addition to any other remedies
available under applicable law, any party may in its sole discretion apply to
any court of law or equity of competent jurisdiction (without posting any bond
or deposit) for specific performance and/or other injunctive relief in order to
enforce or prevent any violations of the provisions of this Section 8.
(g) SEVERABILITY. The covenants and restrictions set forth in this
Section 8 are intended to conform to applicable law. If, however, a court
determines that any aspect of any covenant or restriction exceeds what is
permitted or enforceable by law, then such covenant or restriction shall be
limited or otherwise reformed as necessary to comply with and be enforceable
under applicable law. If a court determines that any provision of this Section 8
is unenforceable and cannot be reformed, then such provision shall be deemed
eliminated from this Section to the minimum extent necessary to permit the
remaining provisions of this Section to be enforced.
(h) The parties acknowledge that none of the covenants herein prohibit
Executive from engaging in his profession or from providing a standard of living
for himself and those dependent upon him in the manner to which he and they have
become accustomed.
9. CONFIDENTIAL INFORMATION. During the period of two (2) years after
Executive's employment has terminated for any reason whatsoever (or, in the case
of trade secrets, for so long as the information in question remains a trade
secret) and during any period Executive is employed by the Company, Executive
shall not, without the prior written consent of the Company, directly or
indirectly, divulge, disclose or publish to any person or entity, or reproduce
or use in any way, except only as required for the benefit of the Company, any
Confidential Information (as defined herein). Upon the Company's request and, in
any event, upon the termination of Executive's employment with the Company for
any reason whatsoever, Executive shall immediately return any reproductions of
Confidential Information to the Company. For purposes of this Agreement,
"Confidential Information" means any trade secrets and any information relating
to the Company's business that is competitively sensitive and not generally
known by the public, including processes, policies, procedures, techniques,
designs, drawings, know-how, show-how, technical information, technology,
specifications, products, computer programs (including computer programs
developed, improved or modified by Executive for or on behalf of the Company for
use in the Company's business), algorithms, systems, methods of operation, order
entry forms, price lists, customer lists, customer information, solicitation
leads, marketing research data, marketing and advertising materials and methods
and manuals and forms, all of which pertain to the Company's business.
Confidential Information does not include any information which (i) is available
in published print or otherwise known to the public, unless published or made
known as a result of acts or omissions of Executive, or (ii) is lawfully
obtained by Executive in writing from a third party who did not acquire such
confidential information or trade secret, directly or indirectly, from Executive
or the Company.
10. ENTIRE AGREEMENT. This Agreement represents the entire agreement and
understanding between the Company and Executive concerning Executive's
employment relationship with the Company, and supersedes and replaces any and
all prior agreements and understandings concerning Executive's employment
relationship with the Company.
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11. ARBITRATION AND EQUITABLE RELIEF.
(a) To the extent permitted by applicable law, Executive agrees that
any dispute or controversy arising out of, relating to, or in connection with
this Agreement, or the interpretation, validity, construction, performance,
breach, or termination thereof shall be settled by arbitration to be held in
Columbus, Ohio, in accordance with the National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association (the
"Rules"). The arbitrator may grant injunctions or other relief in such dispute
or controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court having jurisdiction. In addition, a party may
seek an injunction through a court of competent jurisdiction.
(b) The arbitrator shall apply Ohio law to the merits of any dispute
or claim, without reference to rules of conflict of law. The arbitration
proceedings shall be governed by federal arbitration law and by the Rules,
without reference to state arbitration law. Executive hereby expressly consents
to the personal jurisdiction of the state and federal courts located in Ohio for
any action or proceeding arising from or relating to this Agreement and/or
relating to any arbitration in which the parties are participants.
(c) Executive understands that nothing in this Section 11 modifies
Executive's at-will status. Either the Company or Executive can terminate the
employment relationship on four (4) weeks written notice, with or without cause,
subject to the termination provisions in Section 4 above.
(d) EXECUTIVE UNDERSTANDS THAT BY SIGNING THIS AGREEMENT, EXECUTIVE
AGREES TO SUBMIT ANY FUTURE CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH, OR TERMINATION THEREOF TO BINDING ARBITRATION, AND THAT THIS ARBITRATION
CLAUSE CONSTITUTES A WAIVER OF EXECUTIVE'S RIGHT TO A JURY TRIAL AND RELATES TO
THE RESOLUTION OF ALL DISPUTES RELATING TO ALL ASPECTS OF THE EMPLOYER/EXECUTIVE
RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, THE FOLLOWING CLAIMS:
(i) ANY AND ALL CLAIMS FOR WRONGFUL DISCHARGE OF EMPLOYMENT;
BREACH OF CONTRACT, BOTH EXPRESS AND IMPLIED; BREACH OF THE COVENANT
OF GOOD FAITH AND FAIR DEALING, BOTH EXPRESS AND IMPLIED; NEGLIGENT OR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; NEGLIGENT OR INTENTIONAL
MISREPRESENTATION; NEGLIGENT OR INTENTIONAL INTERFERENCE WITH CONTRACT
OR PROSPECTIVE ECONOMIC ADVANTAGE; AND DEFAMATION.
(ii) ANY AND ALL CLAIMS FOR VIOLATION OF ANY FEDERAL STATE OR
MUNICIPAL STATUTE, INCLUDING, BUT NOT LIMITED TO, TITLE VII OF THE
CIVIL RIGHTS ACT OF 1964, THE CIVIL RIGHTS ACT OF 1991, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE AMERICANS WITH
DISABILITIES ACT OF 1990, AND THE FAIR LABOR STANDARDS ACT.
(iii) ANY AND ALL CLAIMS ARISING OUT OF ANY OTHER LAWS AND
REGULATIONS RELATING TO EMPLOYMENT OR EMPLOYMENT DISCRIMINATION.
(e) Notwithstanding any provision herein to the contrary, this Section
11 shall not apply to any dispute or controversy arising under Section 8 or the
interpretation, validity, construction, performance, breach or termination
thereof.
(f) The parties hereby consent to this arbitration provision by
providing their initials herein:
________ Executive Initials
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________ Company Signatory's Initials
12. SEVERABILITY. In the event that any provision hereof becomes or is
declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision.
13. NO ORAL MODIFICATION, CANCELLATION OR DISCHARGE. This Agreement may
only be amended, canceled or discharged in writing signed by Executive and the
Company.
14. WITHHOLDING. The Company shall be entitled to withhold, or cause to be
withheld, from payment any amount of withholding taxes required by law with
respect to payments made to Executive in connection with his employment
hereunder.
15. GOVERNING LAW. This Agreement shall be governed by the internal laws of
the State of Ohio.
16. ACKNOWLEDGMENT. Executive acknowledges that he has had the opportunity
to discuss this matter with and obtain advice from his private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
respective dates set forth below.
HORIZON PCS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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Date: May 20, 2002
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/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Date: May 20, 2002
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