HORIZON PCS, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
September 26, 2000 (the "Effective Date"), by and between Horizon PCS, Inc., a
Delaware corporation (the "Company"), and William A. McKell ("Executive").
1. DUTIES AND SCOPE OF EMPLOYMENT.
(a) POSITION; DUTIES. The Company shall employ the Executive as the
Chief Executive Officer and President of the Company reporting to the Board of
Directors of the Company. The Executive shall render business and professional
services in the performance of his duties which are consistent with Executive's
position within the Company, and, subject to the vote of the stockholders of the
Company, shall serve as a member of the Board of Directors of 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 Executive
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 $175,000 (the "Base Salary"). The Base
Salary may be increased in the discretion of the Board of Directors of the
Company, but shall not be decreased, each year on each anniversary date of the
Effective Date, 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.
1
(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. 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, 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.
(iii) OTHER TERMINATIONS. If Executive's employment is
terminated by the Company without Cause or by the Company or Executive
for any reason other than pursuant to Sections 4(c)(i) or 4(c)(ii)
hereof, 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
2
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"
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.
68 E. Main Street
Chillicothe, Ohio 45601
Attn: Chief Financial Officer
If to Executive: William A. McKell
P. O. Box 1869
Chillicothe, OH 45601-0480
3
or at the last residential address known by the Company.
8. RESTRICTIONS ON EMPLOYMENT.
(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.
(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.
(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 business of any customer, person, firm or entity for which
the Company provided 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,
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.
4
(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.
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.
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
5
"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.
(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.
6
(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.
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/ Pete Holland
---------------------------------
Title: CFO
---------------------------------
Date: 11/28/00
---------------------------------
/s/ William A. McKell
---------------------------------
William A. McKell
Date: 11-29-00
---------------------------------
7