Exhibit
10.11


 


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 Alan Morse (“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 “Employment
Period” shall be the period beginning as of the Effective Date and ending on December 31,
2005.  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 Operating Officer
of the Company.  During the Employment
Period, Executive shall report to Chief Executive Officer of the Company and/or
to 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 operating 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 ware consistent with Executive’s position as Chief Operating
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.


 


3.                                       COMPENSATION AND BENEFITS.


 


(a)                                  Annual Base Salary.  During the Employment Period, Executive shall
be compensated at an annual rate of $215,000 (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.


 


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(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 Company’s traditional bonus plan shall remain in effect for the 4th
quarter of 2004.  The Incentive Bonus
Plan for 2005 will be set by the Executive Committee and Executive will
participate to the same extent as the Company’s CEO and CFO.  Any such bonus earned during a fiscal year
shall be paid at such time as the Company customarily pays annual bonuses.  Should the Incentive Bonus Plan be amended to
include an annual component in addition to or in replacement of the current
quarterly bonus plan in whole or in part, and Executive’s employment is
terminated prior to the payment of an earned bonus for any reason other than by
the Company for Cause or by Executive without Good Reason, Executive shall be
paid any earned but unpaid quarterly bonus and/or a pro-rated portion of the
annual bonus at the time bonus payments are customarily paid.


 


(c)                                  Retention Bonus.  Executive shall be entitled to a retention
bonus equal to the amount of $161,250 (the “Retention Bonus”), which shall be
paid in a lump sum payment upon the earlier of (i) Executive’s termination
without Cause (as defined below), (ii) Executive’s termination for Good Reason
(as defined below) or (iii) Executive’s resignation for any reason after December 31,
2005.  Notwithstanding the foregoing, if
Executive provides the Company with a Notice of Termination (as defined below)
prior to December 31, 2005 and such termination is without Good Reason,
Executive shall not be paid the Retention Bonus whether or not his actual Date
of Termination occurs after December 31, 2005.


 


(d)                                 Stock Option.  On the Effective Date or as soon as
administratively feasible thereafter, the Company shall grant Executive stock
options in accordance with the Option Agreement attached hereto as Exhibit A.


 


(e)                                  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
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.


 


(f)                                    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.


 


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(g)                                 Perquisites.  During the Employment Period, Executive shall
be provided with 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 refusal 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.


 


(d)                                 Good Reason.  Executive may terminate his employment for “Good
Reason” by providing the Company thirty (30) 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


 


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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 not have Good Reason to terminate his employment under
clause (d)(iii) and only clause (d)(iii) if the
Company is acquired by or merged with, a Sprint PCS affiliate (excluding Sprint
FON Group in such affiliated group) and Executive reports to the chief
executive officer of the new entity and is the chief operating officer or has
another senior level transition responsibility for the acquired or merged entity
at the time of such acquisition or merger. 
If this Agreement should inure to the benefit of a successor or assignee
Company as provided in Section 13 below, for the purpose of determining
whether “Good Reason” can be claimed as provided in clause (d)(ii)
above, the Executive’s current office location shall not be deemed to have been
moved as a result of any change in the headquarters location of the Company or
its successors or assigns.


 


(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 thirty (30) 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 other reason, the date on which a Notice of Termination
becomes effective as provided for in Section 4 which shall not be later
than thirty (30) 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


 


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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(f) 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 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


 


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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)                                     Executive shall
receive a multiple of 1.5 of Executive’s Base Salary as in effect on June 30,
2003, payable in accordance with Section 3(a) for a period of eighteen
months from the Date of Termination 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 extent possible, through deduction of such
amounts from any post-termination payments owed to Executive pursuant to this
Agreement.


 


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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 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 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; (v) the provisions
of this Agreement are reasonable and necessary for the protection of the
business of the Company and its affiliates; and (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;  “Competitive Business” as used
in this Agreement shall mean a business offering wireless communication
services that operates a network and/or provides services to customers
primarily in the regional territory where the Company presently operates as of
the Effective Date.  “Competitive
Business” shall not include any business offering wireless communication
services nationally unless Executive’s responsibilities within such a business
are primarily directed toward the regional territory where the Company
presently operates as of the Effective Date. 
“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


 


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breach of 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 three (3) 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
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, 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 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, whether or
not during regular business hours, and created,


 


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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, 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, 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 may 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


 


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Association then in effect.  The decision of the arbitrator shall be final
and binding on both 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


 


11





















 


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 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 AND CHOICE OF LAW.  This
Agreement shall be construed in accordance with the laws of the State of Ohio,
without regard to conflict of law principles. 
In addition, any action brought under Section 8 of this Agreement
shall be filed in the United States District Court, Southern District of Ohio.


 


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.


 


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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 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:

  	
  /s/ William A. McKell

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Its: President & Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Alan G. Morse

  	
   

  
					



 


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