Exhibit
10.1.1


Execution Copy


 


NONQUALIFIED
STOCK OPTION AGREEMENT


UNDER THE
HORIZON PCS, INC.


2004 STOCK
INCENTIVE PLAN


 


This NONQUALIFIED STOCK OPTION AGREEMENT
(this “Agreement”), made as of this 21st day
of October, 2004, by and between Horizon PCS, Inc. (the “Company”)
and William A. McKell (the “Participant”)
who is an employee of the Company.


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, pursuant to the Company’s 2004 Stock
Incentive Plan (the “Plan”), the
Company desires to afford the Participant the opportunity to acquire, or
enlarge, his ownership of the Company’s common stock (“Stock”),
so that he may have a direct proprietary interest in the Company’s success.


 


NOW, THEREFORE, in consideration of the
covenants and agreements herein contained, the parties hereto hereby agree as
follows:


 


1.                                       Grant of Option.  Subject
to the term and conditions set forth herein and in the Plan, which is attached
hereto as Exhibit A, the Company hereby grants to the Participant, during the
period commencing on the date of this Agreement and ending on the close of
business on the day of the tenth anniversary of the date hereof (the “Expiration Date”),
the right and option (the “Option”) to purchase from the
Company, at a price of $17.76 per share (the “Option Price”), an aggregate of
197,340 shares of Stock (the “Option Shares”).


 


2.                                       Limitation on Exercise of Option.  Subject
to the terms and conditions set forth herein and in the Plan, the Option will
become vested and exercisable with respect to 16.67% of the shares subject to
the Option on the six (6) month anniversary of the date of grant and as to an
additional 16.67% on each six (6) month anniversary thereafter until the Option
is 100% vested; provided, that, the Participant is then employed
by the Company.  Notwithstanding the foregoing,
subject to the limitations of the Plan, the Committee may accelerate the
vesting and exercisability of all or part of the Option at any time and for any
reason.


 


3.                                       Termination of Employment.  Upon a
termination of employment, the Option shall remain exercisable as follows:


 


(a)                                  Upon termination of the Participant’s employment
by the Company without Cause or by the Participant for Good Reason (as such
terms are defined below), the Option, to the extent not fully vested, shall
become 100% vested and exercisable and the Participant may exercise the Option
until the earlier of the Expiration Date or the last day of the 90-day period
following such termination of employment (or 180 days if the Participant’s
employment is terminated by the Company without Cause or by the Participant for
Good Reason and such termination occurs concurrent with or within six (6)
months following a Change in Control (as defined in the Plan)), and the Option
shall thereafter terminate and cease to be exercisable.


 


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(b)                                 Upon termination of the Participant’s employment
with the Company for any other reason not otherwise specified in clause (a)
above, the unvested portion of the Option shall terminate and cease to be
exercisable and the Participant or his estate or legal beneficiaries in the
case of his death, as applicable, may exercise the vested portion of the
Option, but only to the extent the Option was exercisable immediately prior to
termination of employment, until the earlier of the Expiration Date or the last
day of the thirty (30) day period following termination of employment (or one
(1) year period in the event his termination of employment is as a result of
his death), and the Option shall thereafter terminate and cease to be
exercisable.


 


(c)                                  Participant acknowledges and agrees that the
continued vesting of the Option granted hereunder is premised upon his
provision of future services to the Company and the vesting of such Option
shall not accelerate upon his termination of employment for any reason unless
specifically provided for herein.


 


4.                                       Time and Method of Exercising Option.  The Option, to the extent vested, may be
exercised, in whole or in part, by giving written notice of exercise to the
Company specifying the number of whole shares of Stock to be purchased.  Such notice shall be accompanied by the
payment in full of the Option Price. 
Such payment shall be made either: (i) in cash at the time of purchase,
(ii) by tendering shares of Stock (either by actual delivery of shares or by
attestation) that are acceptable to the Committee and have been held by the
Participant for at least six months prior to the exercise, and were valued at
Fair Market Value as of the day the shares are tendered, (iii) in any combination
of cash, shares, or attested shares, as determined by the Committee in its sole
discretion or (iv) to the extent permitted by applicable law, Participant may
elect to pay the Option Price upon the exercise of an Option by irrevocably
authorizing a third party to sell shares of Stock (or a sufficient portion of
the shares) acquired upon exercise of the Option and remit to the Company a
sufficient portion of the sale proceeds to pay the entire Option Price and any
tax withholding resulting from such exercise.


 


5.                                       Issuance of Shares.  Except as otherwise provided in the Plan, and
subject to applicable law, as promptly as practical after receipt of such
written notification of exercise and full payment of the Option Price and any
required income tax withholding, the Company shall issue or transfer to the
Participant the number of Option Shares with respect to which Options have been
so exercised (less shares withheld in satisfaction of tax withholding
obligations, if any), and shall deliver to the Participant a certificate or
certificates therefore, registered in the Participant’s name.


 


6.                                       Non-Transferability.  The Option shall not be transferable by the
Participant other than by will or by the laws of descent and distribution, and
the Option shall be exercisable during the lifetime of the Participant only by
the Participant or his guardian or legal representative.  The terms of the Option shall be final,
binding and conclusive upon the beneficiaries, executors, administrators, heirs
and successors of the Participant.  Until
the Option has vested, shares subject to the Option shall not be sold,
transferred or otherwise disposed of, shall not be pledged or otherwise
hypothecated and shall not be subject to the claims of creditors.


 


7.                                       Adjustments.  Options may be adjusted or terminated in any
manner as contemplated by the Plan.


 


8.                                       Rights as Shareholder.  The Participant or a transferee of the
Options shall have


 


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no rights as a shareholder with respect to any Option Shares until he
shall have become the holder of record of such shares, and no adjustment shall
be made for dividends or distributions or other rights in respect of such
Option Shares for which the record date is prior to the date upon which he
shall become the holder of record thereof.


 


9.                                       Compliance with Law.  Notwithstanding any of the provisions hereof,
the Participant hereby agrees that he will not exercise the Option, and that
the Company will not be obligated to issue or transfer any shares to the Participant
hereunder, if the Committee determines, in its sole discretion, that the
exercise of the Option or the issuance or transfer of the Option Shares
constitutes a violation by the Participant or the Company of any provisions of
any law or regulation of any governmental authority.  Such determination by the Committee shall be
final, binding and conclusive.  The
Company shall in no event be obliged to register any securities pursuant to the
Securities Act of 1933 (as now in effect or as hereafter amended) or to take
any other action in order to cause the exercise of the Option or the issuance
or transfer of Option Shares pursuant thereto to comply with any law or
regulation of any governmental authority.


 


10.                                 Taxes.  At such time as the Participant recognizes
taxable income in connection with the receipt of shares or cash hereunder (a “Taxable Event”), the Participant shall pay to the Company
an amount equal to the minimum federal, state and local income taxes and other
amounts as may be required by law to be withheld by the Company in connection
with the Taxable Event (the “Withholding Taxes”)
prior to the issuance of such shares or the payment of such cash.  The Committee, in its discretion, and subject
to such requirements as the Committee may impose prior to the occurrence of
such withholding, may permit such withholding obligations to be satisfied
through cash payment by the Participant, through the surrender of shares of
Stock which the Participant already owns, or through the surrender of shares of
Stock to which the Participant is otherwise entitled under the Plan, but only
to the extent of the Withholding Taxes.


 


11.                                 Notice.  Every notice or other communication relating
to this Agreement shall be in writing, and shall be mailed to or delivered to
the party for whom it is intended at such address as may from time to time be
designated by it in a notice mailed or delivered to the other party as herein
provided; provided, that, unless and until some other address be
so designated, all notices or communications by the Participant to the Company
shall be mailed or delivered to the Company at its principal executive office,
and all notices or communications by the Company to the Participant may be
given to the Participant personally or may be mailed to him at his address as
recorded in the records of the Company. 
Notwithstanding the foregoing, at such time as the Company institutes a
policy for delivery of notice by e-mail, notice may be given in accordance with
such policy.


 


12.                                 Nonqualified
Stock Option.  The Option
granted hereunder is not intended to be an “incentive stock option” within the
meaning of Section 422 of the Code (“ISO”).


 


13.                                 Binding
Effect.  Subject to Section 6
hereof, this Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.


 


14.                                 No Right
to Continued Employment. 
Nothing in this Agreement or in the Plan shall confer upon the
Participant any right to continue in the service of the Company or shall


 


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interfere with or restrict in any way the rights of the Company, which
are hereby expressly reserved, to terminate the services of or discharge the
Participant at any time for any reason whatsoever.


 


15.                                 Governing
Law.  Except to the extent
governed by the Delaware General Corporation Law, this Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Ohio without regard to its conflict of law principles.


 


16.                                 Plan.  The terms and provisions of the Plan are
incorporated herein by reference, and the Participant hereby acknowledges
receiving a copy of the Plan.  In the
event of a conflict or inconsistency between the terms and provisions of the
Plan and the provisions of this Agreement, the Plan shall govern and
control.  All capitalized terms not
defined herein shall have the meaning ascribed to them as set forth in the
Plan.


 


17.                                 Successors
and Assigns.  The Company
may assign any of its rights under this Agreement.  This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the Company.  Subject to the restrictions on transfer set
forth herein, this Agreement shall be binding upon the Participant and the
Participant’s heirs, executors, administrators, and legal representatives.


 


18.                                 Gender
and Number.  The masculine
pronoun shall be deemed to include the feminine, and words in the singular
shall be deemed to include the plural and the plural shall be deemed to include
the singular, unless a different meaning is plainly required by the context.


 


19.                                 Definitions.


 


(a)                                  The term “Company”
as used in this Agreement with reference to employment shall include
the Company and its Subsidiaries, as appropriate.


 


(b)                                 Whenever the word “Participant” is used in any provision of this Agreement under
circumstances where the provision should logically be construed to apply to the
beneficiaries, the executors, the administrators, or the person or persons to
whom the Options may be transferred by will or by the laws of descent and distribution,
the word “Participant” shall be
deemed to include such person or persons.


 


(c)                                  The term “Cause”
means (i) Participant’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) Participant’s
dishonesty in communications to the Company’s Board of Directors (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 Participant’s material
employment duties; (iii) Participant’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)
Participant’s willful failure to perform Participant’s employment duties in any
material respect (other than as a result of Participant’s short term disability
or medical emergency involving a member of Participant’s immediate family, or
as the result of any Company approved leave).


 


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(d)                                 The term “Good
Reason” means (i) any reduction in Participant’s annual base salary
or target incentive bonus opportunity; (ii) any requirement by the Company that
Participant’s services be rendered primarily at a location or locations other
than within 35 miles of Participant’s current office location for other than a
de minimis period of time, without Participant’s prior written consent; provided,
that, Participant 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 Participant’s responsibilities
unless such alteration is remedied within thirty days following written
notification by Participant to the Company of the alleged material adverse
alteration.  Participant shall have Good
Reason to terminate his employment under this clause if the Company is acquired
by, or merged with, a Sprint PCS affiliate (excluding Sprint FON Group in such
affiliated group) and Participant is not appointed the chief executive officer
of the acquired or merged entity at the time of such acquisition or merger.


 


[Signature Page Follows]


 


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


 


 


	
   

  	
  HORIZON PCS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/
  Peter Holland

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Peter Holland

  
	
   

  	
   

  	
  Title: 

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ William A. McKell

  	
   

  
						



 


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