exv10w22






Exhibit 10.22




AMENDED AND RESTATED EMPLOYMENT AGREEMENT




This
Amended and Restated Employment Agreement, dated as of October 30, 2008 (the “Agreement”) is
made by and between USA Mobility, Inc., a Delaware corporation (the “Company”) and Vincent D. Kelly
(the “Executive”).



WHEREAS, the Company and Executive are parties to that certain Employment Agreement dated November
16, 2004, and amended as of October 30, 2007, pursuant to which the Executive has been employed as
the Chief Executive Officer and President of the Company (the “Original Employment Agreement”); and



WHEREAS, the Company and the Executive desire to amend and restate in full the Executive’s Original
Employment Agreement with the Company and, in order to do so, enter into this Agreement.



NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements set forth in
this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:




	1.	 	Employment. The Company shall employ the Executive as the Chief Executive Officer and
President of the Company based upon the terms and conditions set forth in this Agreement, for
the period of time specified in Section 3. In such positions, the Executive shall report
directly and exclusively to the Board of Directors of the Company (the “Board”).
	 
	2.	 	Duties and Authority. During the term of this Agreement, as the Chief Executive
Officer and President of the Company, under the direction and subject to the control of the
Board (which direction shall be such as is customarily exercised over a chief executive
officer of a public company), the Executive shall be responsible for the business, affairs,
properties and operations of the Company, and shall have general executive charge, management
and control of the Company, with all such powers and authority with respect to such business,
affairs, properties, and operations as may be reasonably incident to such duties and
responsibilities, and shall perform such other duties for the Company as the Board may
determine from time to time. The Executive shall devote the Executive’s reasonable best
efforts and full business time, energies and talents to the performance of the Executive’s
duties and the advancement of the business and affairs of the Company.
	 
	3.	 	Term. The term of this Agreement and the period of employment of the Executive by the
Company hereunder (the “Agreement Term”) shall commence on November 16, 2008 (the “Effective
Date”) and shall end on December 31, 2012 (the “Expiration Date”), unless earlier terminated
pursuant to Section 7 herein. Provided that the Executive remains employed by the Company, as
of the Expiration Date the Executive (i) shall become an employee “at will,” and (ii) provided
he remains employed with the Company after the Expiration Date as its Chief Executive Officer
and President or a person reporting directly to such officer, shall be entitled on a most
favored nations basis to any and all such benefits and other perquisites as are then available
to any person(s) then reporting directly to the Chief Executive Officer, including any change
of control plans, agreements or programs as well as any severance plans,




 









 






	 	 	agreements or programs, on terms and
conditions as to each such perquisite and/or benefit no less favorable to the Executive than
those used for the applicable person.






	4.	 	Compensation and Expenses.
	 
	(a)	 	Base Salary. In consideration for the Executive’s services and subject to the terms
and conditions of this Agreement, the Company shall pay to the Executive an annual base salary
(the “Base Salary”) equal to Six Hundred Thousand Dollars ($600,000), commencing as of the
Effective Date. The Base Salary shall be payable biweekly or in such other installments as
shall be consistent with the Company’s payroll procedures. The Company shall deduct and
withhold all necessary social security and withholding taxes and any other similar sums
required by law or authorized by the Executive with respect to the payment of the Base Salary.
The Board shall review the Base Salary annually before December 31 and may, in its discretion,
increase, but not decrease, his Base Salary in any renewal, extension or replacement of this
Agreement. The Board shall also review the appropriateness of creating additional forms of
nonqualified executive compensation to cover the Executive.
	 
	(b)	 	Annual Bonus. The Executive shall be eligible for a target annual bonus equal to 200%
of Base Salary based on achievement of certain bonus targets set by the Board or a committee
thereof (the “Annual Bonus”); provided that the Executive is employed by the Company on
December 31 of the applicable calendar year and Executive has not voluntarily terminated his
employment in the Company pursuant to Section 8(d) herein prior to the date such Annual Bonus
is payable hereunder. Each Annual Bonus shall be paid upon completion of the annual audit of
the Company’s financial statements for the applicable annual year or sooner if the
Compensation Committee (“Compensation Committee”) of the Company’s Board of Directors so
agrees, but in any event no later than March 15 of the next following year. The Annual Bonus
for calendar year 2008 shall be payable in cash. Further, provided that the Company’s stock
is publicly traded on a national securities exchange on the date an Annual Bonus is actually
paid, such Annual Bonus for calendar years 2009 through 2012 shall be payable one-half in cash
and one-half in unrestricted stock of USA Mobility, unless the Compensation Committee and the
Executive mutually agree otherwise. The criteria for determining the amount of any Annual
Bonus and the bases upon which such Annual Bonus shall be payable shall be no less favorable
to the Executive than those used for other senior executives of the Company, such criteria and
bases to be determined in the sole discretion of the Board (or Compensation Committee, as
applicable).
	 
	(c)	 	Benefits. To the maximum extent permitted by applicable state and federal law, the
Executive shall be eligible, at no cost to the Executive, to participate in all of the
Company’s benefit plans, including fringe benefits available to the Company’s senior
executives, as such plans or programs are in effect from time to time, and use of an
automobile. Further, simultaneously with its execution of this Agreement, the Company shall
execute and deliver to the Executive for counter-signature the Indemnification Agreement
attached hereto as Exhibit A.




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	(d)	 	Holidays and Vacation. The Executive shall be entitled to (i) time off for all public
holidays observed by the Company and (ii) vacation days in accordance with the applicable
policies for the Company’s senior executives as in effect from time to time.
	 
	(e)	 	Reimbursement of Expenses. The Company shall reimburse the Executive for all
reasonable expenses the Executive incurs in accordance with the reasonable policies and
procedures adopted from time to time by the Company.
	 
	5.	 	Confidential Information.
	 
	(a)	 	“Confidential Information” means any and all Company and Company subsidiary proprietary
information, technical data, patent applications, inventions or discoveries (whether
patentable or not), know-how and trade secrets, as well as operating, design and manufacturing
procedures disclosed to the Executive, including before the date of this Agreement.
“Confidential Information” further means, without limitation, research, product development
activities, processes, products, specifications, designs, diagrams, illustrations, programs,
concepts, ideas, marketing plans, proposals, financial information, confidential reports,
communications and customer lists and data, as well as the nature and results of the Company’s
and its subsidiaries’ research and development activities, and all other materials and
information related to the business or activities of the Company and its subsidiaries that are
not generally known to the public; provided, however, that the term “Confidential Information”
excludes information that (i) is or becomes generally available to the public other than
through acts by the Executive in violation of this Agreement, (ii) was legally within the
Executive’s possession prior to disclosure to the Executive by or on behalf of the Company or
its predecessor, which prior possession can be evidenced by the Executive’s written records in
existence prior to the effective date of any Prior Employment Document (as defined in Section
10 below), or (iii) becomes available to the Executive on a non-confidential basis from a
source other than the Company or a subsidiary or predecessor of the Company, provided that
such source is not bound by a confidentiality agreement with the Company or any of its
subsidiaries, or by any other contractual, legal or fiduciary obligation of confidentiality to
the Company or any of its subsidiaries, or any other party with respect to such information.
	 
	(b)	 	Except as may be required by the lawful order of a court or agency of competent jurisdiction,
the Executive covenants and agrees that, during the Agreement Term and at all times
thereafter, the Executive will keep secret and confidential all Confidential Information, and
will not at any time, without the prior written consent of the Board or a person authorized by
the Board, publish or disclose any Confidential Information, either directly or indirectly, to
any third party, use for the Executive’s own benefit or advantage, or make available for
others to use (except to third parties in connection with possible transactions or business
with the Company).
	 
	(c)	 	To the extent that any court or agency seeks to have the Executive disclose Confidential
Information, the Executive shall promptly inform the Company, and shall take all reasonable
steps necessary to prevent disclosure of any Confidential Information until the Company has
been informed of such requested disclosure, and the Company has an 




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	 	 	opportunity to respond to such court or agency. To the extent that the Executive obtains
information on behalf of the Company or any of its subsidiaries that may be subject to
attorney-client privilege as to the Company’s attorneys, the Executive shall take reasonable
steps necessary to maintain the confidentiality of such information and to preserve such
privilege.
	 
	(d)	 	The Executive acknowledges that the restrictions contained in Section 5(b) and 5(c) are
reasonable and necessary, in view of the nature of the Company’s business, in order to protect
the legitimate interests of the Company, and that any violation thereof would result in
irreparable injury to the Company. Therefore, the Executive agrees that in the event of a
breach or threatened breach by the Executive of the provisions of Section 5(b) and (c), the
Company shall be entitled to obtain from any court of competent jurisdiction, preliminary or
permanent injunctive relief restraining the Executive from disclosing or using any such
Confidential Information. The Executive also acknowledges that nothing in this Section 5 shall
be construed as limiting the Executive’s duty of loyalty to the Company, or any other duty he
may otherwise have to the Company, while he is employed by the Company.
	 
	6.	 	Covenant Not to Compete. The Executive agrees that, through his position as Chief
Executive Officer and President of the Company and the various other positions with the
Company that he has held from time to time, the Executive has established and will continue to
establish valuable and recognized expertise in the paging business and has had and will have
access to the Company’s Confidential Information. The Executive hereby enters into a covenant
restricting the Executive from soliciting employees of the Company and its subsidiaries and
from competing against the Company upon the terms and conditions described below:
	 
	(a)	 	During the Executive’s employment and for a period of two (2) years after the Date of
Termination (as defined in Section 7(d) below) for any reason, the Executive shall not:






	 	(i)	 	induce or attempt to induce any person who, as of the Date of the Termination,
is an employee of the Company or of any of its subsidiaries to terminate his or her
employment, or refrain from renewing or extending such employment, with the Company or
such subsidiary in order to become an director, officer, employee, consultant or
independent contractor to or for any other individual or entity other than the Company
or its subsidiaries;
	 
	 	(ii)	 	in any state or other jurisdiction in the United States in which, as of the
Date of Termination, the Company is engaged in Business (as defined herein) or has
developed plans to engage in Business: (1) engage or be a part of any Person (including
as a director, consultant, employee, agent, or representative), or have any direct or
indirect financial interest (whether as a partner, shareholder, or owner (other than
ownership of 1% or less of the outstanding stock of any corporation listed on a
national stock exchange)) in any Person that engages in the business of owning and
operating narrowband one-way paging and wireless messaging networks, voice mail
services or data transmitting services (the




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	 	 	 	“Business”); or (2) participate as an employee or officer in any enterprise in which
the Executive’s responsibility relates to the Business;
	 
	 	(iii)	 	directly or indirectly own an equity interest in any Competitor (other than
ownership of 1% or less of the outstanding stock of any corporation listed on a
national stock exchange). The term “Competitor” means any Person a portion of the
business of which (and during any period in which it intends to enter into business
activities that would be) is materially competitive in any way with the Business of the
Company; or
	 
	 	(iv)	 	solicit or cause or encourage any person to solicit any Business in competition
with the Company or a subsidiary from any Person who as of the Date of Termination is,
or at any time during the 1-year period prior to the Date of Termination was, a client
of the Company or of a subsidiary during the Executive’s employment hereunder.






	(b)	 	The Executive agrees that the restrictions set forth in this Section 6 are reasonable,
proper, and necessitated by legitimate business interests of the Company and do not constitute
an unlawful or unreasonable restraint upon the Executive’ ability to earn a livelihood. The
parties agree that in the event any of the restrictions in this Agreement, interpreted in
accordance with the Agreement as a whole, are found to be unreasonable a court of competent
jurisdiction, such court shall determine the limits allowable by law and shall enforce the
same. The parties further agree that nothing in this Section 6 shall be construed as limiting
the Executive’s duty of loyalty to the Company, or any other duty he may otherwise have to the
Company, while he is employed by the Company.
	 
	(c)	 	The Executive further acknowledges that it may be impossible to assess the monetary damages
incurred by the Executive’s violation of this Agreement, and that violation of this Agreement
will cause irreparable injury to the Company. Accordingly, the Executive agrees that the
Company will be entitled, in addition to all other rights and remedies that may be available,
to an injunction enjoining and restraining the Executive and any other involved party from
committing a violation of this Agreement.






	7.	 	Termination. Notwithstanding any other provision of this Agreement, this Agreement
(and, thereby, the Executive’s employment with the Company) shall terminate upon the death of
the Executive, or it may be terminated with thirty (30) days’ written notice as follows:






	(a)	 	The Company may terminate this Agreement (and, thereby, the Executive’s employment with the
Company):






	 	(i)	 	at any time if the Executive is Disabled (as defined below) for a period of six
(6) months or more;
	 
	 	(ii)	 	at any time with “Cause.” For purposes of this Agreement. “Cause” means (A)
dishonesty of a material nature that relates to the performance of services under this
Agreement; (B) criminal conduct (other than minor infractions and traffic violations)
that relates to the performance of services under this Agreement, (C)




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	 	 	 	the Executive’s willfully breaching or failing to perform his duties as described in
Section 2 hereof (other than any such failure resulting from the Executive’s being
Disabled), within a reasonable period of time after a written demand for substantial
performance is delivered to the Executive by the Board, which demand specifically
identifies the manner in which the Board believes that the Executive has not
substantially performed his duties; or (D) the willful engaging by the Executive in
conduct that is demonstrably and materially injurious to the Company, monetarily or
otherwise. No act or failure to act on the Executive’s part shall be deemed
“willful” unless done, or omitted to be done, by the Executive not in good faith and
without reasonable belief that such action or omission was in the best interests of
the Company. Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered to
the Executive a resolution duly adopted by a majority of the members of the
Company’s Board of Directors with no less than the affirmative vote of all Directors
who are not also serving as officers or employees of the Company, at a meeting of
the Board called and held for such purpose (after reasonable notice to the Executive
and an opportunity for the Executive, together with the Executive’s counsel, to be
heard before the Board), finding that in the good faith judgment of the Board, the
Executive has engaged in the conduct set forth in this paragraph and specifying the
particulars thereof in detail; or
	 
	 	(iii)	 	at any time without Cause upon Notice from the Company to the Executive, which
Notice shall be effective immediately or such later time as is specified in such
Notice.






	(b)	 	The Executive may terminate this Agreement (and, thereby, his employment with the Company) at
any time upon sixty (60) days’ Notice to the Company.
	 
	(c)	 	This Agreement may be terminated (and, thereby, the Executive’s employment with the Company)
at any time by the mutual agreement of the parties. Any termination of the Executive’s
employment by mutual agreement of the parties shall be memorialized by a written agreement
signed by the Executive and duly-appointed officers of the Company.
	 
	(d)	 	Any purported termination of the Executive’s employment by the Company or by the Executive
shall be communicated by written Notice of Termination to the other party hereto in accordance
with Section 12. For purposes of this Agreement, a “Notice of Termination” shall mean a
notice that shall indicate the Date of Termination (which shall not be earlier than the date
on which such Notice is sent), and the specific provision of this Agreement relied upon and
that shall set forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive’s employment. The “Date of Termination” means the last
day the Executive is employed by the Company hereunder (including any successor to the Company
as determined in accordance with Section 15). If the Executive becomes employed by the entity
into which the Company is merged, or the purchaser of substantially all of the assets of the
Company, or a successor to such entity or purchaser, the Executive shall not be treated as
having terminated employment for purposes of this Agreement until such time as the




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	 	 	Executive terminates employment with the successor (including, without limitation, the
merged entity or purchaser).
	 
	8.	 	Compensation Upon Termination.
	 
	(a)	 	Death. If the Executive’s employment is terminated by the Executive’s death, the
Company shall pay to the Executive’s estate, or as may be directed by the legal
representatives to such estate, (i) the Executive’s Base Salary in effect on the date
immediately prior to the Executive’s death, through the Executive’s date of death; (ii)
subject to the terms and conditions of the applicable Company fringe benefit or incentive
compensation plan or program, all other unpaid amounts, if any, to which the Executive is
entitled as of the date of the Executive’s death, under any Company fringe benefit or
incentive compensation plan or program, at the time such payments would otherwise ordinarily
be due (including, without limitation, any Annual Bonus to the extent unpaid in respect of the
calendar year ending prior to the date of the Executive’s death); (iii) the Executive’s full
Base Salary that would have been payable to the Executive from the Executive’s date of death
through the Expiration Date, in a lump sum within forty-five (45) days after his death; and
(iv) an amount equal to the product of the target Annual Bonus for the calendar year in which
the Executive died multiplied by a fraction the numerator being the number of days Executive
was employed by the Company in the calendar year of his death and the denominator being 365,
in a lump sum within forty-five (45) days after his death.
	 
	(b)	 	Disability. Following the use of all sick days to which the Executive is entitled
under the policies applicable to the Company’s senior executives, while he is Disabled until
the Date of Termination (the “Disability Period”), the Company shall, in lieu of payment of
his Base Salary, pay the Executive (i) a disability benefit equal to 50% of the Base Salary
that he would otherwise be entitled to receive for the Disability Period; (ii) subject to the
terms and conditions of the applicable Company fringe benefit or incentive compensation plan
or program, all other unpaid amounts, if any, to which the Executive is entitled as of the
Executive’s date of disability, under any Company fringe benefit or incentive compensation
plan or program, at the time such payments are due (including, without limitation, any Annual
Bonus to the extent unpaid in respect of the calendar year ending prior to the date of the
Executive’s disability); (iii) the Executive’s full Base Salary that would have been payable
to the Executive from the Executive’s Date of Termination through the Expiration Date, in a
lump sum within forty-five (45) days after such Date of Termination; and (iv) an amount equal
to the product of the target Annual Bonus for the calendar year in which the Executive became
Disabled multiplied by a fraction the numerator being the number of days in the calendar year
of his termination due to his becoming Disabled prior to the commencement of the Disability
Period, and the denominator being 365, in a lump sum within forty-five (45) days after such
Date of Termination; provided, however, that any payments made to the
Executive during the Disability Period shall be reduced by any amounts paid or payable to the
Executive under any Company disability benefit plans. Subject to the terms of this Agreement,
the Executive shall not be required to perform services under this Agreement during any period
that he is Disabled. The Executive shall be considered Disabled during any period in which he
has an illness, or a physical or mental disability, or similar incapacity, that




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	 	 	renders him incapable, after reasonable accommodation, of performing his duties under this
Agreement. In the event of a dispute as to whether the Executive is Disabled, the Company
may refer the same to a licensed practicing physician of the Company’s choice, and the
Executive agrees to submit to such tests and examinations as such physician shall deem
appropriate. During the period in which the Executive is Disabled, the Company may appoint
a temporary replacement to assume the Executive’s responsibilities.
	 
	(c)	 	For Cause. If the Company terminates the Executive’s employment for Cause, the
Company shall pay (i) the Executive’s Base Salary in effect on the date immediately prior to
such termination, through the date specified in the Notice of Termination; and (ii) subject to
the terms and conditions of the applicable Company fringe benefit or incentive compensation
plan or program, all other unpaid amounts, if any, to which the Executive is entitled as of
the Date of Termination, under any Company fringe benefit or incentive compensation plan or
program, at the time such payments are due (including, without limitation and when due, any
Annual Bonus to the extent unpaid in respect of the calendar year ending prior to the Date of
Termination), and the Company shall have no further obligations to the Executive under this
Agreement.
	 
	(d)	 	Voluntary. If the Executive terminates his employment for other than Good Reason, the
Company shall pay (i) the Executive’s Base Salary in effect on the date immediately prior to
such termination, through the date specified in the Notice of Termination and (ii) subject to
the terms and conditions of the applicable Company fringe benefit or incentive compensation
plan or program, all other unpaid amounts, if any, to which the Executive is entitled as of
the Date of Termination, under any such fringe benefit or incentive compensation plan or
program, at the time such payments are due (excluding, for the avoidance of doubt, any Annual
Bonus to the extent unpaid in respect of the calendar year ending prior to the Date of
Termination.) The Company shall have no further obligations to the Executive under this
Agreement.
	 
	 	 	“Good Reason” means the occurrence, without the Executive’s express written consent, of any
of the following circumstances:






	 	(i)	 	the Company’s failure to perform or observe any of the material terms or
provisions of this Agreement after the Executive gives a written demand for performance
to the Company within thirty (30) days of the event or circumstance giving rise to such
failure of performance or observance, which demand shall describe specifically the
nature of such alleged failure to perform or observe such material terms or provisions;
	 
	 	(ii)	 	the assignment to the Executive of any duties inconsistent with, or any
substantial diminution in, such Executive’s status or responsibilities as in effect on
the date hereof, including imposition of travel obligations that are materially greater
than is reasonably required by the Company’s business;
	 
	 	(iii)	 	a reduction in the Executive’s Base Salary as in effect on the date hereof, as
that amount may be increased from time to time; or (II) the failure to pay a bonus
award to which the Executive is otherwise entitled, at the time such bonuses are
usually paid;




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	 	(iv)	 	a change in the principal place of the Executive’s employment, as in effect on
the date hereof or as in effect after any subsequent change to which the Executive
consented in writing, to a location more than thirty-five (35) miles distant from the
location of such principal place;
	 
	 	(v)	 	the Company’s failure to continue in effect any incentive compensation plan or
stock option plan in which the Executive participates, unless the Company has provided
an equivalent alternative compensation arrangement (embodied in an ongoing substitute
or alternative plan) to the Executive, or (II) the Company’s failure to continue the
Executive’s participation in any such incentive or stock option plan on substantially
the same basis, both in terms of the amount of benefits provided and the level of the
Executive’s participation relative to other participants;
	 
	 	(vi)	 	the Company’s violation of any applicable criminal law not due to the
Executive’s gross negligence or willful misconduct;
	 
	 	(vii)	 	the failure of the Company or any successor to obtain a satisfactory written
agreement from any successor to assume and agree to perform this Agreement, as
contemplated in Section 15 below; or
	 
	 	(viii)	 	any purported termination of the Executive’s employment that is not effected pursuant
to a Notice of Termination satisfying the requirements of Sections 7(a)(ii) or 7(d), as
applicable. For purposes of this Agreement, no such purported termination shall be
effective except as constituting Good Reason.





The Executive’s continued employment shall not constitute consent to, or a waiver of rights with
respect to, any event or circumstance constituting Good Reason hereunder. The Executive must (1)
give the Company thirty (30) days to cure any event or circumstance giving rise to Good Reason
following his written demand for such cure, and (2) actually terminate his employment as a
consequence of such uncured event or circumstance within fifteen (15) days following the end of
such 30-day cure period.




	(e)	 	Other. If the Company terminates the Executive’s employment other than for Cause or
Disability or if the Executive terminates employment with the Company for Good Reason, the
Company shall pay the Executive’s Base Salary through the date specified in the Notice of
Termination within ten (10) business days after such date and all other unpaid amounts, if
any, to which the Executive is entitled as of the date specified in the Notice of Termination
under any Company fringe benefit or incentive compensation plan or program, at the time such
payments are due (including, without limitation and when due, any Annual Bonus to the extent
unpaid in respect of the calendar year ending prior to the Date of Termination). In addition,
the Company shall pay the Executive against receipt from the Executive a written, signed
release in the form of Exhibit B hereto:






	 	(i)	 	an amount equal to the product of (a) the greater of (x) two or (y) the number
of years (and fraction thereof) remaining in the Agreement Term as of the date
specified in the Notice of Termination, times (b) the full Base Salary then in




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	 	 	 	effect within forty-five (45) days after such date specified in the Notice of
Termination;
	 
	 	(ii)	 	an amount equal to the target Annual Bonus for the calendar year in which the
Date of Termination occurs, in a lump sum within forty-five (45) days after such Date
of Termination.
	 
	 	(iii)	 	an amount equal to the product of the target Annual Bonus for the calendar
year in which the Date of Termination occurs multiplied by a fraction the numerator is
the number of days in that calendar year to and including the Date of Termination and
the denominator is 365, in a lump sum within forty-five (45) days after such Date of
Termination;
	 
	 	(iv)	 	reimbursement of the cost of continuation coverage of group health coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for
the duration of the applicable period to the extent Executive elects such continuation
coverage and is eligible and subject to the terms of the plan and the law
(collectively, the “Reimbursement Payments”) together with an additional amount,
payable within ten (10) business days following the end of the applicable COBRA period,
such that the net amount retained by the Executive, after deduction of any Federal,
state and local income and employment taxes and Excise Tax upon the Reimbursement
Payments, shall be equal to the Reimbursement Payments;
	 
	 	(v)	 	reimbursement for expenses reasonably incurred by the Executive in securing
outplacement services through a professional person or entity of the Executive’s
choice, subject to the approval of the Company (which approval shall not be
unreasonably withheld, conditioned or delayed), at a level commensurate with the
Executive’s position, for a period of up to one (1) year commencing on or before the
one-year anniversary of the Date of Termination at the Executive’s election, provided
that the cost therefore to the Company shall not exceed thirty five thousand dollars
($35,000), but in no event extending beyond the earlier to occur of (i) the end of the
Executive’s second taxable year following the taxable year in which the Termination
Date occurs, and (ii) the date on which the Executive commences other full time
employment. The Company shall reimburse the Executive for any such permitted expenses
on or before the end of the Executive’s third taxable year following the taxable year
in which the Termination Date occurs; and
	 
	 	(vi)	 	full vesting of any equity compensation and the lapse of all restrictions with
respect to any restricted stock granted to the Executive.
	 
	 	(vii)	 	Gross-Up Payments.






	 	(1)	 	If any payment or the value of any benefit received or to be
received by the Executive in connection with the Executive’s termination or
contingent upon a Change of Control (as hereinafter defined) of the




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	 	 	 	Company (whether received or to be received pursuant to the terms of this
Agreement (the “Agreement Payments”) or of any other plan, arrangement, or
agreement of the Company, its successors, any person whose actions result in
a Change of Control of the Company, or any person affiliated with any of
them (or which, as a result of the completion of the transactions causing a
Change of Control, will become affiliated with any of them (“Other Payments”
and, together with the Agreement Payments, the “Payments”)) would be subject
to the excise tax imposed by Section 4999 of the Internal Revenue Code of
1986, as amended (the “Tax Code”) or any comparable federal, state, or local
excise tax (such excise tax, together with any interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), as determined as
provided below, the Company shall pay to the Executive an additional amount
(the “Gross-Up Payment”) such that the net amount the Executive retains,
after deduction of the Excise Tax on Agreement Payments and Other Payments
and any federal, state, and local income, payroll and/or employment tax and
Excise Tax upon the payment provided for by Section 8 hereof, and any
interest, penalties, or additions to tax payable by the Executive with
respect thereto shall be equal to the total present value of the Agreement
Payments and Other Payments at the time such Payments are to be made. The
intent of the parties is that the Company shall be solely responsible for
and shall pay, any Excise Tax on any Payments and any Gross-Up Payment and
any income, payroll and/or employment taxes (including, without limitation,
penalties and interest) imposed on any Gross-Up Payments as well as any loss
of deduction caused by the Gross-Up Payment.
	 
	 	(2)	 	All determinations required to be made under this Section
8(e)(vi), including, without limitation, whether and when a Gross-Up Payment is
required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determinations, shall be made by tax counsel
(either a law firm or a nationally recognized public accounting firm) selected
by the Company and reasonably acceptable to the Executive (“Tax Counsel”). The
Company shall cause the Tax Counsel to provide detailed supporting calculations
to the Company and the Executive within fifteen (15) business days after notice
is given by the Executive to the Company that any or all of the Payments have
occurred, or such earlier time as is requested by the Company. Within two (2)
business days after such notice is given to the Company, the Company shall
instruct the Tax Counsel to timely provide the data required by this Section
8(e)(viii) to the Executive. The Company shall pay all fees and expenses of the
Tax Counsel. The Company shall pay any Excise Tax determined pursuant to this
Section 8(e)(viii) to the Internal Revenue Service (the “IRS”) and/or other
appropriate taxing authority on behalf of the Executive within five (5) days
after receipt of the Tax Counsel’s determination. If the Tax Counsel determines
that there is substantial authority (within the meaning of Section 6662 of the
Tax Code) that no Excise Tax is payable by the Executive, the Tax Counsel shall
furnish the Executive with a written 




11









 






	 	 	 	opinion that the failure to disclose or report the Excise Tax on the
Executive’s federal income tax return will not constitute a substantial
understatement of tax or be reasonably likely to result in the imposition of
a negligence or similar penalty. Any determination by the Tax Counsel shall
be binding upon the Company and the Executive in the absence of material
mathematical or legal error. As a result of the uncertainty in the
application of Section 4999 of the Tax Code at the time of the initial
determination by the Tax Counsel hereunder, it is possible that the Company
will not have made Gross-Up Payments that should have been made or that it
will have made Gross-Up Payments that should not have been made, in each
case, consistent with the calculations required to be made hereunder. If the
Company exhausts its remedies pursuant to Section 8(e)(viii)(3) below and
the Executive is thereafter required to pay an Excise Tax, the Tax Counsel
shall determine the amount of underpayment of Excise Taxes that has occurred
and the Company shall promptly pay any such underpayment to the IRS or other
appropriate taxing authority on the Executive’s behalf or, if the Executive
has previously paid such underpayment, to the Executive. Such payment shall
in all events be paid within ninety (90) days after the Tax Counsel
determines that a payment is required. If the Tax Counsel determines that
an overpayment of Gross-Up Payments has occurred, any such overpayment shall
be treated for all purposes as a loan to the Executive with interest at the
applicable federal rate provided in Section 7872(f)(2) of the Tax Code, due
and payable within ninety (90) days after written demand to the Executive by
the Company; provided, however, that the Executive shall have no duty or
obligation whatsoever to repay such loan if the Executive’s receipt of the
overpayment, or any portion thereof, is includible in the Executive’s income
and the Executive’s repayment of the same is not deductible by the Executive
for federal and state income tax purposes.
	 
	 	(3)	 	The Executive shall notify the Company, in writing of any claim
by the IRS or state or local taxing authority, that, if successful, would
result in any Excise Tax or an underpayment of Gross-Up Payments. Such notice
shall be given as soon as practicable but no later than fifteen (15) business
days after the Executive is informed in writing of the claim and shall inform
the Company of the nature of the claim, the administrative or judicial appeal
period, and the date on which any payment of the claim must be paid. The
Executive shall not pay any portion of the claim before the expiration of the
thirty (30) day period following the date on which the Executive gives such
notice to the Company (or such shorter period ending on the date that any
amount under the claim is due). If the Company notifies the Executive in
writing before the expiration of such thirty (30) day period that it desires to
contest the claim, the Executive shall:






	 	(A)	 	give the Company any information reasonably
requested by the Company relating to the claim;




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	 	(B)	 	take such action in connection with contesting
the claim as the Company shall reasonably request in writing from time
to time, including, without limitation, accepting legal representation
concerning the claim by an attorney selected by the Company who is
reasonably acceptable to the Executive; and
	 
	 	(C)	 	cooperate with the Company in good faith in
order to effectively contest the claim; provided, however, that the
Company shall bear and pay directly all costs and expenses (including,
without limitation, additional interest and penalties and attorneys’
fees) incurred in such contests and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income
tax (including, without limitation, interest and penalties thereon)
imposed as a result of such representation. Without limitation upon the
foregoing provisions of this Section 8(e)(viii)(3)(C), except as
provided below, the Company shall control all proceedings concerning
such contest and, in its sole opinion, may pursue or forgo any and all
administrative appeal, proceedings, hearings and conferences with the
taxing authority pertaining to the claim. At the Company’s written
request and upon payment to the Executive of an amount at least equal
to the claim plus any additional amount necessary to obtain the
jurisdiction of the appropriate tribunal and/or court, the Executive
shall pay the same and sue for a refund. The Executive agrees to
prosecute any contest of a claim to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Company shall determine; provided,
however, that if the Company requests the Executive to pay the claim
and sue for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis, and shall
indemnify and hold the Executive harmless on an after-tax basis, from
any Excise Tax or income tax (including, without limitation, interest
and penalties thereon) imposed on such advance or for any imputed
income on such advance. Any extension of the statute of limitations
relating to the assessment of any Excise Tax for the taxable year of
the Executive that is subject of the claim is to be limited solely to
the claim. Furthermore, the Company’s control of the contest shall be
limited to the issues for which a Gross-Up Payment would be payable
hereunder. The Executive shall be entitled to settle or contest, as the
case may be, any other issue raised by the IRS or any other taxing
authority.






	 	(4)	 	If, after the Executive receives an amount the Company advanced
pursuant to Section 8(e)(vii)(3) above, the Executive receives any refund of a
claim and/or any additional amount that was necessary to obtain jurisdiction,
the Executive shall promptly pay to the Company the amount of such refund
(together with any interest paid or credited thereon after




13









 






	 	 	 	taxes applicable thereto). If, after the Executive receives an amount the
Company advanced pursuant to Section 8(e)(vii)(3) above, a determination is
made that the Executive shall not be entitled to any refund of the claim,
and the Company does not notify the Executive in writing of its intent to
contest such denial or refund of a claim before the expiration of the thirty
(30) days after such determination, then the portion of such advance
attributable to a claim shall be forgiven and shall not be required to be
repaid. The amount of such advance attributable to a claim shall offset, to
the extent thereof, the amount of the underpayment required to be paid by
the Company to the Executive.
	 
	 	(5)	 	If, after the Company advances an additional amount necessary
to obtain jurisdiction, there is a final determination made by the taxing
authority that the Executive is not entitled to any refund of such amount, or
any portion thereof, then the Executive shall repay such nonrefundable amount
to the Company within thirty (30) days after the Executive receives notice of
such final determination. A final determination shall occur when the period to
contest or otherwise appeal any decision by an administrative tribunal or court
of initial jurisdiction has been waived or the time for contesting or appealing
the same has expired.





“Change of Control” means the first to occur after the Effective Date of the
following: (i) any “person” or “group” of persons acting in concert (as such terms
are used in Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), in a transaction or a series of transactions, is or
becomes the Beneficial Owner (as hereinafter defined), directly or indirectly, of
securities of the Company representing more than fifty percent (50%) of the combined
voting power of the Company’s then outstanding securities that have the right to
vote for the election of directors generally (not including in such securities
beneficially owned by such Person any securities acquired directly from or received
through an exchange offer with the Company); or (ii) there is consummated a merger,
consolidation or other business combination (including an exchange of securities
with the security holder’s of a corporation that is a constituent in such business
combination) of the Company or any direct or indirect subsidiary of the Company with
any other corporation, other than a merger, consolidation or business combination
which would result in the voting securities of the Company outstanding immediately
prior to such merger, consolidation or business combination continuing to represent
at least a majority of the combined voting power of the securities having the right
to vote for the election of directors generally of the Company or the surviving
entity or any parent thereof outstanding immediately after such merger,
consolidation or business combination (either by remaining outstanding or by being
converted into or exchanged for voting securities of the surviving entity or parent
thereof) or (iii) there is consummated an agreement for the sale, lease or other
disposition by the Company of all or substantially all of the Company’s assets,
other than a sale, lease or other disposition by the Company of all or substantially
all of the Company’s assets to an entity, at least a majority of the combined voting
power of



14









 








the outstanding securities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company immediately
prior to such sale. The term “Beneficial Owner” as used herein shall carry the
meaning assigned thereto in Rule 13d-3 and 13d-5 under the Exchange Act, except that
in calculating the beneficial ownership of any particular “person”, such “person”
shall be deemed to have beneficial ownership of all securities that such “person”
has the right to acquire by conversion or exercise of other securities, whether such
right is currently exercisable or is exercisable only after the passage of time.




	 	(viii)	 	Notwithstanding the foregoing, a “Change of Control” shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of integrated
transactions immediately following which the record holders of the stock (entitled to
vote for directors) of the Company immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.






	(f)	 	Six-Month Delay For Key Employees. Notwithstanding anything in this Agreement to the
contrary, if the Executive is a key employee of a publicly traded corporation under Section
409A of the Internal Revenue Code of 1986, as amended (“Section 409A”) at the time of his
separation from service and if payment of any amount under this Agreement is required to be
delayed for a period of six (6) months after separation from service pursuant to Section 409A,
payment of such amount shall be delayed as required by Section 409A, and the accumulated
postponed amount shall be paid in a lump sum payment within ten (10) days after the end of the
six-month period. Any amounts not so delayed shall be paid at such times and on such dates as
originally scheduled. A “key employee” shall mean an employee who, at any time during the
12-month period ending on the identification date, is a “specified employee” under Section
409A, as determined by the Board. The determination of key employees, including the number and
identity of persons considered key employees and the identification date, shall be made by the
Board in accordance with the provisions of Sections 416(i) and 409A and the regulations issued
thereunder.
	 
	(g)	 	Mitigation. The Executive shall not be required to mitigate amounts payable pursuant
to this section by seeking other employment or otherwise and there shall be no offset against
any amounts due the Executive under this Agreement on account of any remuneration attributable
to any subsequent employment (including self-employment) that the Executive may obtain. The
amounts payable hereunder shall not be subject to setoff, counterclaim, recoupment, defense or
other right which the Company may have against the Executive or others, except upon obtaining
by the Company a final unappealable judgment or arbitration award against the Executive.
	 
	9.	 	Effect of Termination. If the Executive (a) is a member of the Board or that of any
of the Company’s subsidiaries or, or (b) holds any other position with the Company and the




15









 






	 	 	Company’s subsidiaries on the Date of Termination, the Executive shall resign from all such
positions as of such date.
	 
	10.	 	Termination of Other Agreements. By their execution of this Agreement, each of the
Company and the Executive confirm the termination, as of the Effective Date of all rights and
obligations that each of the parties may have had under (a) the Restated Employment Agreement
between the Executive and USA Mobility, Inc. dated as of November 16, 2004, as amended on
October 30, 2007; (b) the Original Agreement; and (c) any other employment, consulting,
non-competition, bonus or other compensatory plan, program, arrangement or contract relating
to the employment of the Executive, written or oral, between the Executive and the Company,
the Company’s predecessor or any person affiliated with the Company or its predecessor entered
into prior to the Effective Date (together, the “Prior Employment Documents”).
	 
	11.	 	Notices. All notices, demands, requests, or other communications required or permitted to be
given or made hereunder (collectively, “Notice”) shall be in writing and shall be delivered,
telecopied, or mailed by first class registered or certified mail, postage prepaid, addressed
as follows:
	 
	(a)	 	if to the Company:




USA Mobility, Inc.

6677 Richmond Highway

Alexandria, Virginia 22306

Telecopier: (703) 768-9625



with a copy (which shall not constitute notice) to:



Latham and Watkins LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004-1304

Telecopier: (202) 637-2201

Attention: William P. O’Neill, Esq.





	(b)	 	if to the Executive:




Vincent D. Kelly

11807 Chapel Road

Clifton, VA 20124



With a copy (which shall not constitute notice) to:



Williams & Connolly LLP

725 Twelfth Street, NW

Washington, DC 20005

Telecopier: (202) 434-5029

Attention: Deneen C. Howell, Esq.




16









 





or to such other address as may be designated by either party in a notice to the other. Each
notice, demand, request, or other communication that shall be given or made in the manner
described above shall be deemed sufficiently given or made for all purposes three (3) days
after it is deposited in the U.S. mail, postage prepaid, or at such time as it is delivered
to the addressee (with the return receipt, the delivery receipt, the answer back or the
affidavit of messenger being deemed conclusive evidence of such delivery) or at such time as
delivery is refused by the addressee upon presentation.




	12.	 	Severability. The invalidity or unenforceability of any one or more provisions of
this Agreement shall not affect the validity or enforceability of the other provisions of this
Agreement, which shall remain in full force and effect. The parties agree that in the event
any of the provisions in this Agreement, interpreted in accordance with the Agreement as a
whole, are found to be unenforceable by a court of competent jurisdiction, such court shall
determine the limits allowable by law and shall enforce the same.
	 
	13.	 	Survival. It is the express intention and agreement of the parties that the
provisions of Section 5 shall survive the termination of this Agreement, and that the
provisions of Section 6 shall survive for two (2) years following the termination of this
Agreement.
	 
	14.	 	Assignment: Successors. The rights and obligations of the parties to this Agreement
shall not be assignable, except that the rights and obligations of the Company hereunder shall
be assignable in connection with any subsequent merger, consolidation, sale of substantially
all of the assets of the Company, or similar reorganization of a successor. The Company will
require any successor (whether direct or in direct, by purchase, merger, consolidation, or
otherwise) to all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to the same extent
that the Company is required to perform it. Failure of the Company to obtain such assumption
and agreement before the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company as provided in
Section 8(e) herein.
	 
	15.	 	Binding Effect. Subject to any provisions restricting assignment, this Agreement
shall be binding upon the parties and shall inure to the benefit of the parties and their
respective heirs, devisees, executors, administrators, legal representatives, successors, and
assigns.
	 
	16.	 	Amendment Waiver. This Agreement shall not be amended, altered or modified except by
an instrument in writing duly executed by all parties. Neither the waiver by any of the
parties of a breach of or a default under any of the provisions of this Agreement, nor the
failure of either of the parties, on one or more occasions, to enforce any of the provisions
of this Agreement or to exercise any right or privilege hereunder, shall thereafter be
construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights, or privileges.
	 
	17.	 	Headings. Section headings contained in this Agreement are inserted for convenience
of reference only, shall not be deemed to be a part of this Agreement for any purpose, and




17









 






	 	 	shall not in any way define or affect the meaning, construction, or scope of any of the
provisions of this Agreement.
	 
	18.	 	Governing Law. This Agreement, the rights and obligations of the parties, and any
claims or disputes arising from this Agreement, shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia (but not including the choice of law
rules thereof).
	 
	19.	 	Entire Agreement. This Employment Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior agreements, written
or oral, with respect thereto, including, but not limited to, the Prior Employment Documents.
	 
	20.	 	Indemnification. In consideration of this Agreement, the Executive hereby waives any
and all rights under and releases, and indemnifies and holds the Company (and its officers,
directors, employees and agents) and its successors and assigns, harmless from any damage,
loss, liability, judgment, fine, penalty, assessment, settlement, cost, or expense including,
without limitation, reasonable expenses of investigation, reasonable attorneys’ fees and other
reasonable legal costs and expenses incident to any of the foregoing or to the enforcement of
this Section 21, whether or not suit is brought or, if brought, whether or not such suit is
successful, in whole or in part arising out of or relating to any and all employment,
consulting, non-competition, bonus, or other compensatory plan, program, arrangement, or
contract relating to the employment of the Executive, written or oral, between the Executive
and the Company or any person affiliated with the Company entered into prior to the Effective
Date, including, without limitation, the Prior Employment Documents.
	 
	21.	 	Arbitration. Either party may designate in writing to the other (in which case this
Section 21 shall have effect but not otherwise) that any dispute that may arise directly or
indirectly in connection with this Agreement, the Executive’s employment, or the termination
of the Executive’s employment, whether arising in contract, statute, tort, fraud,
misrepresentation, or other legal theory, shall be determined solely by arbitration in
Washington, D.C. under the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association (the “AAA”). The only legal claims between the Executive, on
the one hand, and the Company or any subsidiary, on the other, that would not be included in
this Agreement to arbitrate are claims by the Executive for workers’ compensation or
unemployment compensation benefits, claims for benefits under a Company or subsidiary benefit
plan if the plan does not provide for arbitration of such disputes, and claims by the
Executive that seek judicial relief during the pendency of any dispute or controversy in the
form of specific performance of the right to be paid until the Date of Termination and to be
paid all other unpaid amounts, if any, to which the Executive is entitled as of such Date of
Termination, under any Company fringe benefit or incentive compensation plan or program, at
the time such payments are due (including, without limitation, any Annual Bonus to the extent
unpaid in respect of the calendar year ending prior to the Date of Termination). If this
Section 21 is in effect, any claim with respect to this Agreement, the Executive’s employment,
or the termination of the Executive’s employment must be established by a preponderance 




18









 






	 	 	of the evidence submitted to the impartial arbitrator. A single arbitrator shall conduct any
arbitration. The arbitrator shall have the authority to order a pre-hearing exchange of
information by the parties including, without limitation, production of requested documents,
and examination by deposition of parties and their authorized agents. If this Section 21 is
in effect, the decision of the arbitrator (i) shall be final and binding, (ii) shall be
rendered within ninety (90) days after the impanelment of the arbitrator, and (iii) shall be
kept confidential by the parties to such arbitration. The arbitration award may be enforced
in any court of competent jurisdiction. The Federal Arbitration Act, 9 U.S.C. §§ 1-15, not
state law, shall govern the arbitrability of all claims.
	 
	22.	 	Counterparts. This Agreement may be executed in two or more counterparts (including
via facsimile and via pdf delivered electronically, each of which shall be an original and all
of which shall be deemed to constitute one and the same instrument.
	 
	 	 	IN WITNESS WHEREOF, the undersigned have duly executed this Agreement, or have caused this
Agreement to be duly executed, on their behalf as of the day and year first hereinabove written.





	 	 	 	 	 
	 	USA Mobility, Inc.

 	 
	Date: October 30, 2008	By:  	/s/ Bonnie Culp
 	 
	 	 	Bonnie Culp 	 
	 	 	Executive Vice President, HR 	 
	 
	 	 	 
	Date: October 30, 2008 	/s/ Vincent D. Kelly 	 
	 	Vincent D. Kelly 	 
	 	 	 



19