**Exhibit10.11**

 

EMPLOYMENT AGREEMENT

 

This Employment Agreement (the “Agreement”)is made, entered into and is effective as of the effective date (the “EffectiveDate”) of the Joint Plan of Reorganization for Horizon PCS, Inc., a Delawarecorporation (the “Company”), Horizon Personal Communications, Inc. and BrightPersonal 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 toemploy Executive and Executive desires to continue his employment with theCompany, all effective as of the Effective Date;

 

NOW THEREFORE, in consideration of the mutualcovenants and agreements set forth below, it is hereby covenanted and agreed bythe Company and Executive as follows:

 

1.                                       **EMPLOYMENT PERIOD.** Subject to the terms and conditions of thisAgreement, the Company hereby agrees to employ Executive during the EmploymentPeriod (as defined below) and Executive hereby agrees to remain in the employof the Company and to provide services during the Employment Period inaccordance with this Agreement.  The “EmploymentPeriod” shall be the period beginning as of the Effective Date and ending on December 31,2005.  Upon the expiration of theEmployment Period, Executive’s employment with the Company shallterminate.  The Employment Period may besooner terminated as provided in this Agreement.

 

2.                                       **DUTIES.**  Executiveagrees that during the Employment Period, Executive will devote all of hisbusiness time, energies and talents to serving as the Chief Operating Officerof the Company.  During the EmploymentPeriod, Executive shall report to Chief Executive Officer of the Company and/orto the Board of Directors of the Company (the “Board”) and/or the ExecutiveCommittee of the Board (the “Executive Committee”) as they may determine.  Executive shall have such duties andresponsibilities as are customary to the position of chief operating officer ofcomparable companies and such other duties and responsibilities as may beassigned to Executive from time to time by the Company; provided, that, suchpowers and duties ware consistent with Executive’s position as Chief OperatingOfficer and do not violate any applicable laws or regulations.  During the Employment Period, Executive shallperform all duties assigned to Executive faithfully and efficiently, subject tothe direction of the Company.  Executivewill perform the duties required by this Agreement at the Company’s principalplace of business unless the nature of such duties requires otherwise.

 

3.                                       **COMPENSATION AND BENEFITS.**

 

(a)                                  Annual Base Salary.  During the Employment Period, Executive shallbe compensated at an annual rate of $215,000 (the “Annual Base Salary”), whichshall be payable in accordance with the normal payroll practices of theCompany.  Executive’s rate of Annual BaseSalary shall be periodically reviewed by the Board and/or the CompensationCommittee of the Board (the “Compensation Committee”) for increase, but in noevent will it be decreased.

 

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(b)                                 Bonus.  During the Employment Period, Executive shallbe eligible to be paid performance based incentive bonuses (each, the “IncentiveBonus”) from the Company in accordance with the Company’s executivecompensation incentive plan as in effect from time to time (the “IncentiveBonus Plan”).  The Incentive Bonus at thetarget level of performance will be 40% of the Annual Base Salary for the yearto 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 4thquarter of 2004.  The Incentive BonusPlan for 2005 will be set by the Executive Committee and Executive willparticipate to the same extent as the Company’s CEO and CFO.  Any such bonus earned during a fiscal yearshall be paid at such time as the Company customarily pays annual bonuses.  Should the Incentive Bonus Plan be amended toinclude an annual component in addition to or in replacement of the currentquarterly bonus plan in whole or in part, and Executive’s employment isterminated prior to the payment of an earned bonus for any reason other than bythe Company for Cause or by Executive without Good Reason, Executive shall bepaid any earned but unpaid quarterly bonus and/or a pro-rated portion of theannual bonus at the time bonus payments are customarily paid.

 

(c)                                  Retention Bonus.  Executive shall be entitled to a retentionbonus equal to the amount of $161,250 (the “Retention Bonus”), which shall bepaid in a lump sum payment upon the earlier of (i) Executive’s terminationwithout 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, ifExecutive 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 Dateof Termination occurs after December 31, 2005.

 

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

 

(e)                                  Pension andWelfare Benefits.  During theEmployment Period and except as otherwise specifically provided to the contraryin this Agreement, Executive shall be provided with pension, welfare and fringebenefits to the same extent and on the same terms as those benefits areprovided by the Company from time to time to the Company’s other seniormanagement employees.  Notwithstandingthe foregoing, such Company pension, welfare and fringe benefit plans may beamended or terminated at any time in accordance with the term of suchplans.  During the Employment Period,Executive shall be provided vacation and sick leave in accordance with Companypolicy.

 

(f)                                    Reimbursement ofExpenses.  The Company shall promptlyreimburse Executive for all reasonable business expenses upon the presentationof reasonably itemized statements of such expenses in accordance with theCompany’s policies and procedures now in force or as such policies andprocedures may be modified with respect to all senior executive officers of theCompany.

 

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(g)                                 Perquisites.  During the Employment Period, Executive shallbe provided with perquisites approved by the Board from time to time.

 

4.                                       **TERMINATION.** Executive’s employment hereunder may be terminated during the EmploymentPeriod under the following circumstances:

 

(a)                                  Death.  Executive’s employment hereunder shallterminate upon his death.

 

(b)                                 Disability.  If, as a result of Executive’s incapacity dueto physical or mental illness, Executive shall have been substantially unableto perform his duties hereunder for 120 days in any 365 day period, the Companyshall 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 tobe, a breach of this Agreement.

 

(c)                                  Cause.  The Company shall have the right to terminateExecutive’s employment for Cause, and such termination in and of itself shallnot be, nor shall it be deemed to be, a breach of this Agreement.  For purposes of this Agreement, the Companyshall have “Cause” to terminate Executive’s employment hereunder upon:  (i) Executive’s conviction of, or plea ofguilty or no contest to: (A) any felony or other criminal offense that couldresult in imprisonment of at least 1 year or (B) a crime involving fraud,theft, misappropriation, dishonesty or embezzlement under either federal orstate law; (ii) Executive’s dishonesty in communications to the Board, anymember of the Board or any other superior officer or superior employee he isrequired to report to in the course of fulfilling Executive’s materialemployment duties; (iii) Executive’s proven commission of intentional orgrossly negligent acts that materially impair the goodwill or business of theCompany or cause material damage to its property, goodwill or business; or (iv)Executive’s willful refusal to perform Executive’s employment duties in anymaterial respect (other than as a result of Executive’s short term disabilityor medical emergency involving a member of Executive’s immediate family, or asthe result of any Company approved leave). If the Board has reasonable belief that Executive has committed any ofthe acts described above, it may suspend Executive (with pay) while itinvestigates whether it has or could have Cause to terminate Executive.  The Company may terminate Executive for Causeprior to the completion of its investigation; provided, that, if it isultimately determined that Executive has not committed an act which wouldconstitute Cause, Executive, at the option of the Board, shall be reinstatedeffective as of the date of suspension or shall be treated as if he wereterminated without Cause.

 

(d)                                 Good Reason.  Executive may terminate his employment for “GoodReason” by providing the Company thirty (30) days advance written notice withinthirty (30) days after Executive has actual knowledge of the occurrence,without the written consent of Executive, of (i) any reduction in Executive’sAnnual Base Salary or Target Incentive Bonus opportunity; (ii) any requirementby the Company that Executive’s services be rendered primarily at a location orlocations other than within 35 miles of Executive’s current office location forother than a de minimis period of time, without Executive’s prior writtenconsent; provided, that, Executive shall not have Good Reason if he is requiredto engage in reasonable amounts of travel on Company business, or (iii) amaterial adverse alteration in the nature and status of Executive’sresponsibilities unless such alteration is remedied within thirty daysfollowing written

 

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notification byExecutive to the Company of the alleged material adverse alteration.  Such termination shall not be nor shall it bedeemed to be a breach of this Agreement. Executive shall not have Good Reason to terminate his employment underclause (d)(iii) and only clause (d)(iii) if theCompany is acquired by or merged with, a Sprint PCS affiliate (excluding SprintFON Group in such affiliated group) and Executive reports to the chiefexecutive officer of the new entity and is the chief operating officer or hasanother senior level transition responsibility for the acquired or merged entityat the time of such acquisition or merger. If this Agreement should inure to the benefit of a successor or assigneeCompany as provided in Section 13 below, for the purpose of determiningwhether “Good Reason” can be claimed as provided in clause (d)(ii)above, the Executive’s current office location shall not be deemed to have beenmoved as a result of any change in the headquarters location of the Company orits successors or assigns.

 

(e)                                  Without Cause.  The Company shall have the right to terminateExecutive’s employment hereunder without Cause, at any time by providingExecutive with a Notice of Termination and such termination shall not in and ofitself be, nor shall it be deemed to be, a breach of this Agreement.

 

(f)                                    Without GoodReason.  Executive shall have theright to terminate his employment hereunder without Good Reason by providingthe Company with a Notice of Termination at least thirty (30) days prior tosuch termination, and such termination shall not in and of itself be, nor shallit be deemed to be, a breach of this Agreement.

 

(g)                                 Expiration of theEmployment Period.  Executive’semployment shall automatically terminate upon expiration of the EmploymentPeriod and such termination shall not be a breach of this Agreement.

 

5.                                       **TERMINATION PROCEDURE.**

 

(a)**                                 **Noticeof Termination.  Any termination ofExecutive’s employment by the Company or by Executive during the EmploymentPeriod (other than termination pursuant to Section 4(a)) shall becommunicated by written Notice of Termination to the other party hereto inaccordance with Section 11.  Forpurposes of this Agreement, a “Notice of Termination” shall mean a notice whichshall indicate the specific termination provision in this Agreement relied uponand shall set forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of Executive’s employment under the provisionso indicated.

 

(b)                                 Date of Termination.  “Date of Termination” shall mean (i) ifExecutive’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 havereturned to the substantial performance of his duties on a full-time basisduring such fifteen (15) day period), and (iii) if Executive’s employment isterminated for any other reason, the date on which a Notice of Terminationbecomes effective as provided for in Section 4 which shall not be laterthan thirty (30) days after the giving of such notice.

 

6.                                       **RIGHTS AND PAYMENTS UPON TERMINATION.**  In the event Executive is disabled or hisemployment terminates during the Employment Period, the Company shall

 

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provide Executivewith the payments set forth below. Executive acknowledges and agrees that the payments set forth in this Section 6constitute liquidated damages for termination of his employment during theEmployment Period and that prior to receiving any such payments under Section 6and as a material condition thereof, Executive shall, if requested by theCompany, sign and agree to be bound by a general release of claims against theCompany and its affiliates related to Executive’s employment (and terminationof employment) with the Company in such form as the Company’s Board deemsappropriate.  Upon Executive’stermination of employment for any reason, upon the request of the Board, heshall resign any officerships, directorships or otherpositions that he then holds with the Company or any of its affiliates.

 

(a)                                  Minimum Payments.  If Executive’s Date of Termination occursduring the Employment Period for any reason, Executive shall be entitled to thefollowing payments, in addition to any payments or benefits to which Executivemay be entitled under the following provisions of this Section 6 (otherthan this Section 6 (a)) or the express terms of any employee benefit planor as required by law:

 

(i)                                     Executive’searned, but unpaid Annual Base Salary for the period ending on Executive’s Dateof Termination;

 

(ii)                                  Executive’s earnedand awarded, but unpaid, Incentive Bonus, if any, for the prior fiscal year;

 

(iii)                               to the extent permittedby the Company’s vacation policies as they may exist from time to time,Executive’s accrued, but unpaid vacation pay for the period ending withExecutive’s Date of Termination; and

 

(iv)                              Executive’sunreimbursed business expenses under Section 3(f) of this Agreementthrough and including, the Date of Termination;

 

provided, that, in the event Executive’s employment is terminated bythe Company for Cause or by Executive without Good Reason, the Company will nothave an obligation to pay Executive the amounts, if any, under clause (ii) ofthis 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 providedto the contrary in this Agreement or as otherwise provided by law, nothing inthis Agreement shall be construed as requiring Executive to be treated asemployed by the Company following Executive’s Date of Termination for purposesof any employee benefit plan or arrangement in which Executive may participateat such time.

 

(b)                                 Termination by theCompany For Cause or by Executive without Good Reasonor Upon Expiration of the Employment Period.  If Executive’s Date of Termination occursduring the Employment Period and is a result of the Company’s termination ofExecutive’s employment on account of Cause, by Executive without Good Reason orupon 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 underthis Agreement (and the Company shall have no obligation to make any suchpayments or provide any such benefits) for periods after Executive’s Date ofTermination.

 

(c)                                  Termination forDeath or Disability.  If Executive’sDate of Termination occurs during the Employment Period and is a result ofExecutive’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)                                     continuingpayments of Executive’s Annual Base Salary (payable in accordance with Section 3(a))for the Continuation Period (as defined below);

 

(ii)                                  to the extent electedby Executive, the Company shall pay on behalf of Executive and his “qualifiedbeneficiaries” as defined in Section 4980B of the Internal Revenue Code of1986, 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 isno greater than is charged to active employees of the Company and theirdependents, his COBRA premiums (the “COBRA Payments”); and

 

(iii)                               a lump sum payment equalto the Target Incentive Bonus for the year in which the Date of Terminationoccurs, prorated (on a daily basis) through Executive’s Date of Termination.

 

For purposes of this Agreement, the “Continuation Period” shall be theperiod commencing on Executive’s Date of Termination and ending on the earlierof (A) the first anniversary of Executive’s Date of Termination or (B) the dateon which Executive violates the provisions of Section 8 of thisAgreement.  All lump sum paymentsrequired under this Section 6(c) shall be made no later than 15 days afterthe Date of Termination.

 

(d)                                 Termination withoutCause or for Good Reason.  In theevent of the termination of Executive’s employment during the Employment Periodby the Company without Cause or by Executive for Good Reason, in addition tothe amounts described above in Section 6(a), the Company shall provideExecutive with the payments and benefits described in this Section 6(d).

 

(i)                                     Executive shallreceive 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 eighteenmonths from the Date of Termination and

 

(ii)                                  theCOBRA Payments for the lesser of (A) the Continuation Period or (B) the periodExecutive remains eligible for COBRA.

 

7.                                       C**ESSATION OF DUTIES UPON TERMINATION.**  Notwithstanding any other provision of thisAgreement, Executive shall automatically cease to be an officer of the Companyand its subsidiaries as of Executive’s Date of Termination and, to the extentpermitted by applicable law, any and all monies that Executive owes to theCompany shall be repaid to the extent possible, through deduction of suchamounts from any post-termination payments owed to Executive pursuant to thisAgreement.

 

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8.                                       **RESTRICTIVE COVENANTS.**

 

(a)                                  Acknowledgments.  Executive acknowledges that:  (i) as a result of Executive’s employment bythe Company, Executive has obtained and will obtain Confidential Information;(ii) the Confidential Information has been developed and created by the Companyand its affiliates at substantial expense and the Confidential Informationconstitutes valuable proprietary assets; (iii) the Company and its affiliateswill suffer substantial damage and irreparable harm which will be difficult tocompute if, during the Employment Period and thereafter, Executive should entera Competitive Business (as defined herein) in violation of the provisions of thisAgreement; (iv) the Company and its affiliates will suffer substantial damagewhich will be difficult to compute if, during the term of employment orthereafter, Executive should solicit the Company’s and its affiliate’semployees, clients or customers or should divulge Confidential Informationrelating to the business of the Company and its affiliates; (v) the provisionsof this Agreement are reasonable and necessary for the protection of thebusiness of the Company and its affiliates; and (vi) the Company would not havehired or continued to employ Executive or grant the Options and other benefitscontemplated under Agreement unless he agreed to be bound by the termshereof;  “Competitive Business” as usedin this Agreement shall mean a business offering wireless communicationservices that operates a network and/or provides services to customersprimarily in the regional territory where the Company presently operates as ofthe Effective Date.  “CompetitiveBusiness” shall not include any business offering wireless communicationservices nationally unless Executive’s responsibilities within such a businessare primarily directed toward the regional territory where the Companypresently operates as of the Effective Date. “Confidential Information” as used in this Agreement shall mean any andall confidential and/or proprietary knowledge, data, or information of theCompany 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 otherwork product of the Company or any affiliate, whether or not patentable orregistrable under trademark, copyright, patent or similar laws; (B) informationregarding plans for research, development, new service offerings and/orproducts, marketing, advertising and selling, distribution, business plans, business forecasts, budgets andunpublished financial statements, licenses, prices and costs, suppliers,customers or distribution arrangements; (C) any information regarding theskills and compensation of employees, suppliers, agents, and/or independentcontractors of the Company or any affiliate; (D) concepts and ideas relating tothe 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 ororally disclosed to Executive as confidential.

 

(b)                                 Confidentiality.  In consideration of the benefits provided forthis Agreement, Executive agrees not to, at any time, either during theEmployment Period or thereafter, divulge, use, publish or in any other mannerreveal, directly or indirectly, to any person, firm, corporation or any otherform of business organization or arrangement and keep in the strictestconfidence any Confidential Information, except (i) as may be necessary to theperformance of Executive’s duties hereunder, (ii) with the Company’s expresswritten consent, (iii) to the extent that any such information is in or becomesin the public domain other than as a result of Executive’s

 

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breach of any ofobligations hereunder, or (iv) where required to be disclosed by court order,subpoena or other government process and in such event, Executive shallcooperate with the Company in attempting to keep such informationconfidential.  Upon the request of theCompany, Executive agrees to promptly deliver to the Company the originals andall copies, in whatever medium, all such Confidential Information.

 

(c)                                  Non-Compete.  In consideration of the benefits provided forin this Agreement, Executive covenants and agrees that during the EmploymentPeriod and for a period of three (3) months following the termination of hisemployment for whatever reason (the “Restricted Period”), he will not, forhimself, or in conjunction with any other person, firm, partnership,corporation or other form of business organization or arrangement (whether as apartner, member, principal, agent, lender, director, officer, manager, trustee,representative, employee or consultant), directly or indirectly, be employedby, provide services to, in any way be connected, associated or have anyinterest in, or give advice or consultation to any Competitive Business.

 

(d)                                 Non-Solicitation ofExecutives.  In consideration of thepayments and benefits provided for in this Agreement, Executive covenants andagrees that during the Restricted Period, Executive shall not, without theprior written permission of the Company, directly or indirectly solicit, orhave 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 itsaffiliates at the time of his termination of employment or was or is providingsuch services within the twelve (12) month period before or after histermination of employment.

 

(e)                                  Non-Solicitationof Clients and Customers.  Inconsideration 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 ashareholder, partner, member, lender, principal, agent, director, officer,manager, trustee, representative, employee or consultant), directly orindirectly: (i) solicit any business that is directly related to the businessof the Company or its affiliates, from any person or entity who, at the timeof, or at the time during the twelve months preceding such termination, was anexisting or prospective customer or client of the Company or its affiliates;(ii) request or cause any of the Company’s or its affiliates’ clients orcustomers to cancel or terminate any business relationship with the Company orits affiliates involving services or activities which were directly orindirectly the responsibility of Executive during his employment; or (iii)request or cause any employee of the Company or its affiliates to breach orthreaten to breach any terms of said employee’s agreements with the Company orits affiliates or to terminate his or his employment with the Company or itsaffiliates.

 

(f)                                    Post-EmploymentProperty.  The parties agree that anywork 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 tocopyright, or not, and hereinafter collectively called “discovery”) related totraining or marketing methods and techniques that Executive, either solely orin collaboration with others, has made or may make, discover, invent, develop,perfect, or reduce to practice during the term of his employment, whether ornot during regular business hours, and created,

 

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conceived orprepared on the Company’s or any affiliates’ premises or otherwise shall be thesole and complete property of the Company and/or its affiliates.  More particularly, and without limiting theforegoing, Executive agrees that all of the foregoing and any (i) inventions(whether patentable or not, and without regard to whether any patent thereforis ever sought), (ii) marks, names, or logos (whether or not registrable astrade or service marks, and without regard to whether registration therefor isever sought), (iii) works of authorship (without regard to whether any claim ofcopyright therein is ever registered), and (iv) trade secrets, ideas, andconcepts ((i)-(iv) collectively, “Intellectual Property Products”) created, conceived,or prepared on the Company’s or its affiliates’ premises or otherwise, whetheror not during normal business hours, shall perpetually and throughout the worldbe the exclusive property of the Company and/or its affiliates, as the case maybe, as shall all tangible media (including, but not limited to, papers,computer media of all types, and models) in which such Intellectual PropertyProducts shall be recorded or otherwise fixed. Executive further agreespromptly to disclose in writing and deliver to the Company all IntellectualProperty Products created during his engagement by the Company, whether or notduring normal business hours.  Executiveagrees that all works of authorship, created by Executive during his engagementby the Company shall be works made for hire of which the Company or itsaffiliates is the author and owner of copyright. To the extent that anycompetent decision-making authority should ever determine that any work ofauthorship created by Executive during his engagement by the Company is not awork made for hire, Executive hereby assigns all right, title and interest inthe copyright therein, in perpetuity and throughout the world, to theCompany.  To the extent that thisAgreement does not otherwise serve to grant or otherwise vest in the Company orits affiliates all rights in any Intellectual Property Product created byExecutive during his engagement by the Company, Executive hereby assigns allright, title and interest therein, in perpetuity and throughout the world, to theCompany.  Executive agrees to execute,immediately upon the Company’s reasonable request and without charge, anyfurther assignments, applications, conveyances or other instruments, at anytime after execution of this Agreement, whether or not Executive is engaged bythe 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.  Upontermination of Executive’s employment by the Company for any reason whatsoever,and at any earlier time the Company so requests, Executive will immediatelydeliver to the custody of the person designated by the Company all originalsand copies of any documents and other property of the Company in Executive’spossession, under Executive’s control or to which he may have access.

 

(g)                                 Non-Disparagement.  Executive acknowledges and agrees that hewill not defame or publicly criticize the services, business, integrity,veracity or personal or professional reputation of the Company and/or itsaffiliates and their respective officers, directors, partners, executives oragents thereof in either a professional or personal manner at any time duringor following the Employment Period.

 

(h)                                 Enforcement.  If Executive commits a breach, or threatensto commit a breach, of any of the provisions of this Section 8, the Companyshall have the right and remedy to have the provisions specifically enforced byany court having jurisdiction, it being acknowledged and agreed by Executivethat the services being rendered hereunder to the Company are of a special,

 

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unique andextraordinary character and that any such breach or threatened breach willcause irreparable injury to the Company and that money damages may not providean adequate remedy to the Company.  Suchright and remedy shall be in addition to, and not in lieu of, any other rightsand remedies available to the Company at law or in equity.  Accordingly, Executive consents to theissuance of an injunction, whether preliminary or permanent, consistent withthe terms of this Agreement.  Inaddition, the Company shall have the right to cease making any payments orprovide any benefits to Executive under this Agreement in the event he breachesor threatens to breach any of the provisions hereof, including, withoutlimitation, Section 4(d) of this Agreement.

 

(i)                                     Blue Pencil.  If, at any time, the provisions of this Section 8shall be determined to be invalid or unenforceable under any applicable law, byreason of being vague or unreasonable as to area, duration or scope of activity,this Agreement shall be considered divisible and shall become and beimmediately amended to only such area, duration and scope of activity as shallbe determined to be reasonable and enforceable by the court or other bodyhaving jurisdiction over the matter and Executive and the Company agree thatthis Agreement as so amended shall be valid and binding as though any invalidor unenforceable provision had not been included herein.

 

(j)                                     EXECUTIVEACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS SECTION 8 AND HAS HAD THEOPPORTUNITY TO REVIEW ITS PROVISIONS WITH ANY ADVISORS AS HE CONSIDEREDNECESSARY AND THAT EXECUTIVE UNDERSTANDS THIS AGREEMENT’S CONTENTS ANDSIGNIFIES SUCH UNDERSTANDING AND AGREEMENT BY SIGNING BELOW.

 

9.                                       **CONTINUED INDEMNIFICATION. **Duringthe term of and after the expiration of this Agreement, Company shall continueto indemnify Executive, who is or may be in the future a party or is threatenedto be made a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative by reasonof the fact that Executive is or was a director, officer or employee of thecompany, or is or was serving at the request of the company as a director,trustee, officer, member or employee of another corporation, domestic orforeign, non-profit or for profit, partnership, joint venture, trust or otherenterprise against expenses (including attorneys’ fees), judgments, fines andamounts paid in settlement actually and reasonably incurred in connection withsuch action, suit or proceeding to the extent and under the circumstancespermitted by the Company’s charter and by-laws as they are in effect.

 

10.                                 **RESOLUTIONOF DIFFERENCES OVER BREACH OF AGREEMENT.**  The parties shall use good faith efforts toresolve any controversy or claim arising out of, or relating to this Agreementor the breach thereof, first in accordance with the Company’s internal reviewprocedures, except that this requirement shall not apply to any claim ordispute under or relating to Section 8 of this Agreement.  If despite their good faith efforts theparties are unable to resolve such controversy or claim through the Company’sinternal review procedures, then, except as provided in Section 8(h), suchcontroversy or claim shall be resolved by binding arbitration for resolution inthe state of Columbus, Ohio in accordance with the rules and procedures of theEmployment Dispute Resolution Rules of the American Arbitration

 

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Association then in effect.  The decision of the arbitrator shall be finaland binding on both parties, and any court of competent jurisdiction may enterjudgment upon award.  Each party shallpay its own expenses, including legal fees, in such dispute and shall split thecost of the arbitrator and the arbitration proceedings.

 

11.                                 **NOTICES.**  Any notices provided for in this Agreementshall be in writing and shall be deemed to have been duly received whendelivered in person or sent by facsimile transmission, on the first businessday after it is sent by air express courier service or on the second businessday following deposit in the United States registered or certified mail, returnreceipt requested, postage prepaid and addressed, in the case of Executive, tothe most recent home address reflected in the Company’s records and, in thecase of the Company, to its principal executive offices, or such other addressas either party may have furnished to the other in writing in accordanceherewith, except that a notice of change of address shall be effective onlyupon actual receipt.  In addition, on andafter Executive’s Date of Termination, the Company shall notify Executive ofthe person or persons Executive should contact regarding matters relating tothis 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 inaccordance with this Section 11.

 

12.                                 **WITHHOLDING.**  All compensation payable under this Agreementand/or the Option shall be subject to customary withholding taxes and otheremployment taxes as may be required with respect to compensation paid by acorporation (or entity) to an employee and the amount of compensation payablehereunder shall be reduced appropriately to reflect the amount of any requiredwithholding.  The Company shall have noobligation to make any payments to Executive or to make Executive whole for theamount of any required taxes.

 

13.                                 **SUCCESSORS.**  This Agreement shall be binding on, and inureto the benefit of, the Company and its successors and assigns and any personacquiring, whether by merger, reorganization, consolidation, by purchase ofassets or otherwise, all or substantially all of the assets of the Company.

 

14.                                 **NONALIENATION.**  The interests of Executive under thisAgreement are not subject to the claims of Executive’s creditors, other thanthe Company, and may not otherwise be voluntarily or involuntarily assigned,alienated or encumbered.

 

15.                                 **WAIVER OFBREACH.**               The waiverby the Company or Executive of a breach of any provision of this Agreementshall not operate as or be deemed a waiver by such party of any subsequentbreach.  Continuation of paymentshereunder by the Company following a breach by Executive of any provision ofthis Agreement shall not preclude the Company from thereafter terminating saidpayments based upon the same violation.

 

16.                                 **SEVERABILITY.**  It is mutually agreed and understood by theparties that should any of the agreements and covenants contained herein bedetermined by any court of competent jurisdiction to be invalid by virtue ofbeing vague or unreasonable, including but not limited to the provisions of Section 8,then the parties hereto consent that this Agreement shall be amended retroactiveto the date of its execution to include the terms and conditions said court

 

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deems to be reasonable and in conformity with the original intent ofthe parties and the parties hereto consent that under such circumstances, saidcourt shall have the power and authority to determine what is reasonable and inconformity with the original intent of the parties to the extent that saidcovenants and/or agreements are enforceable.

 

17.                                 **APPLICABLELAW AND CHOICE OF LAW.**  ThisAgreement 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 Agreementshall be filed in the United States District Court, Southern District of Ohio.

 

18.                                 **AMENDMENT.**  No provisions of this Agreement may beamended, modified, or waived unless such amendment or modification is agreed toin 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 numberof counterparts, each of which when so executed and delivered shall be anoriginal, but all such counterparts shall together constitute one and the sameinstrument.  Each counterpart may consistof a copy hereof containing multiple signature pages,each signed by one party hereto, but together signed by both of the partieshereto.

 

20.                                 **SURVIVAL.**  The respective obligations of, and benefitsafforded to, Executive and Company as provided in Section 8 of thisAgreement shall survive the termination of this Agreement.

 

21.                                 **NO CONFLICTOF INTEREST.**  Except asspecifically provided in this Agreement, during the Employment Period, Executiveshall not directly or indirectly render service, or undertake any employment orconsulting agreement with another entity without the express written consent ofthe Company.

 

22.                                 **REPRESENTATION. **Executive represents and warrantsto the Company and Executive acknowledges that the Company has relied on suchrepresentations and warranties in employing Executive, that neither Executive’sduties as an employee of the Company nor hisperformance of this Agreement will breach any other agreement to which Executiveis a party.

 

23.                                 **SECTION HEADINGS.**  The section headings in this Agreementare for convenience of reference only, and they form no part of this Agreementand shall not affect its interpretation.

 

24.                                 **OTHERAGREEMENTS.**  This Agreementconstitutes the sole and complete Agreement between or among the Company andExecutive and supersedes all other prior or contemporaneous agreements, bothoral and written, between or among the Company and Executive with respect tothe matters contained herein including, without limitation, any prioremployment agreements and any severance agreements or arrangements between oramong the parties. No verbal or other statements, inducements, orrepresentations have been made to or relied upon by Executive.  The parties have read and understand thisAgreement.

 

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25.                                 **WAIVER OFCLAIM AGAINST COMPANY PURSUANT TO THE CHAPTER 11 FILING. **Executive agrees to waive anyclaim he may have relating to the Company’s rejection of Executive’s executorycontract(s) in the course of its Chapter 11 filing, if any.  To the extent Executive has filed a proof ofclaim with the bankruptcy court, Executive agrees totake affirmative steps to withdraw such claim. In addition, Executive acknowledges and agrees that he waives his rightto receive any benefits under the Company’s Interim Continuation of KERPProgram or any other similar program of the Company.

 

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IN WITNESS THEREOF, Executive has hereuntoset Executive’s hand, and the Company has caused these presents to be executedin 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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