EXHIBIT 10.8
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement (the "Agreement") is made,
entered into and is effective as of July 1, 2000 by and between Illinois PCS,
LLC, an Illinois limited liability company (the "Company"), Xxxxxxx X. Xxxxx
("Executive") and, for the limited purposes specified herein, iPCS, Inc., a
Delaware corporation (the "Parent").
WITNESSETH THAT:
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WHEREAS, the Company desires to continue to employ Executive pursuant to
the terms and conditions set forth in this Agreement and Executive desires to
continue to be employed by the Company pursuant to the terms and conditions of
this Agreement;
WHEREAS, the Company is contemplating a reorganization (the
"Reorganization") pursuant to which the Company will be merged into a corporate
subsidiary of the Parent (and following the Reorganization, such corporate
subsidiary, which will be the survivor of the merger, shall thereafter be
referred to herein as the Company);
WHEREAS, following the Reorganization, an initial public offering of the
common stock of the Parent is contemplated (the "IPO");
WHEREAS, the Company, Executive and Parent previously entered into an
Employment Agreement (the "Prior Agreement") as of February 29, 2000 (the
"Effective Date"); and
WHEREAS, the Company and Executive desire to amend, restate and continue
the Prior Agreement in the form of this Agreement and for this Agreement to be
effective as of the Effective Date and to remain in full force and effect
subject to its terms whether or not the Reorganization is completed and whether
or not the IPO is consummated, provided that if the Reorganization is
consummated this Agreement will be assumed, by operation of law and without any
further action of any party, by the corporate subsidiary of the Parent as the
Company hereunder and will remain in full force and effect thereafter subject to
its terms.
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Company, Executive and,
for the limited purposes specified, the Parent, as follows:
1. Employment Period. Subject to the terms and conditions of this
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Agreement, the Company hereby agrees to employ Executive during the Employment
Period (as defined below) and Executive hereby agrees to remain in the employ of
the Company and to provide services during the Employment Period in accordance
with this Agreement. The "Initial Employment Period" shall be the period
beginning on the Effective Date and ending on the third anniversary
thereof, unless sooner terminated as provided herein. At the conclusion of the
Initial Employment Period this Agreement shall automatically renew for
additional one year terms (each a "Renewal Employment Period" and together with
the Initial Employment Period, the "Employment Period") unless either party
gives notice of intent not to renew at least 90 days prior to the beginning of
any Renewal Employment Period.
2. Duties. Executive agrees that during the Employment Period while
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Executive is employed by the Company, Executive will devote Executive's full
business time, energies and talents to serving as the Manager of the Company
until the consummation of the Reorganization and the President and Chief
Executive Officer of the Company and the Parent immediately after the
consummation of the Reorganization. For periods prior to the Reorganization,
Executive will provide services for the Company in accordance with the terms of
the Company's Operating Agreement dated as of February 10, 1999 (as the same may
be amended from time to time) (the "Operating Agreement") and, for periods after
the Reorganization, at the direction of the Parent's Board of Directors (the
"Board"). Executive shall have such duties and responsibilities as may be
assigned to Executive from time to time pursuant to the Operating Agreement or
the Board, as applicable, shall perform all duties assigned to Executive
faithfully and efficiently, subject to the terms of the Operating Agreement or
the direction of the Board, as applicable, and shall have such authorities and
powers as are inherent to the undertakings applicable to Executive's position
and necessary to carry out the responsibilities and duties required of Executive
hereunder. Executive will perform the duties required by this Agreement at the
Company's principal place of business unless the nature of such duties requires
otherwise. The parties acknowledge and agree that the Company is transitioning
its principal place of business and that no later than December 31, 2000, such
principal place of business will be in the greater Chicago metropolitan area.
Prior to the Reorganization, Executive shall be elected to serve as a member of
the Board for a term to be mutually agreed to by Executive and the Parent. In
addition, if the Parent forms an Executive Committee of the Board, Executive
shall serve as a member of such committee. Notwithstanding the foregoing, during
the Employment Period, Executive may devote reasonable time to activities other
than those required under this Agreement, including activities involving
professional, charitable, educational, religious and similar type activities to
the extent such activities do not, in the reasonable judgment of the Board,
inhibit, prohibit, interfere with or conflict with Executive's duties under this
Agreement or conflict in any material way with the business of the Parent, the
Company and their respective affiliates; provided, however, that Executive shall
not serve on the board of directors of any business (other than the Company) or
hold any other position with any business without receiving the prior written
consent of the Board, which consent may not be unreasonably withheld.
3. Compensation and Benefits. Subject to the terms and conditions of
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this Agreement, during the Employment Period while Executive is employed by the
Company, the Company shall compensate Executive for Executive's services as
follows:
(a) Effective January 1, 2000, Executive shall be compensated at an annual
rate of $225,000 (the "Annual Base Salary"), which shall be payable in
accordance with
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the normal payroll practices of the Company. Beginning on January 1,
2001 and on each anniversary of such date, Executive's rate of Annual
Base Salary shall be reviewed in accordance with the Operating
Agreement for periods prior to the consummation of the Reorganization
or by the Board and/or the Parent's Compensation Committee (the
"Compensation Committee") thereafter, and following such review, the
Annual Base Salary may be adjusted upward but in no event will be
decreased. On or before April 15, 2000, the Company shall pay
Executive all amounts that remain unpaid in connection with the
retroactive increase in Executive's Annual Base Salary.
(b) Executive shall be entitled to receive performance based annual
incentive bonuses ("Incentive Bonus") from the Company in accordance
with the Company's Executive Compensation Strategy and Incentive
Design Plan as in effect from time to time (the "Incentive Bonus
Plan"). The annual Incentive Bonus at the target level of performance
will be 55% of the Annual Base Salary for the year in which the bonus
relates (the "Target Incentive Bonus"). The annual Incentive Bonus may
range from 50% to 200% of the Target Incentive Bonus based the level
of the Company's and Executive's performance. In addition, the
Incentive Bonus is subject to further adjustment as described below.
After discussions with Executive, the Compensation Committee shall
establish annual incentive goals that provide Executive with the
opportunity to earn an annual Incentive Bonus. The first such goals
will be delivered in writing to Executive prior to the Effective Date,
or as soon thereafter as possible, and annually thereafter on or about
December 15 of each year. Within 45 days after the end of each fiscal
year of the Company, the Compensation Committee shall review the goals
for the prior year and develop recommendations as to the amount of
Incentive Bonus Executive is eligible to receive based on the
satisfaction of the applicable criteria. The Compensation Committee's
recommendation may include a request to either increase or decrease
the Incentive Bonus by up to an additional 20% based on individual
performance. All such recommendations will be submitted to the Board
for review, amendment (if necessary) and approval. Promptly after such
final approval, Executive shall be notified of the outcome and, if
applicable, any Incentive Bonus that was awarded shall be paid.
On or before April 15, 2000, the Company shall pay Executive a lump
sum bonus in the amount of $400,000. This payment is in addition to
other amounts that may be owed pursuant to this paragraph 3(b) and
will be subject to applicable withholdings.
(c) As soon as practicable after the Reorganization, Executive shall be
granted an option under the Parent's Amended and Restated 2000 Long
Term Incentive Plan (the "Option Plan") to purchase 500,000 shares of
the Parent's common stock (the
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"Stock Options"), at a purchase price equal to the Fair Market Value
(as defined in the Option Plan) as of the date of grant.
The Stock Options shall be subject to the terms of the Option Plan and
of the Award Agreement delivered in connection with the Option Plan.
As of the date of grant, the Stock Options shall be fully vested and
exercisable with respect to 6.25% of the shares of stock subject
thereto multiplied by the number of full 90 day periods which have
then elapsed since the Executive was first employed by the Company and
its affiliates (whether pursuant to this Agreement or otherwise).
Other stock options that may be granted shall be subject to the terms
of the Option Plan and the Award Agreement delivered pursuant to the
Option Plan. The Stock Options and other stock options that may be
granted shall fully vest and become exercisable upon each of the
following events: (i) a Change in Control (as defined in paragraph
4(h) below), or (ii) termination of this Agreement by the Company for
any reason other than Cause (as defined in paragraph 4(h) below)).
Unexpired Stock Options and other stock options that may be granted
shall be exercisable for a period of 12 months following termination
of Executive's employment with the Company, provided that if
Executive's employment with the Company is terminated for Cause, such
options shall be exercisable for a period of 30 days following such
termination.
On or before January 1, 2001, and each year thereafter, the
Compensation Committee shall consider granting to Executive additional
stock options under the Option Plan. Executive will participate in
other stock options grants awarded to senior executives of the
Company.
(d) Except as otherwise specifically provided to the contrary in this
Agreement, Executive shall be provided with pension and welfare fringe
benefits to the same extent and on the same terms as those benefits
are provided by the Company from time to time to the Company's other
senior management employees and Executive shall be entitled to no less
than four weeks' vacation for each calendar year.
(e) Executive shall be reimbursed by the Company, on terms and conditions
that are substantially similar to those that apply to other similarly
situated senior management employees of the Company, for reasonable
out-of-pocket expenses for entertainment, travel, meals, lodging and
similar items which are consistent with the Company's expense
reimbursement policy and actually incurred by Executive in the
promotion of the Company's business.
(f) The Company shall provide Executive with all other perquisites
approved by the Board from time to time, including without limitation
(i) a car allowance of $850
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per month, (ii) initiation fees and periodic dues and assessments at a
country club of Executive's choice, provided that the Board, or its
designee, has approved an annual maximum for these payments, such
approval not to be unreasonably withheld, (iii) reimbursement for
legal and financial planning professional fees incurred by Executive
in an amount up to $25,000 during calendar year 2000 and $5,000 per
year thereafter, and (iv) a Company purchased term life insurance
policy covering Executive with a minimum death benefit of $5,000,000,
with Executive having the right to name the beneficiary and assume
ownership of the policy upon termination of this Agreement. In
addition, Executive shall be provided with the relocation assistance
that is (i) awarded under the Company's relocation plan in effect from
time to time, and (ii) communicated by the Company in writing to
Executive.
4. Rights and Payments Upon Termination. Executive's right to benefits
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and payments, if any, for periods after the date on which Executive's employment
with the Company and its affiliates terminates for any reason (the "Termination
Date") shall be determined in accordance with this paragraph 4:
(a) Minimum Payments. If Executive's Termination Date occurs during the
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Employment Period for any reason, Executive shall be entitled to the
following payments, in addition to any payments or benefits to which
Executive may be entitled under the following provisions of this
paragraph 4 (other than this paragraph (a)) or the express terms of
any employee benefit plan or as required by law:
(i) Executive's earned but unpaid Annual Base Salary for the period
ending on Executive's Termination Date;
(ii) Executive's earned but unpaid Incentive Bonus for the prior
fiscal year;
(iii) Executive's accrued but unpaid vacation pay for the period
ending with Executive's Termination Date, as determined in
accordance with the Company's policy as in effect from time to
time; and
(iv) Executive's unreimbursed business expenses and all other items
earned and owed to Executive through and including or benefits
which have vested as of the Termination Date.
Payments to be made to Executive pursuant to this paragraph 4(a) shall
be made within 30 days after Executive's Termination Date. Except as
may be otherwise expressly provided to the contrary in this Agreement
or as otherwise provided by law, nothing in this Agreement shall be
construed as requiring Executive to be treated as employed by the
Company following Executive's Termination Date for
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purposes of any employee benefit plan or arrangement in which
Executive may participate at such time.
(b) Termination By Company for Cause. If Executive's Termination Date
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occurs during the Employment Period and is a result of the Company's
termination of Executive's employment on account of Cause, then,
except as described in paragraph 4(a) or as agreed in writing between
Executive and the Company, Executive shall have no right to payments
or benefits under this Agreement (and the Company shall have no
obligation to make any such payments or provide any such benefits) for
periods after Executive's Termination Date.
(c) Termination for Death or Disability. If Executive's Termination Date
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occurs during the Employment Period and is a result of Executive's
death or Disability, then, except as described in paragraph 4(a) or as
agreed in writing between Executive and the Company, Executive (or in
the event of Executive's death, Executive's estate) shall be entitled
to the following: (i) continuing payments of Executive's Annual Base
Salary (payable in accordance with paragraph 3(a)), (ii) continuation
of health benefits for, if applicable, Executive and Executive's
dependents at a cost which is no greater than is charged to active
employees of the Company and their dependents, which continuing health
benefits shall be in addition to, and not part of, any health benefits
required to be provided to Executive and Executive's dependents under
Section 4980B of the Internal Revenue Code of 1986, as amended (the
"Code"), and (iii) a lump sum payment equal to the Target Incentive
Bonus, provided that the payments and benefits contemplated by the
immediately preceding items (i) and (ii) shall commence on Executive's
Termination Date and end on the earlier of (I) the first anniversary
of Executive's Termination Date, or (II) if applicable, the date on
which Executive violates the provisions of paragraphs 5 or 6 of this
Agreement.
(d) Certain Terminations by the Company or Executive. If Executive's
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Termination Date occurs during the Employment Period and is a result
of Executive's termination of employment (A) by the Company for any
reason other than Cause (and is not on account of Executive's death,
Disability, or voluntary resignation, the mutual agreement of the
parties or pursuant to paragraph 4(e)), (B) by Executive following the
Company's breach of this Agreement in any material respect and failure
to cure the breach within 30 days after notice thereof from Executive,
or (C) by Executive within 60 days after the Company relocates its
principal place of business outside of the greater Chicago
metropolitan area, then, except as described in paragraph 4(a) or as
agreed in writing between Executive and the Company, Executive shall
be entitled to the following payments and benefits: (i) continuing
payments of Executive's Annual Base Salary (payable in accordance with
paragraph 3(a)), (ii) continuation of health benefits for Executive
and Executive's dependents at a cost which is no greater than is
charged to active employees of the Company and their dependents, which
continuing health
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benefits shall be in addition to, and not part of, any health benefits
required to be provided to Executive and Executive's dependents under
Section 4980B of the Code; (iii) a lump sum payment equal to the
Target Incentive Bonus, and (iv) continued vesting of any unvested
stock options, provided that the payments and benefits contemplated by
the immediately preceding items (i), (ii) and (iv) shall commence on
Executive's Termination Date and end on the earlier of (I) the first
anniversary of Executive's Termination Date, or (II) the date on which
Executive violates the provisions of paragraphs 5 or 6 of this
Agreement. Notice by the Company that the term of this Agreement will
not be renewed will not result in Executive being eligible for any
payments or benefits contemplated by this paragraph 4(d).
(e) Termination by Executive. If Executive's Termination Date occurs
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during the Employment Period, is within the one year period after a
Change in Control, and is (A) a result of Executive's termination of
employment by the Company for any reason other than Cause, or (B) a
result of Executive terminating this Agreement for Good Reason (as
defined in paragraph 4(h)), then, except as described in paragraph
4(a) or as agreed in writing between Executive and the Company,
Executive shall be entitled to the following payments and benefits:
(i) a lump sum payment equal to two times Executive's Annual Base
Salary; (ii) continuation of health benefits for Executive and
Executive's dependents for a period of two years after Executive's
Termination Date at a cost which is no greater than is charged to
active employees of the Company and their dependents, which continuing
health benefits shall be in addition to, and not part of, any health
benefits required to be provided to Executive and Executive's
dependents under Section 4980B of the Code; (iii) a lump sum payment
equal to the Target Incentive Bonus, and (iv) immediate vesting of any
and all stock options or other incentive awards held by Executive.
(f) Termination for Voluntary Resignation, Mutual Agreement or Other
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Reasons. If Executive's Termination Date occurs during the Employment
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Period and is a result of Executive's voluntary resignation, the
mutual agreement of the parties, or any reason other than those
specified in paragraphs (b), (c), (d) or (e) above, then, except as
described in paragraph 4(a) or as agreed in writing between Executive
and the Company, Executive shall have no right to payments or benefits
under this Agreement (and the Company shall have no obligation to make
any such payments or provide any such benefits) for periods after
Executive's Termination Date.
(g) Excise Tax. If any payment or benefit to which Executive is entitled
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under this Agreement constitutes a "parachute payment" within the
meaning of section 280G of the Code and, as a result thereof,
Executive is subject to a tax under section 4999 of the Code or any
similar tax or assessment (an "Excise Tax"), the Company shall pay to
Executive an additional amount (the "Make-Whole
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Amount") which is intended to make Executive whole for such Excise
Tax. The Make-Whole Amount shall be equal to the sum of (i) the amount
of the Excise Tax, plus (ii) all income, excise and other applicable
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taxes imposed on Executive under the laws of any Federal, state or
local government or taxing authority by reason of the payments
required under clause (i) and this clause (ii). The Make-Whole Amount
payable with respect to an Excise Tax shall be paid by the Company
coincident with the payment and benefits with respect to which such
Excise Tax relates.
If the Internal Revenue Service (the "IRS") subsequently adjusts the
Excise Tax and as a result of such adjustment Executive owes
additional Excise Tax, the Company shall pay such additional Make-
Whole Amount that is necessary to make Executive whole (less any
amounts received by Executive that Executive would not have received
had the computation initially been computed as subsequently adjusted),
including the value of any underpaid Excise Tax, and any related
interest and/or penalties due to the IRS. If such adjustment by the
IRS results in a refund of previously paid Excise Taxes to Executive,
then Executive shall promptly pay the Company the amount of such
refund.
(h) Definitions. For purposes of this Agreement:
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(i) the term "Cause" shall mean (A) the continuous failure by
Executive to substantially perform Executive's duties under this
Agreement, as determined by the Board and after expiration of a
cure period of 30 days following Executive's receipt of written
notice from the Board describing such failure; (B) the willful
engaging by Executive in conduct which is demonstrably and
materially injurious to the Company or its affiliates, monetarily
or otherwise, as determined by the Board, (C) conduct by
Executive that involves theft, fraud or dishonesty, (D) repeated
instances of drug or alcohol abuse or unauthorized absences
during scheduled work hours, or (E) Executive's violation of the
provisions of paragraph 5 or 6 of this Agreement;
(ii) the term "Change in Control" shall mean a change in the
beneficial ownership of the voting stock of the Parent or a
change in the composition of the Board that occurs as follows:
(A) any "Person" (as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), other than the Parent, any entity
owned, directly or indirectly, by the stockholders of the
Parent in substantially the same proportions as their
ownership of stock of the Parent, or any trustee or other
fiduciary holding securities under an employee benefit plan
of the Parent or its subsidiaries or such proportionately
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owned corporation) becomes through acquisitions of
securities of the Parent after the Effective Date of the
Plan, the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly,
of securities of the Parent representing 50% or more of the
combined voting power of the then outstanding securities of
the Parent having the right to vote for the election of
directors;
(B) the stockholders of the Parent approve a merger or
consolidation of the Parent with any other corporation,
other than (I) a merger or consolidation which would result
in the voting securities of the Parent outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the Parent
or such surviving entity outstanding immediately after such
merger or consolidation, or (II) a merger or consolidation
effected to implement a recapitalization of the Parent (or
similar transaction) in which no Person acquires more than
15% of the then outstanding securities of the Parent having
the right to vote for the election of directors;
(C) the stockholders of the Parent approve a plan of complete
liquidation of the Parent or an agreement for the sale or
disposition by the Parent of all or substantially all of the
assets of the Parent (or any transaction having a similar
effect); or
(D) during any 24 month period, individuals who at the beginning
of such period constitute the Board, and any new director
(other than a director designated by a Person who has
entered into an agreement with the Parent to effect a
transaction described in paragraph (A), (B) or (C) of this
paragraph 4(h)(ii)) whose election by the Board or
nomination for election by the stockholders of the Parent
was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at
the beginning of the period or whose election or nomination
for election was previously so approved, cease for any
reason to constitute at least a majority thereof.
Notwithstanding the foregoing Executive acknowledges and agrees
that neither the Reorganization nor the IPO itself shall
constitute a Change in Control for purposes of this Agreement;
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(iii) the term "Good Reason" means the occurrence of any of the
following in anticipation of or within the one year period
immediately following a Change in Control: (A) the assignment
to Executive of duties that are materially inconsistent with
Executive's duties described in paragraph 2, including, without
limitation, a material diminution or reduction in Executive's
office or responsibilities or a reduction in Executive's rate
of Annual Base Salary, bonus or other compensation or a change
in Executive's reporting relationship, (B) the relocation of
Executive to a location that is not within 50 miles of
Executive's then current principal place of business, or (C)
the failure of the Company to continue in effect any of the
Company's annual and long-term incentive compensation plans or
employee benefit or retirement plans, policies, practices, or
other compensation arrangements in which Executive participates
unless such failure to continue the plan, policy, practice or
arrangement (I) is required by law, or (II) pertains to all
plan participants generally and the lost value is being
replaced by a new plan, policy, practice or arrangement of
reasonably equivalent value; and
(iv) the term "Disability" shall mean the inability of Executive to
continue to perform Executive's duties under this Agreement on
a full-time basis as a result of mental or physical illness,
sickness or injury for a period of 120 days within any 12-month
period, as determined in the sole discretion of the Board.
Notwithstanding any other provision of this Agreement, Executive shall
automatically cease to be an officer of the Parent, the Company and their
respective affiliates as of Executive's Termination Date and, to the extent
permitted by applicable law, any and all monies that Executive owes to the
Company shall be repaid to the extent possible, through deduction of such
amounts from any post-termination payments owed to Executive pursuant to this
Agreement. Notwithstanding any other provision of this Agreement, the Company
may suspend Executive from performing Executive's duties under this Agreement;
provided, however, that during the period of suspension (which shall end no
later than Executive's Termination Date), Executive shall continue to be treated
as an employee of the Company for other purposes, and Executive's rights to
compensation or benefits hereunder shall be in effect. Other than as expressly
provided in paragraphs 4(c) and (d), post-termination benefits may not be
suspended or not paid.
5. Confidential Information. Executive agrees that:
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(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, or except to the extent that Executive has
express authorization from the Company, Executive agrees to keep
secret and confidential indefinitely all non-public information
(including, without limitation, information regarding litigation and
pending litigation) concerning the Company and its affiliates
(collectively, "Confidential Information") which was acquired by or
disclosed to
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Executive during the course of Executive's employment with the
Company and not to disclose the same, either directly or
indirectly, to any other person, firm, or business entity, or to
use it in any way.
(b) Confidential Information does not include (i) information which,
at the time of disclosure is published, known publicly or is
otherwise in the public domain, through no fault of Executive;
(ii) information which, after disclosure is published or becomes
known publicly or otherwise becomes part of the public domain,
through no fault of Executive; and (iii) information which is
required to be disclosed in compliance with applicable laws or
regulations or by order of a court or other regulatory body of
competent jurisdiction.
(c) To the extent that any court or agency seeks to have Executive
disclose Confidential Information, Executive shall promptly
inform the Company, and Executive shall take such reasonable
steps to prevent disclosure of Confidential Information until the
Company has been informed of such requested disclosure, and the
Company has an opportunity to respond to such court or agency. To
the extent that Executive obtains information on behalf of the
Company or any of its affiliates that may be subject to attorney-
client privilege as to the Company's attorneys, Executive shall
follow the guidelines provided by the Company's legal counsel on
maintaining the confidentiality of such information and to
preserve such privilege.
(d) Nothing in the foregoing provisions of this paragraph 5 shall be
construed so as to prevent Executive from using, in connection
with Executive's employment for himself or an employer other than
the Company and its affiliates, knowledge which was acquired by
Executive during the course of Executive's employment with the
Company and its affiliates and which is generally known to
persons of Executive's experience in other companies in the same
industry.
6. Noncompetition and Nonsolicitation. While Executive is employed by
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the Company and its affiliates, and for a period of 12 months after Executive's
Termination Date, Executive agrees that:
(a) Executive will not, directly or indirectly engage in, assist,
perform services for, establish or open, or have any equity
interest (other than ownership of 5% or less of the outstanding
stock of any corporation listed on the New York or American Stock
Exchange or included in the National Association of Securities
Dealers Automated Quotation System) in any person, firm,
corporation, partnership or business entity (whether as an
employee, officer, partner, director, agent, security holder,
creditor, consultant, or otherwise) that engages in the
Restricted Business (as defined below) in the Restricted
Territory (as defined below);
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(b) Executive will not, directly or indirectly, for himself or on
behalf of or in conjunction with any other person, firm,
corporation, partnership or business entity, solicit or attempt
to solicit any party who is then or, during the 12-month period
prior to such solicitation or attempt by Executive was (or was
solicited to become), a customer of the Company, provided that
the restriction in this paragraph (b) shall not apply to any
activity on behalf of a business that is not a Restricted
Business; and
(c) Executive will not (and will not attempt to) solicit, entice,
persuade or induce any individual who is employed by the Company
or its affiliates to terminate or refrain from renewing or
extending such employment or to become employed by or enter into
contractual relations with any other individual or entity other
than the Company or its affiliates, and Executive shall not
approach any such employee for any such purpose or authorize or
knowingly cooperate with the taking of any such actions by any
other individual or entity.
For purposes of this Agreement the term (a) "Restricted Business" means the
business of providing wireless telecommunication services or any other business
in which the Company is materially engaged on Executive's Termination Date, and
(b) "Restricted Territory" means all of the basic trading areas (as defined in
the Rand XxXxxxx Commercial Atlas and Marketing Guide or the successor thereto)
in which the Company has been granted the right to carry on the Restricted
Business.
7. Equitable Remedies. Executive acknowledges that the Company would be
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irreparably injured by a violation of paragraphs 5 or 6 hereof and Executive
agrees that the Company, in addition to any other remedies available to it for
such breach or threatened breach, shall be entitled to a preliminary injunction,
temporary restraining order, or other equivalent relief, restraining Executive
from any actual or threatened breach of either paragraph 5 or 6. If a bond is
required to be posted in order for the Company to secure an injunction or other
equitable remedy, the parties agree that said bond need not be more than a
nominal sum.
8. Notices. Any notices provided for in this Agreement shall be in
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writing and shall be deemed to have been duly received when delivered in person
or sent by facsimile transmission, on the first business day after it is sent by
air express courier service or on the second business day following deposit in
the United States registered or certified mail, return receipt requested,
postage prepaid and addressed, in the case of Executive, to the most recent home
address reflected in the Company's records and, in the case of the Company, to
its principal executive offices, or such other address as either party may have
furnished to the other in writing in accordance herewith, except that a notice
of change of address shall be effective only upon actual receipt.
9. Withholding. All compensation payable under this Agreement shall be
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subject to customary withholding taxes and other employment taxes as required
with respect to compensation paid by a corporation to an employee and the amount
of compensation payable
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hereunder shall be reduced appropriately to reflect the amount of any required
withholding. Except as specifically required herein, the Company shall have no
obligation to make any payments to Executive or to make Executive whole for the
amount of any required taxes.
10. Successors. This Agreement shall be binding on, and inure to the
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benefit of, the Company and its successors and assigns and any person acquiring,
whether by merger, reorganization, consolidation, by purchase of assets or
otherwise, all or substantially all of the assets of the Company. To the extent
applicable, this Agreement shall be binding on, and inure to the benefit of, the
Parent and its successors and assigns and any person acquiring, whether by
merger, reorganization, consolidation, by purchase of assets or otherwise, all
or substantially all of the assets of the Parent.
11. Nonalienation. The interests of Executive under this Agreement are
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not subject to the claims of Executive's creditors, other than the Company, and
may not otherwise be voluntarily or involuntarily assigned, alienated or
encumbered.
12. Waiver of Breach. The waiver by the Company, the Parent or Executive
----------------
of a breach of any provision of this Agreement shall not operate as or be deemed
a waiver by such party of any subsequent breach. Continuation of payments
hereunder by the Company following a breach by Executive of any provision of
this Agreement shall not preclude the Company from thereafter terminating said
payments based upon the same violation.
13. Severability. It is mutually agreed and understood by the parties
------------
that should any of the agreements and covenants contained herein be determined
by any court of competent jurisdiction to be invalid by virtue of being vague or
unreasonable, including but not limited to the provisions of paragraphs 5 or 6,
then the parties hereto consent that this Agreement shall be amended retroactive
to the date of its execution to include the terms and conditions said court
deems to be reasonable and in conformity with the original intent of the parties
and the parties hereto consent that under such circumstances, said court shall
have the power and authority to determine what is reasonable and in conformity
with the original intent of the parties to the extent that said covenants and/or
agreements are enforceable.
14. Prevailing Party. In the event of any action, proceeding or litigation
----------------
(collectively, the "Action") between the parties arising out of or in relation
to this Agreement, the prevailing party in such Action, shall be entitled to
recover, in addition to any damages, injunctions, or other relief and without
regard to whether the Action is prosecuted to final appeal, all of its costs and
expenses including, without limitation, reasonable attorney's fees, from the
non-prevailing party.
15. Applicable Law. This Agreement shall be construed in accordance with
--------------
the laws of the State of Illinois, without regard to conflict of law principles.
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16. Amendment. This Agreement may be amended or cancelled by mutual
---------
Agreement of the parties in writing without the consent of any other person.
17. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a copy hereof containing multiple signature
pages, each signed by one party hereto, but together signed by both of the
parties hereto.
18. Other Agreements. This Agreement constitutes the sole and complete
----------------
Agreement between or among the Company, the Parent and Executive and supersedes
all other prior or contemporaneous agreements, both oral and written, between or
among the Company, the Parent and Executive with respect to the matters
contained herein including, without limitation the Management Agreement between
the Company and Executive dated as of March 12, 1999, and any prior or
contemporaneous employment agreements, severance agreements or arrangements
between or among the parties. No verbal or other statements, inducements, or
representations have been made to or relied upon by Executive. The parties have
read and understand this Agreement.
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IN WITNESS THEREOF, Executive has hereunto set Executive's hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the day and year first above written.
Illinois PCS, LLC
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Its: Chairman of the Board
----------------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
IN WITNESS THEREOF, the Parent has caused these presents to be executed in
its name and on its behalf, all as of the day and year first above written, for
the limited purposes specified herein.
iPCS, Inc.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Its: Chairman of the Board
----------------------------------
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