EXHIBIT 10.16
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"), Xxxxxxxx X. Xxxxxxx
("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 March 20, 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 Senior Vice President and
Chief Financial Officer of the Company and the Parent and providing services for
the Company at the direction of the Company's President and Chief Executive
Officer, or his designee (the "CEO") or, for periods prior to the consummation
of the Reorganization, the Manager of the Company or his designee (the
"Manager"). Executive shall have such duties and responsibilities as may be
assigned to Executive from time to time by the Manager or CEO, as applicable,
shall perform all duties assigned to Executive faithfully and efficiently,
subject to the direction of the Manager or CEO, 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. 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 Manager or CEO, as
applicable, inhibit, prohibit, interfere with or conflict with Executive's
duties under this Agreement or conflict in any material way with the business of
the Company and its 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 Manager or CEO, as applicable, 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) Beginning on the date Executive commences employment with the Company
Executive shall be compensated at an annual rate of $175,000 (the
"Annual Base Salary"), which shall be payable in accordance with the
normal payroll practices of the Company. Beginning on the January 1
immediately following the Effective Date, and on each anniversary of
such date, Executive's rate of Annual Base Salary shall be reviewed by
the Manager or CEO, as applicable, and/or the Parent's Compensation
Committee (the "Compensation Committee") and
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following such review, the Annual Base Salary may be adjusted upward
but in no event will be decreased.
(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 45% 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 Manager or CEO, as applicable,
shall develop annual incentive goals that provide Executive with the
opportunity to earn an annual Incentive Bonus. Such goals will be
submitted to the governing body of the Company pursuant to the
Company's Operating Agreement dated as of February 10, 1999 (as the
same may be amended from time to time) (the "Operating Agreement") or
the Compensation Committee, as applicable, for review, amendment (if
necessary) and final approval. 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 Manager or CEO, as applicable, 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 Manager's or CEO's, as
applicable, recommendation may include a request to either increase or
decrease the Incentive Bonus by up to 20% based on individual
performance. All such recommendations will be submitted to the
governing body of the Company pursuant to the Operating Agreement or
the Compensation Committee, as applicable, 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.
(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 250,000 shares of
the Parent's common stock (the "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
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day periods which have then elapsed since the Effective Date. 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),
(ii) Executive terminates this Agreement pursuant to paragraph 4(e),
(iii) this Agreement is terminated due to Executive's death or
Disability (as defined in paragraph 4(h) below). In addition, the
Stock Options shall fully vest and become exercisable immediately upon
the Company giving notice pursuant to paragraph 1 that the Company
will not renew the Agreement beyond the Initial Employment Period.
(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 Manager or CEO, as applicable, from time to time,
including without limitation, a car allowance of $600 per month. 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.
(g) The Company shall pay the reasonable costs and expenses incurred by
Executive in reviewing, negotiating and preparing this Agreement, up
to a maximum of $5,000.
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
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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 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 (as defined
in paragraph 4(h) below), 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
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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 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)
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continuation of health benefits for Executive and Executive's
dependents for a period of one year 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 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 taxes imposed on
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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.
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(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 Manager or CEO, as applicable,
and the Company's governing body or Board of Directors, as
applicable, and after expiration of a cure period of 30 days
following Executive's receipt of written notice from the Manager
or CEO, as applicable, 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 Company's
governing body or Board of Directors, as applicable, (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 Parent's Board of Directors
(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
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)
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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;
(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
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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 Company's governing body or Board of
Directors, as applicable.
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 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
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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);
(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.
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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 (attention Manager or CEO, as applicable) 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 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
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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
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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.
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 any severance agreements or
arrangements between 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/ Xxxxxxx X. Xxxxx
--------------------------------------------
Its: President and Chief Executive Officer
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EXECUTIVE
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxxx X. Xxxxxxx
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/ Xxxxxxx X. Xxxxx
-------------------------------------------
Its: President and Chief Executive Officer
-------------------------------------------
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