AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of
October, 1997 by and between CT COMMUNICATIONS, INC. (the
"Company"), a North Carolina corporation, and XXXXXX X. XXXXXX
("Employee"), an individual residing in Cabarrus County, North
Carolina;
WHEREAS, the Employee is a valued employee of the Company or
one of the Company's subsidiaries, and in order to induce the
Employee to continue employment with the Company and to enhance
the Employee's job security, the Company desires to provide
compensation to the Employee in the event the Employee's
employment is terminated following a change in control of the
Company, as hereinafter provided; and
WHEREAS, because the Employee has or will become familiar
with the Company's products, relationships, trade secrets and
confidential information relating to both the Company's and its
customers' business, products, processes and development and may
generate or have generated confidential information, the Company
wishes to protect its long-term interests by having the Employee
enter into non-disclosure and non-competition covenants;
NOW, THEREFORE, in consideration of the terms contained
herein, including the compensation the Company agrees to pay to
the Employee upon certain events, the Employee's continued
employment with the Company, the Employee's covenants and other
good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Employee agree
as follows:
I. TERMINATION FOLLOWING A CHANGE IN CONTROL
A. If a Change in Control (as defined in Section IA(iii)
hereof) occurs and if, within two years following the Change in
Control, the employment of the Employee is terminated (A) by the
Company other than for Cause (as defined in Section IA(i)
hereof), or (B) by the Employee for Good Reason (as defined in
Section IA(ii) hereof), the Employee's Compensation (as defined
in Section IA(iv) hereof) shall continue to be paid in monthly
installments, subject to applicable withholdings, by the Company
for a period of thirty-five (35) months following such
termination of employment. In lieu of receiving payment of
Compensation for such 35-month period in installments, the
Employee may elect, at any time prior to the earlier to occur of
a Change in Control or action by the Board of Directors of the
Company (the "Board") with respect to an event which would, upon
consummation, result in a Change in Control (which election shall
be evidenced by notice filed with the Company), to be paid the
present value of any such Compensation in a lump sum within 30
days of termination of the Employee's employment under
circumstances entitling such Employee to Compensation hereunder.
The calculation of the amount due shall be made by the
independent accounting firm then performing the Company's
independent audit, and such calculation, including but not
limited to any discount factor used to determine present value,
shall be conclusive.
For purposes of this Agreement, the following terms shall
have the meanings indicated:
(i) Cause. Termination by the Company for "Cause" shall
mean termination with the approval of the Board (A)
because of willful misconduct of a material nature by
the Employee in connection with the performance of his
duties as an employee; (B) because of the Employee's
use of alcohol or illegal drugs that affects his
ability to perform his assigned duties as an employee;
(C) because of the Employee's conviction of a felony or
serious misdemeanor involving moral turpitude; (D)
because of the Employee's embezzlement or theft from
the Company; (E) because of the Employee's gross
inattention to or dereliction of duty; or (F) because
of performance by the Employee of any other willful
act(s) which the Employee knew or reasonably should
have known would be materially detrimental to the
Company; provided, however, that prior to the
determination by the Board that "Cause" as described in
A, E or F above has occurred, the Board shall (1)
provide to the Employee in writing, in reasonable
detail, the reasons for the Board's determination that
such "Cause" exists, (2) afford the Employee a
reasonable opportunity to remedy any such breach, (3)
provide the Employee an opportunity to be heard at the
Board meeting where the final decision to terminate the
Employee's employment hereunder for such "Cause" is to
be considered, and (4) make any decision that such
"Cause" exists in good faith.
(ii) Good Reason. Termination by the Employee for "Good
Reason" shall mean (A) a material reduction in the
Employee's position, duties, responsibilities or status
as in effect immediately preceding the Change in
Control, or a change in the Employee's title resulting
in a material reduction in his responsibilities or
position with the Company as in effect immediately
preceding the Change in Control, in either case without
the Employee's consent, but excluding for this purpose
any isolated, insubstantial and inadvertent action not
taken in bad faith and which is remedied promptly by
the Company after receiving notice from the Employee
and further excluding any such reductions or changes
made in good faith to conform with generally accepted
industry standards for the Employee's position; (B) a
reduction in the rate of the Employee's base salary as
in effect immediately preceding the Change in Control
or a decrease in any bonus amount to which the Employee
was entitled pursuant to the Company's bonus or
incentive plans at the end of the fiscal year
immediately preceding the Change in Control, in either
case without the Employee's consent; provided, however,
that a decrease in the Employee's bonus amount shall
not constitute "Good Reason" and nothing herein shall
be construed to guarantee such bonus awards if
performance, either by the Company or the Employee, is
below such targets as may reasonably and in good faith
be set forth in such bonus or incentive plans; (C) the
relocation of the Employee, without his consent, to a
location outside a 30 mile radius of Concord, North
Carolina, following a Change in Control or (D) the
resignation by the Employee, by written notice to the
Board, during the period beginning at the end of the
twelfth month period following the Change in Control
and ending on the first day of the eighteenth month
following the Change in Control.
(iii) Change in Control. For purposes of this
Agreement, "Change in Control" shall mean (A) the
consummation of a merger, consolidation, share
exchange or similar transaction of the Company
with any other corporation, entity or group, as a
result of which the holders of the voting capital
stock of the Company as a group would receive less
than 50% of the voting capital stock of the
surviving or resulting corporation; (B) the
consummation of an agreement providing for the
sale or transfer (other than as security for
obligations of the Company) of substantially all
the assets of the Company; or (C) in the absence
of a prior expression of approval by the Board,
the acquisition except by inheritance or devise of
more than 20% of the Company's voting capital
stock by any person within the meaning of Section
13(d)(3) of the Securities Exchange Act of 1934,
as amended, other than a person, or group
including a person, who beneficially owned, as of
the date of this Agreement, more than 5% of the
Company's voting stock or equity, except that
transactions between the Company and any affiliate
or subsidiary of the Company and transactions
between the Company and any employee stock
ownership plan shall not be deemed a "Change in
Control" as described in A, B or C above.
(iv) Compensation. The Employee's Compensation shall
consist of the following: (A) the Employee's annual
base salary, as paid by the Company, in effect
immediately preceding the Change in Control plus (B) an
annual bonus equal to the average bonus (calculated as
a percentage of base salary, without regard to vesting
schedules or restrictions on the bonus compensation and
converting all post-employment payments in stock and
stock options to a cash present value) paid by the
Company for each one-year performance period (often
referred to as the "annual incentive program") to the
Employee for the three (3) most recent fiscal years
ending prior to such Change in Control pursuant to the
Company's incentive and bonus plans or, if the relevant
bonus program has not existed for three (3) years
preceding the Change of Control, an amount equal to the
estimated average bonus as calculated by the
independent accounting firm then performing the
Company's independent audit, which calculation shall be
conclusive.
B. Upon termination of the Employee's employment entitling
the Employee to Compensation set forth in Section IA hereof, and
for the 35-month period following such termination of employment
(unless terminated sooner as provided herein), the Company shall:
(i) maintain in full force and effect for the continued
benefit of the Employee medical insurance (including coverage for
the Employee's dependents to the extent dependent coverage is
provided by the Company for its employees generally) under such
medical insurance plans and programs in which the Employee was
entitled to participate immediately prior to the date of such
termination of employment, provided that the Employee's continued
participation is possible under the general terms and provisions
of such plans and programs. During such period, the Company will
pay the Employee's portion, if any, of such medical insurance
premiums that may be required, and the Employee's termination of
employment at the beginning of the period shall not constitute a
"qualifying event" under the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA"). At the conclusion of such
period, the Employee shall be entitled to full rights to
continued medical insurance coverage as provided under COBRA, if
eligible. In the event that the Employee's participation in any
such plan or program is barred for any reason, the Company shall
arrange to provide the Employee with medical insurance benefits
for such 35-month period substantially similar to those which the
Employee would otherwise have been entitled to receive under such
plans and programs from which his continued participation is
barred; provided, however, in no event will the Employee receive
from the Company the medical insurance contemplated by this
Section IB if the Employee receives comparable insurance from any
other source,
(ii) permit the Employee to participate in all qualified
retirement plans, including without limitation the Company's
pension plan and salary-reduction defined contribution plan;
(iii) maintain in full force and effect for the continued
benefit of the Employee the Employee's life insurance (both basic
and supplemental, if applicable) and
(iv) maintain in full force and effect for the continued
benefit of the Employee the Employee's short term disability and
long term disability insurance policies.
C. Upon termination of the Employee's employment entitling
the Employee to Compensation as set forth in Section IA hereof,
the Employee will become immediately vested in any and all stock
options and shares of restricted stock previously granted to him
by the Company notwithstanding any provision to the contrary of
any plan under which the options or restricted stock are granted.
Any accrued but ungranted stock options or restricted stock shall
also be fully vested upon grant to the Employee. The Employee
may exercise such options only at the times and in the method
described in such options. All restrictions on shares of the
Company's stock granted under any plan shall lapse upon a Change
of Control. The Company will amend such options or plans in any
manner necessary to facilitate the provisions of this Section IC.
D. It is the intention of the Company and the Employee
that no portion of the payment made under this Agreement, or
payments to or for the Employee under any other agreement or
plan, be deemed to be an excess parachute payment as defined in
the Internal Revenue Code of 1986, as amended (the "Code")
section 280G or any successor provision. The Company and the
Employee agree that the present value of any payment hereunder
and any other payment to or for the benefit of the Employee in
the nature of compensation, receipt of which is contingent on a
Change in Control of the Company, and to which Code section 280G
or any successor provision thereto applies, shall not exceed an
amount equal to one dollar less than the maximum amount that the
Employee may receive without becoming subject to the tax imposed
by Code section 4999 or any successor provision or which the
Company may pay without loss of deduction under Code section 280G
or any successor provisions. Present value for purposes of this
Agreement shall be calculated in accordance with Code section
1274(b)(2) or any successor provision. In the event that the
provisions of Code sections 280G and 4999 or any successor
provisions are repealed without succession, this Section ID shall
be of no further force or effect.
E. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation, share exchange
or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance
satisfactory to the Employee, to expressly assume and agree to
perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain
such agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the
Employee to compensation from the Company in the same amount and
on the same terms as he would be entitled to hereunder if he
terminated his employment for Good Reason, except that for
purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the date the
Employee's employment was terminated. As used in this Agreement,
"Company" shall mean the Company as defined herein and any
successor to its business and/or assets as aforesaid that
executes and delivers the agreement provided for in this Section
IE or that otherwise becomes bound by the all terms and
provisions of this Agreement by operation of law.
F. Except as elected by the Employee with the prior
consent of the Company, all payments provided for under this
Section I shall be paid in cash (including the cash values of
stock options or restricted stock, if any) from the general funds
of the Company, and no special or separate fund shall be
established, and no other segregation of assets shall be made to
assure payment, except as provided to the contrary in funded
benefits plans. The Employee shall have no right, title or
interest whatsoever in or to any investments that the Company may
make to aid the Company in meeting its obligations under this
Section I. Nothing contained herein, and no action taken
pursuant to the provisions hereof, shall create or be construed
to create a trust of any kind or a fiduciary relationship between
the Company and the Employee or any other person. To the extent
that any person acquires a right to receive payments from the
Company hereunder, such right shall be no greater than the right
of an unsecured creditor of the Company.
G. Following the Employee's termination as a result of a
Change in Control, the Corporation agrees (i) to indemnify,
defend and hold harmless the Employee from and against any
liabilities other than those contained in Section II and III
hereof and felonies committed by the Employee against the Company
to which he may be subject as a result of his service as an
officer or director of the Company or as an officer or director
of any of the Company's subsidiaries or affiliates, and (ii) to
indemnify the Employee for all costs, including attorney's fees
and other professional fees and disbursements, of (a) any legal
action brought or threatened against him as a result of such
employment, or (b) any legal action in which the Employee is
compelled to give testimony as a result of his employment
hereunder, to the fullest extent permitted by, and subject to the
limitations of, the laws of the state of North Carolina.
H. In the event that any dispute shall arise between the
Employee and the Company relating to his rights under this
Agreement following a Change in Control, and it is determined by
agreement between the parties, or by a final judgment of a court
of competent jurisdiction that is no longer subject to appeal,
that the Employee has been substantially successful in his
claims, then reasonable legal fees and disbursements of the
Employee in connection with such dispute shall be paid by the
Company.
I. Following a Change in Control, the Employee shall be
entitled to receive outplacement assistance for a period of six
(6) months at the Company's expense.
II. COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION
A. The Employee understands that his position with
the Company is one of trust and confidence because of the
Employee's access to trade secrets and confidential and
proprietary business information. The Employee pledges his best
efforts and utmost diligence to protect and keep confidential the
trade secrets and confidential or proprietary business
information of the Company.
B. Unless required by the Company in connection with
his employment or with the Company's express written consent, the
Employee agrees that he will not, either during his employment or
afterwards, directly or indirectly, use, misappropriate, disclose
or aid anyone else in disclosing to any third party for the
Employee's own benefit or the benefit of another all or any part
of any of the Company's trade secrets or confidential or
proprietary information, whether or not the information is
acquired, learned, or developed by the Employee alone or in
conjunction with others. The Employee makes the same pledge with
regard to the confidential information of the Company's
customers, contractors, or others with whom the Company has a
business relationship.
C. The Employee understands that trade secrets and
confidential or proprietary information, for purposes of this
Agreement, shall include, but not be limited to, any and all
versions of the Company's computer software, hardware, and
documentation; all methods, processes, techniques, practices,
product designs, pricing information, billing histories, customer
requirements, customer lists, employee lists and
salary/commission information, personnel matters, financial data,
operating results, plans, contractual relationships, and
projections for business opportunities for new or developing
business of the Company; and all other confidential or
proprietary information, patents, ideas, know-how and trade
secrets which are in the possession of the Company, no matter
what the source, including any such information that the Company
obtains from a customer, contractor or another party or entity
and that the Company treats or designates as confidential or
proprietary information, whether or not such information is owned
or was developed by the Company.
D. The Employee also agrees that all notes, records
(including all computer and electronic records), software,
drawings, handbooks, manuals, policies, contracts, memoranda,
sales files, customer lists, employee lists or other documents
that are made or compiled by the Employee, or which were
available to the Employee while he was employed at the Company,
in whatever form, including but not limited to all such documents
and data concerning any processes, inventions, services or
products used or developed by the Employee during his employment,
shall be the property of the Company. The Employee further
agrees to deliver and make available all such documents and data
to the Company, regardless of how stored or maintained and
including all originals, copies and compilations thereof, upon
the separation of his employment, for any reason, or at any other
time at the Company's request.
E. The Employee understands that the Company expects
him to respect any trade secrets or confidential information of
any of the Employee's former employers, business associates, or
other business relationships. The Employee also agrees to
respect the Company's express direction to the Employee not to
disclose to the Company, its officers, or any of its employees
any such information so long as it remains confidential.
F. The Employee understands that the secrecy of
certain communications is protected by state and federal laws,
and that violations of the Federal Communications Act may subject
the Employee to fines of up to $10,000, or imprisonment for up to
ten years, or both. Therefore, the Employee agrees that the
following restrictions apply to all modes of communications
during the duration of the Employee's employment with the
Company:
1. The Employee will not divulge to any
unauthorized person any knowledge that he may have
regarding communication arrangements between the
Company and its customers.
2. Except as required by the daily performance
of his duties, the Employee will not give to any
individual or group any information whatsoever
regarding the location of telecommunications equipment,
trunks, cables, circuits, etc., or regarding the
installation of the Company's central office equipment,
or any information regarding the Company's plant or
facilities.
3. Except as required in the performance of his
duties with the Company, the Employee will not listen
in on any telephone conversation in any form, nor
disclose to any unauthorized individual or group any
part of any telephone conversation which the Employee
may overhear in the performance of his duties.
4. The Employee will not discuss with his
family, friends or acquaintances any information gained
through his employment with the Company regarding
military installations, communications, filter centers
or other communication procedures and equipment
relating to national security.
5. The Employee will not divulge to any
unauthorized individual or group the existence,
substance, purport, effect of meaning of any
communication between the Company's customers.
6. The Employee will promptly refer to his
supervisor any unauthorized request regarding telephone
communications.
III. COVENANT NOT TO COMPETE
A. For and in consideration of this Agreement, the
change in control protection contained herein and the Employee's
continued employment with the Company, the Employee agrees that,
unless specifically authorized by the Company in writing, the
Employee will not during his employment with the Company and for
a period of two years after his employment with the Company has
terminated or ended (whatever the reason for the end of the
employment relationship):
1. Engage in any "Competitive Activity" (as
defined below) within the "Restricted Territory" (as
defined below);
2. Serve as an employee, director, owner,
partner, contractor, consultant or agent of, or own any
interest in (except for ownership of a minor percentage
of stock in a "public" competitor), any person, firm
or corporation that engages in "Competitive Activity"
within the "Restricted Territory";
3. Engage in any "Competitive Activity" with,
for or towards or divert, attempt to divert or direct
others to divert any business of the Company from an
existing Company customer, a joint venturer or other
business partner of the Company (hereinafter referred
to as an "affiliate"), or from a potential customer
identified through leads or relationships developed
during the Employee's employment with the Company,
within the "Restricted Territory";
B. Furthermore, the Employee will not during his
employment with the Company and for a period of three years after
his employment with the Company has terminated or ended (whatever
the reason for the end of the employment relationship) solicit or
hire for employment or as an independent contractor any employee
of the Company, or solicit, assist, induce, recruit, or assist or
induce anyone else to recruit, or cause another person in the
employ of the Company or any of the Company's affiliates to leave
his employment with the Company or affiliate for the purpose of
joining, associating, or becoming employed with any business or
activity with which the Employee is or expects to be directly or
indirectly associated or employed.
C. "Competitive Activity" means: (1) the business
activities engaged in by the Company during the Employee's
employment with the Company, including the sales, marketing,
distribution and provision of telecommunications services,
equipment or other products of the type of which the Employee
sold or was involved during his employment with the Company;
and/or (2) the performance of any other business activities
competitive with the Company for or on behalf of any
telecommunications entity.
D. "Restricted Territory" means: (1) the geographic
area encompassing a seventy-five (75) mile radius of Concord,
North Carolina; and/or (2) any Metropolitan Statistical Area (as
defined by the United States Department of Commerce) from which
the Company generated at least two percent (2%) of its gross
annual revenue during the last two calendar years before the end
of the Employee's employment with the Company.
IV. ACKNOWLEDGMENTS BY EMPLOYEE
A. The Employee acknowledges that the restrictions
placed upon him by this Agreement are reasonable given the nature
of the Employee's position with the Company, the area in which
the Company markets its products and services, and the
consideration provided by the Company to the Employee pursuant to
this Agreement. Specifically, the Employee acknowledges that the
length of the Covenant Not to Compete in Section III is
reasonable and that the definitions of "Competitive Activity" and
"Restricted Territory" are reasonable.
B. The Employee agrees that in the event of any
breach or threatened breach of the provisions of Section II and
III hereof by Employee, the Company's remedies at law would be
inadequate, and the Company shall be entitled to an injunction
(without any bond or other security being required), restraining
such breach, and costs and attorneys' fees relating to any such
proceeding or any other legal action to enforce the provisions of
this Agreement, but nothing herein shall be construed to preclude
the Company from pursuing any other remedies at law or in equity
available to it for any such breach or threatened breach.
Moreover, the Employee also agrees that if the Employee breaches
any of Sections II or III above, the Employee shall be required
to refund to the Company and the Company shall be entitled to
recover of the Employee 90% of the amount of the Employee's
Compensation (as defined in Section IA(iv) herein) for a Change
in Control already paid to the Employee by the Company under this
Agreement at the time of the breach, and the Employee shall
forfeit at the time of the breach the right to any additional
payments or benefits under this Agreement, except that if the
breach occurs before the payments set forth in Section IA are
made, the Employee shall be entitled to receive the first monthly
payment set forth in Section IA and nothing more. In such case,
the Employee and the Company agree that the confidential
information and non-compete obligations contained in this
Agreement shall remain valid and enforceable based upon the
consideration actually paid.
C. The Employee acknowledges that all of the
provisions of the Agreement are fair and necessary to protect the
interests of the Company. Accordingly, the Employee agrees not
to contest the validity or enforceability of Section II or
Section III hereof and agrees that if any court should hold any
provision of Section II or Section III hereof to be
unenforceable, the remaining provisions will nonetheless be
enforceable according to their terms. Further, if any provision
or subsection is held to be overly broad as written, the Employee
agrees that a court should view the above provisions and
subsections as separable and uphold those separable provisions
and subsections deemed to be reasonable.
D. The Employee understands that every provision of
this Agreement is severable from each other provision of this
Agreement. Therefore, if any provision of this Agreement is held
invalid or unenforceable, every other provision of this Agreement
will continue to be fully valid and enforceable. In the event
that any provision of this Agreement is determined by a court of
competent jurisdiction to be void or unenforceable, the Employee
and the Company agree that such provision shall be enforced to
the extent reasonable under the circumstances and that all other
provisions shall be enforceable to the fullest extent permissible
by law. The Employee and the Company further agree that, if any
court makes such a determination, such court shall have the power
to reduce the duration, scope and/or area of such provisions
and/or delete specific words and phrases by "blue penciling" and,
in its reduced or blue penciled form, such provisions shall then
be enforceable as allowed by law.
V. MISCELLANEOUS
A. The Employee shall have no right to receive any
payment hereunder except following a Change of Control as
determined pursuant to Section I. Nothing contained in this
Agreement shall confer upon the Employee any right to continued
employment by the Company or shall interfere in any way with the
right of the Company to terminate his employment at any time for
any reason. The provisions of this Agreement shall not affect in
any way the right or power of the Company to change its business
structure or to effect a merger, consolidation, share exchange or
similar transaction, or to dissolve or liquidate, or sell or
transfer all or part of its business or assets.
B. The Employee understands that his obligations
under this Agreement will continue whether or not his employment
with the Company is terminated voluntarily or involuntarily, or
with or without cause.
C. This Agreement replaces any previous agreement
relating to the same or similar subject matter which the Employee
and the Company may have entered into with the Company with
respect to the Employee's employment by the Company. This
Agreement may not be changed in any detail by any verbal
statement, representation, or other agreement made by any other
Company employee, or by any written document signed by any
Company employee, other than a Company officer.
D. The Employee agrees that the Company's waiver of
any default by the Employer shall not constitute a waiver of its
rights under this Agreement with respect to any subsequent
default by the Employee. No waiver of any provision of this
Agreement shall be valid unless in writing and signed by all
parties.
E. This Agreement shall be binding upon, and inure to
the benefit of, the Employee and the Company and their respective
permitted successors and assigns. Neither this Agreement nor any
right or interest hereunder shall be assignable by the Employee,
his beneficiaries, or legal representatives without the Company's
prior written consent.
F. Where appropriate as used in this Plan, the
masculine shall include the feminine.
G. This Agreement has been executed and delivered in
the State of North Carolina, and the laws of the State of North
Carolina shall govern its validity, interpretation, performance
and enforcement.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto as of the day and year first above stated.
CT COMMUNICATIONS, INC.
By: /S/ XXXXXXX X. XXXXXXXX
EMPLOYEE:
/S/ XXXXXX X. XXXXXX (Seal)
