EXHIBIT 10.34
SKYTEL COMMUNICATIONS, INC.
CHANGE OF CONTROL SEVERANCE BENEFITS AGREEMENT
This AGREEMENT is made and entered into as of the ___ day of _________,
_____ ("Effective Date") by and between __________ (the "Executive") and SkyTel
Communications, Inc., a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Company desires to continue to employ the Executive and to
enter into an agreement to provide for severance benefits to the Executive upon
a Change of Control (as hereinafter defined) of the Company, subject to the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
Unless the context otherwise requires, the following terms shall have the
meaning ascribed to them below:
(a) "Cause" means the occurrence of any of the following:
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(i) the commission by the Executive of any act of fraud or
embezzlement against the Company of any affiliate;
(ii) the conviction of the Executive of a felony;
(iii) the breach by the Executive of any restrictive covenant or
non-competition/non-solicitation provision applicable to
Executive; or
(iv) the willful and continual failure by the Executive to
perform any of his duties or responsibilities and the
failure of the Executive to cure the same within thirty
(30) days after written notice thereof from the Company.
(b) "Change of Control" means the occurrence of any of the following
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events:
(i) any "person" or "group," as such terms are used under
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), other than the
Company, any trustee or any other fiduciary holding
securities under an employee benefit plan of the Company,
or any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of Common Stock of the
Company, is or becomes the "beneficial owner" (as defined
in Rule 13d-3
under the Exchange Act), of securities of the Company
representing thirty percent (30%) or more of the combined
voting power of the Company's voting securities then
outstanding;
(ii) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of
Directors of the Company, cease for any reason to
constitute a majority thereof (unless the election, or
nomination for election by the Company's stockholders, of
such director was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of such period or whose election
or nomination for election was previously so approved).
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with another corporation,
other than (A) a merger or consolidation which would result
in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting
securities of the surviving entity) more than eighty
percent (80%) of the combined voting power of the voting
securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation,
or (B) a merger or consolidation affected to implement a
recapitalization of the Company (or similar transaction) in
which no "person" (as hereinabove defined) acquires more
than thirty percent (30%) of the combined voting power of
the Company's voting securities then outstanding voting
securities; or
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or any agreement for the sale or
disposition by the Company of all or substantially all of
the Company's assets.
(c) "Confidential Information" means data and information relating to
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the business of the Company which is or has been disclosed to the
Executive during the term of his or her employment with the Company
or any of its subsidiaries or of which the Executive became aware
as a consequence of or through his or her relationship to the
Company or any of its subsidiaries. Confidential Information shall
not include any data or information that has been voluntarily
disclosed to the public by the Company (except where such public
disclosure has been made by the Executive without authorization),
or that has been independently developed and disclosed by others,
or that otherwise enters the public domain through lawful means.
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(d) "Good Reason" means the occurrence of any of the following events:
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(i) the modification of the Executive's job title, position or
responsibilities without the Executive's prior written
consent;
(ii) the change of the location where the Executive is based to
a location which is more than thirty-five (35) miles from
his present location without the Executive's prior written
consent; or
(iii) the reduction of the Executive's actual or projected annual
salary and bonus by more than ten percent (10%) from the
sum of the highest rate of the Executive's actual annual
salary and bonus in effect within two years immediately
preceding the Change of Control.
2. BENEFITS UPON A CHANGE OF CONTROL
(a) Severance Benefits. If the Executive's employment with the Company
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is terminated (i) by the Company (or by the acquiring or successor
business entity following a Change of Control) other than for
Cause, death or disability, or (ii) by the Executive for Good
Reason, in either event within a period beginning 180 days before,
and ending one year after, the date of a Change of Control, the
Executive shall receive a severance benefit in an amount equal to
two times the sum of:
(x) the Executive's highest annual cash base salary in effect
within two years immediately preceding the Change of
Control; plus
(y) the average of the Executive's annual bonuses paid for the
two calendar years immediately preceding the Change of
Control.
(b) Form of Payment. The amount of the severance benefit provided in
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Section 2(a) hereof shall be paid to Executive in two installments,
the first installment payable as soon as practicable after the
occurrence of the event giving rise to the payment of the severance
benefit by the Company hereunder, but in no event more than thirty
(30) days thereafter, and the second installment payable one year
following the occurrence of such event provided, however, that the
severance benefit payable by the Company pursuant to Section 2(a)
hereof will be reduced by any other cash payments made to the
Executive pursuant to any other written agreement between the
Executive and the Company as a result of the occurrence of a Change
of Control.
(c) Parachute Payment Offset. Notwithstanding the provisions of
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Section 2(a) hereof, if payments and benefits under this Agreement
when combined with all other "payments in the nature of
compensation" (within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") payable in the event
of a Change of Control would result in a "parachute payment" within
the meaning of Code Section 280G of the Code, as determined by the
Company, then the aggregate payments and benefits hereunder shall
not exceed the largest amount (when combined
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with all other "payments in the nature of compensation"), as
determined by the Company, that can be paid to the Executive by the
Company without resulting in a "parachute payment." In the event
the aggregate payments and benefits hereunder are required to be
reduced, Executive shall be entitled to choose which payments and
benefits hereunder will be reduced.
3. MITIGATION. The Executive shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or
otherwise, and the amount of any payment or benefit provided for in this
Agreement shall not be reduced by any compensation earned by the Executive
as a result of employment by another employee or by retirement benefits
except as provided in Sections 2(b) and 2(c) hereof.
4. NON-COMPETITION, NON-SOLICITATION AND NON-DISCLOSURE OF PROPRIETARY
INFORMATION.
(a) Agreement Not to Compete. The Executive agrees that for a period
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of one(1) year after the termination of his employment with the
Company (the "Applicable Period"), the Executive will not (except
with the prior written consent of the Company) engage in or assist
indirectly, whether as an officer, director, partner, owner,
employee, consultant, agent or otherwise, or have a controlling
interest in any business or enterprise that competes in the United
States with the business of providing one-way or two-way messaging
businesses in which the Company and its subsidiaries are engaged.
(b) Agreement Not to Solicit Customers. The Executive agrees that
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during the Applicable Period he will not, either directly or
indirectly, on the Executive's own behalf or in the service of or
on behalf of others, solicit or divert, or attempt to solicit or
divert any individual or entity (i) which was a customer of the
Company or any of its subsidiaries affiliates or joint ventures, or
(ii) with whom the Executive had direct or indirect contact as part
of his employment during the Executive's last year of employment
with the Company or any of its subsidiaries, affiliates or joint
ventures.
(c) Agreement Not to Solicit Employees. The Executive agrees that
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during the Applicable Period he will not, either directly or
indirectly, on the Executive's own behalf or in the service of or
on behalf of others, solicit, divert or hire away, or attempt to
solicit, divert or hire away, any person employed by the Company or
any of its subsidiaries, affiliates or joint ventures.
(d) Agreement Not to Disclose Confidential Information.
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(i) Confidentiality. All Confidential Information and all
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physical embodiments thereof received or developed by the
Executive while employed by the Company are confidential
and will remain the sole and exclusive property of the
Company. The Executive will hold such Confidential
Information in trust and strictest confidence and will not
use, reproduce, distribute, publicly disclose or otherwise
disseminate to any third party any Confidential
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Information or any physical embodiments thereof for a
period of two (2) years following the termination of
Executive's employment with the Company.
(ii) Return of Company Property. Upon termination of the
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Executive's employment with the Company, the Executive
will promptly deliver to the Company all property
belonging to the Company including, without limitation,
all Confidential Information then in the Executive's
custody, control or possession.
(e) Terms of This Section Not to Supersede Other Restrictive Provisions.
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The terms and conditions contained in this Section shall not
supersede the terms and conditions of any other agreements
applicable to the Executive, but are in addition thereto.
5. TERM. This Agreement shall remain in effect until earlier of (a) one year
after the occurrence of a Change of Control; or (b) three years from the
Effective Date of this Agreement; provided that if a Change of Control
occurs between the second and third years following the Effective Date,
this Agreement will terminate one year after the Change of Control.
6. NO GUARANTEE OF EMPLOYMENT. Notwithstanding any other provision of this
Agreement to the contrary, nothing in this Agreement shall entitle the
Executive to be employed for any certain period of time by the Company or
its subsidiaries or affiliates, and the Company or the Executive shall have
the right to terminate the employment relationship at any time.
7. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and warrants
to the Executive that: (a) this Agreement has been duly authorized,
executed and delivered to the Company and constitutes the valid and binding
obligation of the Company enforceable in accordance with its terms; (b) the
execution and delivery of this Agreement by the Company does not violate
any provision of applicable law, rule or regulation, or the certificate of
incorporation or bylaws of the Company.
8. WAIVER OF BREACH. It is agreed that failure on the part of one party to
this Agreement to seek to enforce this Agreement as to a specific breach
will not constitute a waiver by that party of its or his right to enforce
the Agreement as to similar or other breaches of the Agreement thereafter.
9. AMENDMENTS; FURTHER ACTIONS. This Agreement may not be altered, modified or
amended except by a written instrument signed by each of the parties
hereto. The Company shall take whatever additional actions may be necessary
or appropriate to carry out its obligations under this Agreement and to
permit the Executive to enforce his other rights and benefits hereunder.
10. ASSIGNMENT; SURVIVAL OF RIGHTS.
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(a) Neither this Agreement nor any of the rights or obligations
hereunder may be assigned or delegated by the Executive, provided,
however, that this Agreement and all the benefits to which the
Executive is entitled hereunder shall inure to the benefit of and
be enforceable by the estate of the Executive and the Executive's
personal or legal representatives, executors, administrators, heirs
and beneficiaries.
(b) This Agreement shall be binding upon the Company and its successors
and assigns. Upon the occurrence of a Change of Control, the
Company shall assign this Agreement to the acquiring or successor
business entity effective as of the date of such Change of Control,
and such acquiring or successor business entity shall assume and
perform all of the obligations, terms and provisions imposed by
this Agreement upon the Company. The Company shall take whatever
actions are necessary or appropriate to assure that such acquiring
or successor entity expressly assumes the obligations of the
Company to Executive under this Agreement and shall cause such
successor business entity to evidence the assumption of such
obligations in an agreement satisfactory to the Executive.
11. SEVERABILITY. In the event that any one or more of the provisions of this
Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
12. ENTIRE AGREEMENT. This agreement contains the entire understanding of the
parties with respect to the subject matter hereof.
13. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given
when personally delivered or when mailed by United State registered mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive to:
_______________________
_______________________
If to the Company to:
SkyTel Communications, Inc.
000 Xxxxx Xxxxx Xxxxxx
Skytel Centre, South Building
Jackson, Mississippi 39201
Attn: Senior Vice President and General Counsel
or to such other address as the Executive or the Company shall designate
in writing in accordance with this Section 13, except that notices
regarding changes in address shall be effective only upon receipt.
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14. HEADINGS. Heading to sections in this Agreement are for the convenience of
parties only and are not intended to be a part of or to affect the meaning
or interpretation of this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by the laws of the State
of Mississippi without reference to the principles of conflict of laws.
The parties hereto consent to the jurisdiction of the federal and state
courts of the State of Mississippi in connection with any claim of
controversy arising out of or in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first written.
SKYTEL COMMUNICATIONS, INC.
__________________________________________
Name:
Title:
EXECUTIVE
__________________________________________
Name:
Title:
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