1
EXHIBIT 10.21
AGREEMENT
THIS AGREEMENT is made and entered into as of the 27th day of
September, 1999 by and between CT COMMUNICATIONS, INC. (the "Company"), a North
Carolina corporation, and XXX XXXXXX. ("Employee"), an individual residing in
Mecklenburg 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 twelve (12) months
following such termination of employment. In lieu of receiving payment of
Compensation for such 12-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:
2
(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; or (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.
(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
2
3
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 12-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
3
4
arrange to provide the Employee with medical insurance
benefits for such 12-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
4
5
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 crimes 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.
5
6
I. Following the employee's termination as a result of 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.
6
7
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
7
8
his employment with the Company and for a period of one year 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); and/or
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"; and/or
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 two 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
8
9
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 the 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, if generally eligible
under Section I, 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.
9
10
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/or no 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.
10
11
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto effective as of the day and year first above stated.
CT COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
EMPLOYEE:
/s/ Xxx Xxxxxx (Seal)
-----------------------------------
Xxx Xxxxxx
11
