EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into as of the 22nd day of January, 1999
("Effective Date"), by and between Rural Cellular Corporation ("RCC" or
"Company") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the "Employee").
WHEREAS, Employee has heretofore been employed by RCC in the position
of Sr. Vice President, Finance and Administration and Chief Financial Officer
and is experienced in the business of RCC; and
WHEREAS, Employee desires to continue to be employed by RCC in the same
position; and
WHEREAS, the parties desire by this writing to set forth the employment
relationship of RCC and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. EMPLOYMENT.
(a) TITLE/DUTIES. The Employee is employed in the capacity of
Sr. Vice President, Finance and Administration and Chief Financial
Officer for RCC, to perform the duties customarily performed by
persons situated in a similar executive capacity. The Employee shall
also promote, by entertainment or otherwise, as and to the extent
permitted by law, the business of RCC. The Employee's other duties
shall be such as the President/CEO may from time to time reasonably
direct.
(b) LOCATION. The Employee's principal place of employment shall
be at the Company's offices in Alexandria, Minnesota.
2. BASE COMPENSATION. RCC agrees to pay the Employee during the term
of this Agreement a salary which shall be at the initial rate of Two Hundred
Fifty-Four Thousand Dollars ($254,000.00) per annum beginning on the
Effective Date, payable not less frequently than every two weeks; PROVIDED,
that the rate of such salary shall be reviewed not less often than annually,
and Employee shall be entitled to receive an increase at such percentage or
in such an amount, if any, as may be determined from time to time. The
Employee's salary may not be decreased below the rate in effect on any date
during the term of this Agreement, except that, in the event that the
salaries of other senior management employees have been generally reduced,
Employee's salary may be reduced in a similar manner, except that any such
reduction following a "Change in Control" (as defined in Appendix A hereto)
shall be subject to the provisions of Section 11(b) hereof.
3. DISCRETIONARY AND INCENTIVE BONUS; STOCK OPTIONS. The Employee
shall be entitled to participate in an equitable manner with all other senior
management employees of RCC in discretionary and incentive bonuses,
including, but not limited to stock option and restricted stock awards and
other cash and non-cash compensation plans that may be authorized and
declared by the Board of Directors to its senior management employees from
time to time.
4. OTHER BENEFITS.
(a) PARTICIPATION IN EMPLOYEE BENEFIT PLANS. The Employee shall
be entitled to participate in any plan of RCC relating to compensation,
profit sharing, retirement, medical coverage or other employee benefits
as RCC may adopt for the benefit of its senior management employees.
(b) FRINGE BENEFITS; EXPENSES. The Employee shall be eligible to
participate in any fringe benefits which may be or may become
applicable to RCC's senior management employees, including by example,
participation in any stock option or incentive plans adopted by the
Board of Directors, and any other benefits adopted by RCC. RCC shall
reimburse Employee for all reasonable out-of-pocket expenses which
Employee shall incur in connection with his service for RCC which are
documented in accordance with RCC's policies as set forth from time to
time.
(c) CAR ALLOWANCE. The Employee shall be required to have and
maintain a personal automobile for use in the performance of his duties
under this Agreement and a valid drivers license to operate RCC
vehicles. RCC shall pay the Employee an allowance at an initial rate
of $6,000.00 per year to compensate him for all expenses incurred by
him in complying with these requirements. In addition, RCC shall
reimburse the Employee at current IRS allowable mileage rates for the
use of his personal automobile on RCC business.
5. TERM. The term of employment of Employee under this Agreement
shall be for the period commencing on the Effective Date and ending December
31, 2001; PROVIDED, that commencing on December 31, 1999, and on each
December 31 thereafter, the term of Employee's employment shall automatically
be extended for one additional year, so that the remaining term of his
employment shall never be less than two years, unless either party gives
written notice to the other of its intention not to so extend the term of the
Employee's employment.
6. LOYALTY; NONCOMPETITION.
(a) The Employee shall devote his full business time and attention
to the performance of his employment under this Agreement. During the
term of Employee's employment under this Agreement, the Employee shall
not engage in any business or activity contrary to the business affairs
or interests of RCC.
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(b) Nothing contained in this Section 6 shall be deemed to prevent
or limit the right of Employee to invest in the capital stock or other
securities of any business dissimilar from that of RCC or, solely as a
passive or minority investor, in any business.
7. STANDARDS. The Employee shall perform his duties under this
Agreement in accordance with the reasonable standards customarily expected of
employees with comparable positions in comparable organizations, or in
accordance with such other standards as may reasonably be established from
time to time by the President/CEO or the Board of Directors.
8. PAID TIME OFF. The Employee shall be entitled, without loss of
pay, to absent himself voluntarily from the performance of the duties of his
employment under this Agreement, with all such voluntary absences to count as
paid time off, in accordance with the following:
(a) The Employee shall be entitled to not less than nineteen (19)
days per calendar year of paid time off for vacation, personal illness,
emergency situations such as family illness, and for any other reason
that time off must be taken during a regular scheduled work day that is
not covered by other Company policies (such as jury duty). Such paid
time off shall be taken in accordance with then current Company
policies.
(b) The Employee shall take at least five consecutive business days
of vacation in each calendar year.
(c) The Employee shall not be entitled to receive any additional
compensation from RCC on account of his failure to take paid time off,
and Employee shall be entitled to accumulate unused paid time off in
accordance with then current Company policy (as of the end of 1999 only
120 hours of paid time off can be carried over into the following
year).
(d) In addition to the aforesaid paid time off, the Employee shall
be entitled, without loss of pay, to absent himself voluntarily from
the performance of his employment with RCC for such additional periods
of time and for such other valid and legitimate reasons as the Board of
Directors in its discretion may determine.
(e) The Employee shall also be entitled to any other paid or unpaid
time off as may be provided by Company policies. Further, the Board of
Directors shall be entitled to grant to the Employee a leave or leaves
of absence with or without pay at such time or times and upon such
terms and conditions as the Board of Directors in is discretion may
determine.
(f) The Employee is encouraged to participate in related industry
and professional organizations and activities provided that the
assumption of any
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significant responsibilities for such outside activities or
organizational participation shall be approved in advance by the
President/CEO.
9. TERMINATION AND TERMINATION PAY. The Employee's employment under
this Agreement may be terminated upon any of the following occurrences:
(a) The death of the Employee during the term of this Agreement,
in which event the Employee's estate shall be entitled to receive the
compensation due the Employee through the last day of the calendar
month in which Employee's death shall have occurred, plus all accrued
but unused paid time off for such calendar year, and PRO RATA payment
of all bonuses or incentive payments earned or to be awarded for such
calendar year.
(b) The Board of Directors may terminate the Employee's employment
at any time, but any termination by the Board of Directors other than
termination for Just Cause, as defined below, shall not prejudice the
Employee's right to compensation or other benefits under this
Agreement. The Employee shall have no right to receive compensation or
other benefits for any period after termination for Just Cause, except
to the extent specifically provided under the terms of any benefit plan
or program of RCC or as may otherwise be required by law. Termination
shall be for "Just Cause" if the Employee
(i) has been convicted of a felony or
(ii) has intentionally engaged in conduct that is
demonstrably and materially injurious to the Company, monetarily or
otherwise;
PROVIDED, HOWEVER, that no termination of Employee's
employment shall be for Just Cause as set forth in clause (ii)
above until
(A) there shall have been delivered to the Employee a copy
of a written notice setting forth that the Employee was
guilty of the conduct set forth in clause (ii) and
specifying the particulars thereof in detail;
(B) the Employee shall have been provided an opportunity to
be heard by the Board of Directors (with the assistance
of the Employee's counsel if the Employee so desires);
and
(C) such conduct is not discontinued within a reasonable
period of time after receipt of the written notice
provided in clause (A).
No act or failure to act on the Employee's part shall be considered
"intentional" unless he has acted or failed to act with an absence of
good faith and without a
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reasonable belief that his action or failure to act was in the best
interest of the Company. Notwithstanding anything contained in this
Agreement to the contrary, no failure to perform by the Employee
after notice of termination has been given by the Employee will
constitute Just Cause for purposes of this Agreement.
(c) Except as provided pursuant to Section 11 herein, in the event
Employee's employment under this Agreement is terminated by the Board
of Directors without Just Cause, RCC shall be obligated to continue to
pay the Employee the salary provided pursuant to Section 2 herein, up
to the date of termination of the term (including any extension of the
term pursuant to Section 5 above) of this Agreement. Notwithstanding
the foregoing, in no event shall payments to be made in accordance with
this Section 9(c) be for a period of less than 12 months following the
date of termination of employment.
(d) The voluntary termination by the Employee during the term of
this Agreement with the delivery of no less than 60 days written notice
to the Board of Directors (other than pursuant to Section 11(b)), in
which case the Employee shall be entitled to receive compensation,
vested rights, and all employee benefits only up to the date of such
termination except as specifically provided below or as required by
law.
10. DISABILITY. If the Employee shall become disabled or
incapacitated to the extent that he is unable to perform his duties
hereunder, by reason of medically determinable physical or mental impairment,
as determined by a doctor mutually acceptable to the Board of Directors and
the Employee and retained by RCC, Employee shall nevertheless continue to
receive the compensation and benefits provided under the terms of this
Agreement as follows: 100% of such compensation and benefits for a period of
six months, but not exceeding the remaining term of the Agreement, and 65%
thereafter for the remainder of the term of the Agreement. Such benefits
noted herein shall be reduced by any benefits otherwise provided to the
Employee during such period under the provisions of disability insurance
coverage in effect for RCC employees. Thereafter, Employee shall be eligible
to receive benefits provided by RCC under the provisions of disability
insurance coverage in effect for RCC employees. Upon returning to active
full-time employment, the Employee's full compensation as set forth in this
Agreement shall be reinstated as of the date of commencement of such
activities. In the event that the Employee returns to active employment on
other than a full-time basis, then his compensation (as set forth in Section
2 of this Agreement) shall be reduced in proportion to the time spent in said
employment, or as shall otherwise be agreed to by the parties.
11. CHANGE IN CONTROL.
(a) TERMINATION BY COMPANY. Notwithstanding any provision herein
to the contrary, in the event the Company terminates Employee's employment
under this Agreement, absent Just Cause, in connection with, or within 24
months after, any Change in Control (as defined in Appendix A hereto) of RCC,
Employee shall be paid an amount
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equal to the product of 2.99 times the Employee's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code") and regulations promulgated thereunder. Said sum shall be paid to the
Employee in one lump sum within five (5) days of such termination. Such
payment shall be in lieu of any other future payments which the Employee
would be otherwise entitled to receive under Section 9 of this Agreement.
(b) TERMINATION FOR "GOOD REASON." Notwithstanding any other
provision of this Agreement to the contrary, if Employee voluntarily
terminates his employment under this Agreement within 24 months following a
Change in Control of RCC for "Good Reason" (as defined herein), Employee
shall be entitled to receive the payment described in Section 11(a) of this
Agreement within five (5) days of such termination. "Good Reason" for
purposes of this Agreement shall be the occurrence of any of the following
events, which have not been consented to in advance by the Employee in
writing: (i) if at the time of a Change in Control of the Company, Employee's
employed at the Company's principal executive offices, a relocation of such
principal executive offices to a location more than fifty miles from such
location or requiring the Employee to be based anywhere other than the
Company's principal executive offices at the time of a Change in Control, or
if Employee is not employed at the Company's principal executive offices at
the time of a Change in Control, Employee's relocation to any place other
than the location at which the Employee principally performed Employee's
duties prior to the Change in Control, or requiring travel by Employee on the
Company's business to an extent substantially greater than Employee's
business travel obligations at the time of the Change in Control; (ii) if in
the organizational structure of RCC Employee would be required to report to a
person or persons other than the President/CEO; (iii) if RCC should fail to
maintain Employee's base compensation in effect as of the date of the Change
in Control and the existing material fringe benefit, performance incentive
and employee benefit plans; (iv) if Employee would be assigned duties and
responsibilities other than those normally associated with his position as
referenced at Section 1 herein; or (v) if Employee's responsibilities or
authority have in any way been materially diminished or reduced.
(c) EXCISE TAX PAYMENTS.
(i) In the event that any payment or benefit (within
the meaning of Section 280G(b)(2) of the Code), paid or payable
to the Employee or for his benefit or distributed or
distributable pursuant to the terms of this Agreement or otherwise
in connection with, or arising out of, his employment with the
Company or a Change in Control of the Company (a "Payment" or
"Payments"), would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are
incurred by the Employee with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then
the Employee will be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after
payment by the Employee of all taxes (including any interest or
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penalties, other than interest and penalties imposed by reason
of the Employee's failure to file timely a tax return or pay
taxes shown as due on his return, imposed with respect to such
taxes and the Excise Tax), including any Excise Tax imposed
upon the Gross-Up Payment, the Employee retains an amount of
the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(ii) An initial determination as to whether a
Gross-Up Payment is required pursuant to this Agreement and the
amount of such Gross-Up Payment shall be made at the Company's
expense by an accounting firm selected by the Company and
reasonably acceptable to the Employee which is designated as
one of the five largest accounting firms in the United States
(the "Accounting Firm"). The Accounting Firm shall provide its
determination (the "Determination"), together with detailed
supporting calculations and documentation, to the Company and
the Employee within five days of the date of termination of the
Employee's employment, if applicable, or such other time as
requested by the Company or the Employee (provided the Employee
reasonably believes that any of the Payments may be subject to
the Excise Tax). If the Accounting Firm determines that no
Excise Tax is payable by the Employee with respect to a Payment or
Payments, it shall furnish the Employee with an opinion
reasonably acceptable to the Employee that no Excise Tax will be
imposed with respect to any such Payment or Payments. Within ten
days of the delivery of the Determination to the Employee, the
Employee shall have the right to dispute the Determination (the
"Dispute"). The Gross-Up Payment, if any, as determined pursuant
to this Section 11(c) shall be paid by the Company to the
Employee within five days of the receipt of the
Determination. The existence of the Dispute shall not in any
way affect the Employee's right to receive the Gross-Up
Payment in accordance with the Determination. Upon the final
resolution of a Dispute, the Company shall promptly pay to
the Employee any additional amount required by such
resolution, or, if it is determined that the Excise Tax is
lower than originally determined, the Employee shall repay to
the Company the excess amount of the Gross-Up Payment. If there
is no Dispute, the Determination shall be binding, final and
conclusive upon the Company and the Employee subject to the
application of Section 11 (c)(iii) below.
(iii) Notwithstanding anything contained in this
Agreement to the contrary, in the event that, according to the
Determination, an Excise Tax will be imposed on any Payment or
Payments, the Company shall pay to the applicable government taxing
authorities as Excise Tax withholding, the amount of the Excise Tax
that the Company has actually withheld from the Payment or Payments.
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12. NON-COMPETITION AGREEMENT.
(a) TERM. During the term of the Employee's employment pursuant to
this Agreement and for the period ending six (6) months after the voluntary
or involuntary termination of such employment, Employee agrees that he will
not, without RCC's prior written consent, directly or indirectly, within the
service areas served by RCC at the time of termination, lend his credit,
advice or assistance, or engage in any activity or act in any manner,
including but not limited to, as an individual, owner, sole proprietor,
founder, associate, promoter, partner, joint venturer, shareholder other than
as a less than five percent shareholder of a publicly traded corporation,
officer, director, trustee, manager, employer, employee, licensor, licensee,
principal, agent, salesman, broker, representative, consultant, adviser,
investor or otherwise, for the purpose of establishing, operating or managing
any business or entity that is engaged in activities competitive with the
business of the Company as carried on as of the date of termination.
(b) NON-SOLICITATION AGREEMENT. As used in this Agreement, the
term "Person" means any individual, corporation, joint venture, general or
limited partnership, association or other entity. During the period of six
(6) months from and after the date of termination of his employment pursuant
to this Agreement, Employee agrees that he will not, whether for his own
account or for the account of any other Person, directly or indirectly
interfere with the Company's relationship with or endeavor to divert or
entice away from the Company any Person who or which at any time during the
term of Employee's employment by RCC is or was an employee or customer of or
in the habit of dealing with RCC.
(c) REASONABLENESS OF COVENANTS. Employee acknowledges and
agrees that the geographic scope and period of duration of the restrictive
covenants contained in this Agreement are both fair and reasonable and that
the interests sought to be protected by the Company are legitimate business
interests entitled to be protected. It is the intention of the parties that
the provisions of this Section 12 shall be enforceable to the fullest extent
permissible under applicable law; however, if any restriction contained in
this Section is held to be unenforceable because of the duration of such
restriction or the geographical area covered thereby, the parties agree that
the court making such determination shall have the power to reduce the
duration and/or geographical area of such restriction and, in its reduced
form, said restriction shall then be enforceable.
(d) INJUNCTIVE RELIEF; ATTORNEYS' FEES. The parties agree that
the remedy of damages at law for the breach by Employee of any of the
covenants contained in this Section 12 is an inadequate remedy. In
recognition of the irreparable harm that a violation by Employee of any of
the covenants, agreements or obligations arising under this Agreement would
cause RCC, Employee agrees that in addition to any other remedies or relief
afforded by law, an injunction against an actual or threatened violation or
violations may be issued against him and every other Person concerned
thereby, it being the understanding of the parties that both damages and an
injunction shall be proper modes of relief and are not to be considered
alternative remedies. In the event of any such an actual or threatened
violation, Employee agrees to pay the costs, expenses and
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reasonable attorneys' fees incurred by the Company in pursuing any of its
rights with respect to such actual or threatened violation, in addition to
the actual damages sustained by the Company as a result thereof. Such costs,
expenses, fees and damages shall not be payable by the Employee until a final
judgment, from which no further appeal may be taken, has been entered in
favor of the Company by a court of competent jurisdiction. If no such
judgment is entered, the Employee shall not be liable for any such costs,
expenses, fees or damages, and the Company shall reimburse the Employee for
any costs, expenses and reasonable attorneys' fees incurred by him in
defending against the Company's allegations.
(e) COMPENSATION. In the event that Employee's employment has
terminated and Employee is not entitled to receive payment under Section 9
or 11 of this Agreement, to compensate Employee for the restrictive covenants
contained in this Agreement, RCC agrees to pay Employee an amount equal to
25% of the Employee's final compensation. One-half of this amount is payable
in equal monthly payments commencing on the last day of the month following
termination and continuing thereafter on the last day of each and every month
until the end of the period stated in Section 12(a) and one-half at the end
of the period stated in Section 12(a). For the purposes of this paragraph,
the Employee's "final compensation" means the Employee's annual rate of
salary in effect on the date his employment terminates, plus his bonus and/or
incentive payment(s) for the year immediately preceding the year in which his
employment terminates.
In the event that Employee shall breach any of his covenants,
agreements or obligations arising under this Agreement, RCC shall have the
right to discontinue making the payments to Employee provided for herein
unless and until Employee has cured any such existing breaches.
(f) WAIVER OF RESTRICTIONS. RCC may waive the restrictions on
Employee imposed in Section 12 at any time. In the event of such waiver: (i)
RCC shall not be obligated to make any further monthly payments pursuant to
Section 12(e); and (ii) any payment due pursuant to Section 12(e) at the
expiration of the period stated in Section 12(a) shall be prorated and paid
at the time of the waiver.
13. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall inure to the benefit of and be binding
upon any corporation or other successor of RCC which shall acquire, directly
or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the business, assets or stock of RCC.
(b) Since RCC is contracting for the unique and personal skills of
the Employee, the Employee shall be precluded from assigning or delegating
his rights or duties hereunder without first obtaining the written consent of
RCC.
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14. AMENDMENTS. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
15. APPLICABLE LAW. This Agreement shall be governed in all respects,
whether as to validity, construction, capacity, performance or otherwise, by
the laws of the State of Minnesota, except to the extent that Federal law
shall be deemed to apply.
16. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. ARBITRATION. Subject to RCC's right to seek injunctive relief from
a court of competent jurisdiction pursuant to Section 12(d), any controversy
or claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration in accordance with the rules then in effect
of the district office of the American Arbitration Association ("AAA")
nearest to the home office of RCC, and judgment upon the award rendered may
be entered in any court having jurisdiction thereof, except to the extent
that the parties may otherwise reach a mutual settlement of such issue. RCC
shall incur the cost of all fees and expenses associated with filing a
request for arbitration with the AAA, whether such filing is made on behalf
of RCC or the Employee, and the costs and administrative fees associated with
employing the arbitrator and related administrative expenses assessed by the
AAA. If the parties cannot mutually agree on an arbitrator, each party shall
select an arbitrator and those two arbitrators shall select a third
arbitrator and the third arbitrator shall conduct the arbitration. Otherwise,
each party shall pay its own costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions,
notwithstanding the ultimate outcome thereof, upon delivery of a final
judgment or settlement of the dispute.
18. REPRESENTATION BY COUNSEL. Employee acknowledges that he has read
this Agreement and that he fully understands his rights, privileges, and
duties hereunder. He further acknowledges that he has had the opportunity to
consult and has consulted with attorneys of his choice to review and explain
the terms of this Agreement and the consequences of signing it.
19. ENTIRE AGREEMENT. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto, and shall
supersede all prior understandings in writing or otherwise between the
parties, including the Employment Agreement by and between Employee and the
Company dated May 14, 1996, as amended effective December 18, 1996 and
December 18, 1997.
* * * * *
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RURAL CELLULAR CORPORATION
ATTEST:
----------------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
---------------------
WITNESS:
-------------------- -----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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APPENDIX A
TO EMPLOYMENT AGREEMENT BETWEEN
RURAL CELLULAR CORPORATION AND ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
For the purposes of the Employment Agreement to which this Appendix is attached,
a "Change in Control" means the happening of any of the following:
(1) A majority of the directors of RCC shall be persons other than
persons:
(a) for whose election proxies shall have been solicited by the
Board, or
(b) who are then serving as directors appointed by the Board to fill
vacancies on the Board caused by death or resignation (but not by
removal) or to fill newly-created directorships,
(2) 30% or more of the outstanding voting stock of RCC is acquired or
beneficially owned (as defined in Rule 13d-3 under the Securities Exchange
Act of 1934, or any successor rule thereto) by any person (other than RCC
or a subsidiary of RCC) or group of persons acting in concert (other than
the acquisition and beneficial ownership by a parent corporation or its
wholly-owned subsidiaries, as long as they remain wholly-owned
subsidiaries, of 100% of the outstanding voting stock of RCC as a result
of a merger which complies with paragraph (3)(a)(ii) hereof in all
respects), or
(3) The shareholders of RCC approve a definitive agreement or plan
to:
(a) merge or consolidate RCC with or into another corporation
other than
(i) a merger or consolidation with a subsidiary of RCC, or
(ii) a merger in which:
(A) RCC is the surviving corporation,
(B) no outstanding voting stock of RCC (other than
fractional shares) held by shareholders immediately
prior to the merger is converted into cash,
securities, or other property (except: (1) voting
stock of a parent corporation owning directly, or
indirectly through wholly owned subsidiaries, both
beneficially and of record 100% of the voting stock
of RCC immediately after the merger; and (2) cash
upon the exercise by holders of voting stock of RCC
of statutory dissenters' rights),
A-1
(C) the persons who were the beneficial owners,
respectively, of the outstanding common stock and
outstanding voting stock of RCC immediately prior
to such merger beneficially own, directly or
indirectly, immediately after the merger, more than
70% of, respectively, the then outstanding common
stock and the then outstanding voting stock of the
surviving corporation or its parent corporation, and
(D) if voting stock of the parent corporation is
exchanged for voting stock of RCC in the merger, all
holders of any class or series of voting stock of RCC
immediately prior to the merger have the right to
receive substantially the same per share consideration
in exchange for their voting stock of RCC as all other
holders of such class or series,
(b) exchange, pursuant to a statutory exchange of shares of voting
stock of RCC held by shareholders of RCC immediately prior to the exchange,
shares of one or more classes or series of voting stock of RCC for cash,
securities, or other property,
(c) sell or otherwise dispose of all or substantially all of the
assets of the Company (in one transaction or a series of transactions), or
(d) liquidate or dissolve the Company.
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