EXHIBIT 10.16
AGREEMENT
THIS AGREEMENT is made and entered into as of the 30th day of
December 1998 by and between CT COMMUNICATIONS, INC. (the "Company"), a North
Carolina corporation, and XXXXXXXXX X. XXXXX ("Employee"), an individual
residing in _________ 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:
(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 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
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 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.
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.
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 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 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.
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.
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
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EMPLOYEE:
/s/ Xxxxxxxxx X. Xxxxx (Seal)
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Xxxxxxxxx X. Xxxxx
