AMENDMENT TO AGREEMENT
Exhibit
10(a)
THIS
AMENDMENT
(this
“Amendment”), effective as of May 8, 2006, by and between ALLTEL Corporation, a
Delaware corporation (the “Corporation”), and Xxx X. Xxxx (“Executive”), amends
that certain Agreement, dated as of July 26, 2001, by and between the
Corporation and Executive (the “Agreement”).
In
consideration of the mutual covenants and agreements herein contained, and
other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to amend the Agreement as follows:
1. Section
1(C) of the Agreement shall be replaced in its entirety with the
following:
(C) “Change
in Control” shall mean:
(1) Any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a
“Person”) becomes the beneficial owner (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (A) the
then-outstanding shares of common stock of the Corporation (the “Outstanding
Corporation Common Stock”) or (B) the combined voting power of the
then-outstanding voting securities of the Corporation entitled to vote generally
in the election of directors (the “Outstanding Corporation Voting Securities”);
provided,
however,
that,
for purposes of this Section 1(d), the following acquisitions shall not
constitute a Change in Control: (i) any acquisition directly from the
Corporation, (ii) any acquisition by the Corporation, (iii) any acquisition
by
any employee benefit plan (or related trust) sponsored or maintained by the
Corporation or any of its affiliates or (iv) any acquisition by any corporation
pursuant to a transaction that complies with Sections 1(C)(3)(A), 1(C)(3)(B)
and
1(C)(3)(C);
(2) Any
time
at which individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided,
however,
that
any individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Corporation’s stockholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual
or
threatened solicitation of proxies or consents by or on behalf of a Person
other
than the Board;
(3) Consummation
of a reorganization, merger, statutory share exchange or consolidation or
similar transaction involving the Corporation or any of its subsidiaries, a
sale
or other disposition of all or substantially all of the assets of the
Corporation, or the acquisition of assets or stock of another entity by the
Corporation or any of its subsidiaries (each, a “Business Combination”), in each
case unless, following such Business Combination, (A) all or substantially
all
of the individuals and entities that were the beneficial owners of the
Outstanding Corporation Common Stock and the
1
Outstanding
Corporation Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then-outstanding
shares of common stock (or, for a non-corporate entity, equivalent securities)
and the combined voting power of the then-outstanding voting securities entitled
to vote generally in the election of directors (or, for a non-corporate entity,
equivalent governing body), as the case may be, of the entity resulting from
such Business Combination (including, without limitation, an entity that, as
a
result of such transaction, owns the Corporation or all or substantially all
of
the Corporation’s assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership immediately prior to
such
Business Combination of the Outstanding Corporation Common Stock and the
Outstanding Corporation Voting Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Corporation or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then-outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior to the
Business Combination, and (C) at least a majority of the members of the board
of
directors (or, for a non-corporate entity, equivalent governing body) of the
entity resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement or of the action
of
the Board providing for such Business Combination; or
(4) Approval
by the stockholders of the Corporation of a complete liquidation or dissolution
of the Corporation.
2. The
following Section 1(O) shall be added to the Agreement and the Section
previously numbered Section 1(O) shall be renumbered as Section
1(P):
“Special
Payment Trigger” shall mean, at any time during the Executive’s Post-Retirement
Chairman Status, the occurrence of a Change in Control.
3. Section
3(B)(iv) of the Agreement is hereby amended by adding the following to the
end
of such Section:
“,
provided,
that,
notwithstanding any provision of this Agreement to the contrary, in the event
that the Chief Executive Officer of the Corporation as of the date hereof so
determines, following the Executive’s Post-Retirement Chairman Status, the
Corporation shall continue to provide to the Executive such office space and
secretarial support.”
4. The
following Section 18 shall be added to the Agreement:
Upon
the occurrence of a Special Payment Trigger, in lieu of any benefits
under Section 4 of this Agreement, the Executive shall be provided with a lump
sum cash payment in
an
amount equal to $750,000 (the “Special Payment”); provided,
that to
the extent required by Section 409A of the Code, such Special Payment Trigger
constitutes a “change in
control
event” within the meaning of Section 409A. If the Special Payment Trigger does
2
not
constitute a “change in control event” within the meaning of Section 409A, the
Special Payment shall be made within five days following the Executive’s Date of
Termination following the Special Payment Trigger; provided,
that,
to the extent required in order to comply with Section 409A of the Code, the
Special Payment shall instead be paid, with interest on any delayed payment
at
the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code
(“Interest”), on the first business day after the date that is six months
following the Executive’s “separation from service” within the meaning of
Section 409A.
5. As
amended hereby, the Agreement shall be and remain in full force and
effect.
IN
WITNESS WHEREOF,
the
parties have executed this Amendment as of the date first above
written.
| ALLTEL CORPORATION |
| By: /s/ Xxxxxxx X. Xxxxxx |
| EXECUTIVE: |
| /s/ Xxx X. Xxxx |
| Xxx X. Xxxx |
