FORM OF AMENDED AND RESTATED CHANGE OF CONTROL AGREEMENT
Exhibit
10.4(b)
FORM
OF
AMENDED
AND RESTATED
AMENDED AND RESTATED CHANGE OF
CONTROL AGREEMENT (this “Agreement”), dated effective January 1, 2008
(the “Restatement Date”), between CenturyTel, Inc., a Louisiana corporation (the
“Company”), and ___________ (the “Employee”).
W
I T N E S S E T H:
WHEREAS, the Company and
Employee entered into a change of control agreement (the “Original Agreement”)
dated effective as of February 22, 2000 (the “Agreement Date”);
WHEREAS, in connection with
entering into the Original Agreement, the Board of Directors of the Company (the
“Board”) determined that (i) it was in the best interests of the Company and its
shareholders to take steps designed to retain the services of the Employee and
to assure the full dedication of the Employee, free from personal distraction,
in the event of an actual or pending change of control of the Company, and (ii)
the Original Agreement accomplished these and other related objectives;
and
WHEREAS, in order to ensure
that the Original Agreement complies with Section 409A of the Internal Revenue
Code of 1986 and the regulations promulgated thereunder by the U.S. Department
of the Treasury (the “Treasury Regulations”), the Board has determined that it
is necessary and appropriate to amend and restate (i) various provisions in
Article III of the Original Agreement relating to the payment of benefits
thereunder and (ii) certain other related provisions and
definitions;
NOW, THEREFORE, the parties agree
to amend and restate the Original Agreement so that it reads in its entirety as
follows:
ARTICLE I
CERTAIN
DEFINITIONS
1.1 Affiliate. “Affiliate”
(and variants thereof) shall mean a Person that controls, or is controlled by,
or is under common control with, another specified Person, either directly or
indirectly.
1.2 Beneficial
Owner. “Beneficial Owner” (and variants thereof), with respect
to a security, shall mean a Person who, directly or indirectly (through any
contract, understanding, relationship or otherwise), has or shares (i) the power
to vote, or direct the voting of, the security, or (ii) the power to dispose of,
or direct the disposition of, the security.
1.3 Cause. (a) “Cause”
shall mean:
(i) conviction
of a felony;
(ii) habitual
intoxication during working hours;
(iii) habitual
abuse of or addiction to a controlled dangerous substance; or
(iv) the
willful and continued failure of the Employee to perform substantially the
Employee’s duties with the Company or its Affiliates (other than any such
failure resulting from incapacity due to physical or mental illness or the
Employee’s termination of employment for Good Reason) for a period of 15 days
after a written demand for substantial performance is delivered to the Employee
by the Board which specifically identifies the manner in which the Board
believes that the Employee has not substantially performed the Employee’s
duties.
(b) For
purposes of this Section 1.3, no act or failure to act on the part of the
Employee shall be considered “willful” unless it is done, or omitted to be done,
by the Employee in bad faith and without reasonable belief that the Employee’s
action or omission was in the best interests of the Company or its
Affiliates. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the instructions of a
senior officer of the Company or based upon the advice of counsel for the
Company or its Affiliates shall be conclusively presumed to be done, or omitted
to be done, by the Employee in good faith and in the best interests of the
Company or its Affiliates. Any termination by the Company or any of
its Affiliates of the Employee’s employment during the Employment Term (as
defined in Section 1.8) shall not be deemed to be for Cause unless the
Employee’s action or inaction meets the foregoing standard and until there shall
have been delivered to the Employee a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Employee and the Employee is given an
opportunity, together with counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Employee is guilty of the conduct
described in subparagraph (a) above, and specifying the particulars thereof in
detail.
(c) No
action or inaction shall be deemed the basis for Cause unless the Employee is
terminated therefor within 120 days after such action or omission is known to
the Chief Executive Officer of the Company.
(d) In
the event that the existence of Cause shall become an issue in any action or
proceeding between the Company and the Employee, the Company shall,
notwithstanding the finding of the Board referenced above, have the burden of
establishing that the actions or inactions deemed the basis for Cause did in
fact occur and do constitute Cause and that the Company has satisfied the
procedural requirements of this provision. The satisfaction of the
Company’s burden shall require clear and convincing evidence. Any
purported termination of employment of the Employee by the Company which does
not meet each and every substantive and procedural requirement of this provision
shall be treated for all purposes under this Agreement as a termination of
employment without Cause.
1.4 Change of
Control. “Change of Control” shall mean:
(a) the
acquisition by any Person of Beneficial Ownership of 30% or more of the
outstanding shares of the Company’s Common Stock, $1.00 par value per share (the
“Common Stock”), or 30% or more of the combined voting power of the Company’s
then outstanding securities entitled to vote generally in the election of
directors; provided,
however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control:
(i) any
acquisition (other than a Business Combination which constitutes a Change of
Control under Section 1.4(c) hereof) of Common Stock directly from the
Company,
(ii) any
acquisition of Common Stock by the Company or its subsidiaries,
(iii) any
acquisition of Common Stock by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, or
(iv) any
acquisition of Common Stock by any corporation pursuant to a Business
Combination that does not constitute a Change of Control under Section 1.4(c)
hereof; or
(b) individuals
who, as of the Restatement Date, 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 Restatement Date whose
election, or nomination for election by the Company’s shareholders, was approved
by a vote of at least two-thirds of the directors then comprising the Incumbent
Board shall be considered a member of the Incumbent Board, unless such
individual’s 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 Incumbent Board; or
(c) consummation
of a reorganization, share exchange, merger or consolidation (including any such
transaction involving any direct or indirect subsidiary of the Company), or sale
or other disposition of all or substantially all of the assets of the Company (a
“Business Combination”); provided, however, that in no
such case shall any such transaction constitute a Change of Control if
immediately following such Business Combination,
(i) the
individuals and entities who were the Beneficial Owners of the Company’s
outstanding common stock and the Company’s voting securities entitled to vote
generally in the election of directors immediately prior to such Business
Combination have direct or indirect Beneficial Ownership, respectively, of more
than 50% of the then outstanding shares of common stock, and more than 50% of
the combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, of the Post-Transaction Corporation
(as defined in Section 1.11 hereof), and
(ii) except
to the extent that such ownership existed prior to the Business Combination, no
Person (excluding the Post-Transaction Corporation and any employee benefit plan
or related trust of either the Company, the Post-Transaction Corporation or any
subsidiary of either corporation) Beneficially Owns, directly or indirectly, 20%
or more of the then outstanding shares of common stock of the corporation
resulting from such Business Combination or 20% or more of the combined voting
power of the then outstanding voting securities of such corporation,
and
(iii) at
least a majority of the members of the board of directors of the
Post-Transaction Corporation 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
(d) approval
by the shareholders of the Company of a complete liquidation or dissolution of
the Company.
1.5 Code. “Code” shall
mean the Internal Revenue Code of 1986, as amended from time to
time.
1.6 Company. “Company”
shall mean CenturyTel, Inc. and shall include any successor to or assignee of
(whether direct or indirect, by purchase, share exchange, merger, consolidation
or otherwise) all or substantially all of the assets or business of the Company
that assumes and agrees to perform this Agreement by operation of law or
otherwise.
1.7 Disability. “Disability”
shall mean a condition that would entitle the Employee to receive benefits under
the long-term disability insurance policy applicable to the Company’s officers
at the time either because the Employee is totally disabled or partially
disabled, as such terms are defined in the policy then in effect. If
the Company has no long-term disability plan in effect, “Disability” shall occur
if (a) the Employee is rendered incapable because of physical or mental illness
of satisfactorily discharging his duties and responsibilities to the Company for
a period of 90 consecutive days, (b) a duly qualified physician chosen by the
Company and acceptable to the Employee or his legal representatives so certifies
in writing, and (c) the Board determines that the Employee has become
disabled.
1.8 Employment
Term. “Employment Term” shall mean the period commencing on
the date of a Change of Control and ending on the third anniversary of such
date.
1.9 Good
Reason. (a) Any act or failure to act by the
Company or its Affiliates specified in this Section 1.9 shall constitute “Good Reason” unless the
Employee shall otherwise expressly agree in a writing that specifically refers
to this Section 1.9:
(i) Any
failure of the Company or its Affiliates to provide the Employee with a
position, authority, duties and responsibilities at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 180-day period immediately preceding the
Change of Control. The Employee’s position, authority, duties and
responsibilities after a Change of Control shall not be considered commensurate
in all material respects with the Employee’s position, authority, duties and
responsibilities prior to a Change of Control unless after the Change of Control
the Employee holds an equivalent position with, and exercises substantially
equivalent authority, duties and responsibilities on behalf of, either the
Post-Transaction Corporation or the Company;
(ii) The
assignment to the Employee of any duties inconsistent in any material respect
with the Employee’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3.1(b) of this Agreement, or any other action that results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith that
the Company remedies within 10 days after its receipt of written notice thereof
from the Employee;
(iii) A
material increase in the Employee’s responsibilities or duties without a
commensurate increase in total compensation;
(iv) Any
failure by the Company to comply with and satisfy Sections 4.1 (c) or (d) of
this Agreement;
(v) Any
failure by the Company or its Affiliates to comply with any of the other
provisions of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith that the Company remedies within
10 days after its receipt of written notice thereof from the
Employee;
(vi) Any
directive requiring the Employee to be based at any office or location other
than as provided in Section 3.1(b)(ii) hereof or requiring the Employee to
travel on business to a substantially greater extent than required immediately
prior to the Change of Control; or
(vii) Any
purported termination of the Employee’s employment otherwise than as expressly
permitted by this Agreement.
(b) For
purposes of this Section 1.9, any good faith determination of “Good Reason” made
by the Employee shall be conclusive and binding for all purposes, unless the
Company establishes by clear and convincing evidence that the Employee did not
have any reasonable basis for such determination.
(c) No
action or inaction by the Company shall be deemed the basis for Good Reason
unless the Employee asserts his right hereunder to terminate employment with
Good Reason prior to the first anniversary of the date on which the Employee
obtained actual knowledge of such act or omission. Except as
otherwise provided in the prior sentence, neither the Employee’s continued
employment with the Company or its Affiliates nor any delay in the Employee’s
assertion of his rights to terminate employment with Good Reason shall be deemed
to constitute a waiver of any of the Employee’s rights hereunder.
(d) Anything
in this Agreement to the contrary notwithstanding, a resignation by the Employee
for any reason during the 30-day period immediately following the first
anniversary of the Change of Control shall be deemed to be a termination for
Good Reason and the Employee shall be entitled to receive all payments and
benefits hereunder associated therewith.
1.10 Person. “Person”
shall mean a natural person or entity, and shall also mean the group or
syndicate created when two or more Persons act as a syndicate or other group
(including, without limitation, a partnership or limited partnership) for the
purpose of acquiring, holding, or disposing of a security, except that “Person”
shall not include an underwriter temporarily holding a security pursuant to an
offering of the security.
1.11 Post-Transaction
Corporation. Unless a Change of Control results from a
Business Combination (as defined in Section 1.4(c) hereof), “Post-Transaction
Corporation” shall mean the Company after the Change of Control. If a
Change of Control results from a Business Combination, “Post-Transaction
Corporation” shall mean the corporation or other entity resulting from the
Business Combination unless, as a result of such Business Combination, an
ultimate parent corporation controls such resulting entity, the Company or all
or substantially all of the Company’s assets either directly or indirectly, in
which case “Post-Transaction Corporation” shall mean such ultimate parent
corporation.
1.12 Specified
Employee. “Specified Employee” shall mean the Employee if the
Employee is a key employee under Treasury Regulations Section 1.409A-1(i)
because of final and binding action taken by the Board or its Compensation
Committee, or by operation of law or such regulation.
ARTICLE
II
STATUS
OF CHANGE OF CONTROL AGREEMENTS
Notwithstanding
any provisions thereof, as of the Restatement Date, this Agreement amends and
restates the Original Agreement and supersedes any and all prior agreements
between the Company and the Employee that provide for severance benefits in the
event of a Change of Control of the Company, as defined
therein.
ARTICLE
III
CHANGE
OF CONTROL BENEFITS
3.1 Employment Term and Capacity after
Change of Control. (a) This Agreement was
originally effective as of the Agreement Date and has been in effect
continuously thereafter. Commencing on January 1, 2002 and each January 1
thereafter, the term of this Agreement has been and shall automatically be
extended for one additional year unless, not later than June 30 of the preceding
year, the Company shall have given written notice that it does not wish to
extend this Agreement; provided, further, that,
notwithstanding any such non-extension notice by the Company, if a Change of
Control of the Company shall have occurred during the original or extended term
of this Agreement, this Agreement shall continue in effect through the third
anniversary of the Change of Control, subject to any earlier termination of the
Employee’s status as an employee pursuant to this Agreement; provided, further, that in no event
shall any termination of this Agreement result in any forfeiture of rights that
accrued prior to the date of termination.
(b) During
the Employment Term, the Company hereby agrees to continue the Employee in its
employ, subject to the terms and conditions of this Agreement. During
the Employment Term, (i) the Employee’s position (including status, offices,
titles and reporting requirements), authority, duties and responsibilities shall
be at least commensurate in all material respects with the most significant of
those held, exercised and assigned at any time during the 180-day period
immediately preceding the Change of Control and (ii) the Employee’s services
shall be performed during normal business hours at the location of the Company’s
principal executive office at the time of the Change of Control, or the office
or location where the Employee was employed immediately preceding the Change of
Control or any relocation of any such site to a location that is not more than
35 miles from its location at the time of the Change of Control. The
Employee’s position, authority, duties and responsibilities after a Change of
Control shall not be considered commensurate in all material respects with the
Employee’s position, authority, duties and responsibilities prior to a Change of
Control unless after the Change of Control the Employee holds an equivalent
position with, and exercises substantially equivalent authority, duties and
responsibilities on behalf of, either the Post-Transaction Corporation or the
Company.
3.2 Compensation and
Benefits. During the Employment Term, the Employee shall be
entitled to the following compensation and benefits:
(a) Base
Salary. The Employee shall receive an annual base salary
(“Base Salary”), which shall be paid in at least monthly
installments. The Base Salary shall initially be equal to 12 times
the highest monthly base salary that was paid or is payable to the Employee,
including any base salary which has been earned but deferred by the Employee, by
the Company and its Affiliates with respect to any month in the 12-month period
ending with the month that immediately precedes the month in which the Change of
Control occurs. During the Employment Term, the Employee’s Base
Salary shall be reviewed at such time as the Company undertakes a salary review
of his peer employees (but at least annually), and, to the extent that salary
increases are granted to his peer employees of the Company (or have been granted
during the immediately preceding 12-month period to his peer employees of any
Affiliate of the Company), the Employee shall be granted a salary increase
commensurate with any increase granted to his peer employees of the Company and
its Affiliates. Any increase in Base Salary shall not serve to limit
or reduce any other obligation to the Employee under this
Agreement. Base Salary shall not be reduced during the Employment
Term (whether or not any increase in Base Salary occurs) and, if any increase in
Base Salary occurs, the term Base Salary as utilized in this Agreement shall
refer to Base Salary as so increased from time to time.
(b) Annual
Bonus. In addition to Base Salary, the Employee shall be
awarded, for each fiscal year ending during the Employment Term, an annual cash
bonus (the “Bonus”) in an amount at least equal to the average of the annual
bonuses paid to the Employee with respect to the three fiscal years that
immediately precede the year in which the Change of Control occurs under the
Company’s annual bonus plan, or any comparable bonus under a successor plan;
provided, however, that
if the Company has never paid an annual bonus for a full year to the Employee,
the Employee shall be awarded a Bonus in an amount at least equal to the target
bonus for which the Employee is eligible for the fiscal year in which the Change
of Control occurs, assuming achievement at the target level of the objective
performance goals established with respect to such bonus and achievement of 100%
of any subjective performance goals or criteria otherwise applicable with
respect to such bonus. Each such Bonus shall be paid after the end of
the fiscal year and no later than the 15th day of
the third month of the fiscal year next following the fiscal year for which the
Bonus is awarded, unless the Employee shall timely elect to defer the receipt of
such Bonus pursuant to the CenturyTel, Inc. Supplemental Dollars & Sense
Plan. For purposes of determining the value of any annual bonuses
paid to the Employee in any year preceding the year in which the Change of
Control occurs, all cash and stock bonuses earned by the Employee shall be
valued as of the date of the grant.
(c) Fringe
Benefits. The Employee shall be entitled to fringe benefits
(including, but not limited to, any cash payments made in lieu thereof)
commensurate with those provided to his peer employees of the Company and its
Affiliates, but in no event shall such fringe benefits be less favorable than
the most favorable of those provided by the Company and its Affiliates for the
Employee at any time during the one-year period immediately preceding the Change
of Control or, if more favorable to the Employee, those provided generally at
any time after the Change of Control to his peer employees of the Company and
its Affiliates.
(d) Expenses. The
Employee shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Employee in accordance with the most favorable
agreements, policies, practices and procedures of the Company and its Affiliates
in effect for the Employee at any time during the one-year period immediately
preceding the Change of Control or, if more favorable to the Employee, as in
effect generally at any time thereafter with respect to his peer employees of
the Company and its Affiliates.
(e) Benefit
Plans. (i) The Employee shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies and programs
applicable generally to his peer employees of the Company and its Affiliates,
but in no event shall such plans, practices, policies and programs provide the
Employee with incentive opportunities (measured with respect to both regular and
special incentive opportunities to the extent that any such distinction is
applicable), savings opportunities and retirement benefit opportunities, in each
case, less favorable than the most favorable of those provided by the Company
and its Affiliates for the Employee under any agreements, plans, practices,
policies and programs as in effect at any time during the one-year period
immediately preceding the Change of Control or, if more favorable to the
Employee, those provided generally at any time after the Change of Control to
his peer employees of the Company and its Affiliates.
(ii) The
Employee and his family shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies and programs
provided by the Company and its Affiliates (including, without limitation,
medical, prescription drug, dental, disability, salary continuance, employee
life, group life, accidental death and travel accident insurance plans and
programs) to the extent applicable generally to his peer employees of the
Company and its Affiliates, but in no event shall such plans, practices,
policies and programs provide the Employee and his family with benefits, in each
case, less favorable than the most favorable of those agreements, plans,
practices, policies and programs in effect for the Employee and his family at
any time during the one-year period immediately preceding the Change of Control
or, if more favorable to the Employee and his family, those provided generally
at any time after the Change of Control to his peer employees of the Company and
its Affiliates.
(iii) Without
limiting the generality of the Company’s obligations under this subsection (e),
the Company shall comply with all of its obligations under the benefit plans,
practices, policies and programs of the Company and its Affiliates that arise in
connection with a Change of Control of the Company, including without limitation
all obligations that require the Company to (A) fully vest participants under
the Company’s qualified or non-qualified retirement plans, (B) fully vest
employees meeting certain age and service requirements with post-retirement
medical, dental and life insurance, or (C) extend the benefits described in
Section 3.5.
(f) Office and Support
Staff. The Employee shall be entitled to an office or offices
of a size and with furnishings and other appointments, and to secretarial and
other assistance, commensurate with those provided to his peer employees of the
Company and its Affiliates.
(g) Vacation. The
Employee shall be entitled to paid vacation in accordance with the most
favorable agreements, plans, policies, programs and practices of the Company and
its Affiliates as in effect for the Employee at any time during the one-year
period immediately preceding the Change of Control or, if more favorable to the
Employee, as in effect generally at any time thereafter with respect to his peer
employees of the Company and its Affiliates.
(h) Indemnification. If,
in connection with any agreement related to a transaction that will result in a
Change of Control of the Company, an undertaking is made to provide the Board
with rights to indemnification from the Company (or from any other party to such
agreement), the Employee shall, by virtue of this Agreement, be entitled to the
same rights to indemnification as are provided to the Board pursuant to such
agreement. Otherwise, the Employee shall be entitled to
indemnification rights on terms no less favorable to the Employee than those
available under any Company indemnification agreements or the articles of
incorporation, bylaws or resolutions of the Company at any time after the Change
of Control to his peer employees of the Company. Such indemnification
rights shall be with respect to all claims, actions, suits or proceedings to
which the Employee is or is threatened to be made a party that arise out of or
are connected to his services at any time prior to the termination of his
employment, without regard to whether such claims, actions, suits or proceedings
are made, asserted or arise during or after the Employment Term.
(i) Directors and Officers
Insurance. If, in connection with any agreement related to a
transaction that will result in a Change of Control of the Company, an
undertaking is made to provide the Board with continued coverage following the
Change of Control under one or more directors and officers liability insurance
policies, then the Employee shall, by virtue of this Agreement, be entitled to
the same rights to continued coverage under such directors and officers
liability insurance policies as are provided to the Board, and the Company shall
take any steps necessary to give effect to this provision. Otherwise,
the Company shall agree to cover the Employee under any directors and officers
liability insurance policies as are provided generally at any time after the
Change of Control to his peer employees of the Company.
3.3 Obligations upon Termination after a
Change of Control.
(a) Termination by Company for
Reasons other than Death, Disability or Cause or by the Employee for Good
Reason. If, after a Change of Control and during the
Employment Term, the Company or any of its Affiliates terminates the Employee’s
employment, as defined in Treasury Regulations 1.409A-1(h)(1) ("Separation from
Service"), other than for Cause, death or Disability, or the Employee terminates
employment for Good Reason, subject to Section 3.6,
(i) Subject
to the six-month delay rule in Section 3.3(d), if applicable, the Company shall
pay to the Employee in a lump sum in cash within five business days of the date
of termination an amount equal to three times the sum of (i) the amount of Base
Salary in effect pursuant to Section 3.2(a) hereof at the date of termination,
plus (ii) the greater of (x) the average of the annual bonuses paid or to be
paid to the Employee with respect to the immediately preceding three fiscal
years or (y) the target Bonus for which the Employee is eligible for the fiscal
year in which the date of termination occurs, assuming achievement at the target
level of the objective performance goals established with respect to such bonus
and achievement of 100% of any subjective performance goals or criteria
otherwise applicable with respect to such bonus; provided, however, that, if
the Employee has in effect a deferral election with respect to any percentage of
the annual bonus which would otherwise become payable with respect to the fiscal
year in which termination occurs, such lump sum payment shall be reduced by an
amount equal to such percentage times the bonus component of the lump sum
payment (which reduction amount shall be deferred in accordance with such
election);
(ii) the
Company shall pay to the Employee in a lump sum in cash within five business
days of the date of termination, but in no case later than the 15th day of the
third month following the end of the fiscal year of the Company in which the
termination occurs, an amount calculated by multiplying the annual bonus that
the Employee would have earned with respect to the entire fiscal year in which
termination occurs, assuming achievement at the target level of the objective
performance goals established with respect to such bonus and achievement of 100%
of any subjective performance goals or criteria otherwise applicable with
respect to such bonus, by the fraction obtained by dividing the number of days
in such year through the date of termination by 365; provided, however, that, if
the Employee has in effect a deferral election with respect to any percentage of
the annual bonus which would otherwise become payable with respect to the fiscal
year in which termination occurs, such lump sum payment shall be reduced by an
amount equal to such percentage times the lump sum payment (which reduction
amount shall be deferred in accordance with such election);
(iii) if,
at the date of termination, the Company shall not yet have paid to the Employee
(or deferred in accordance with any effective deferral election by the Employee)
an annual bonus with respect to a fully completed fiscal year, the Company shall
pay to the Employee in a lump sum in cash within five business days of the date
of termination but in no case after the 15th day of
the third month following the end of the fiscal year of the Company in which the
termination occurs, an amount determined as follows: (i) if the Board (acting
directly or indirectly through any committee or subcommittee) shall have already
determined the amount of such annual bonus, such amount shall be paid, and (ii)
if the Board shall not have already determined the amount of such annual bonus,
the amount to be paid shall be the greater of the amount provided under Section
3.2(b) hereof or the annual bonus that the Employee would have earned with
respect to such completed fiscal year, based solely upon the actual level of
achievement of the objective performance goals established with respect to such
bonus and assuming the achievement of 100% of any subjective performance goals
or criteria otherwise applicable with respect to such bonus; provided, however, that, if
the Employee has in effect a deferral election with respect to any percentage of
the annual bonus which would otherwise become payable with respect to such
completed fiscal year, such lump sum payment shall be reduced by an amount equal
to such percentage times the lump sum payment (which reduction amount shall be
deferred in accordance with such election); provided, further, that any
payment under this subsection (iii) (or any payment under any other provision of
this Agreement calculated by reference to prior or target bonus amounts) shall
be payable notwithstanding any provision to the contrary set forth in any bonus
plan or program of the Company;
(iv) for
a period of three years following the date of termination of employment, or such
longer period as may be provided by the terms of the appropriate plan, program,
practice or policy (the “Continuation Period”), the Company shall at its expense
continue on behalf of the Employee and his dependents and beneficiaries the life
insurance, disability, medical, dental and hospitalization benefits (including
any benefit under any individual benefit arrangement that covers medical, dental
or hospitalization expenses not otherwise covered under any general Company
plan) provided (x) to the Employee at any time during the one-year period prior
to the Change in Control or at any time thereafter or (y) to other
similarly-situated employees who continue in the employ of the Company or its
Affiliates during the Continuation Period. If the Employee is a
Specified Employee governed by Section 3.3(d), to the extent that any benefits
provided to the Employee under this Section 3.3(a)(iv) are taxable to the
Employee, then, with the exception of medical insurance benefits, the value of
the aggregate amount of such taxable benefits provided to the Employee pursuant
to this Section 3.3(a)(iv) during the six month period following the date of
termination shall be limited to the amount specified by Code Section
402(g)(1)(B) for the year in which the termination occurred. Employee
shall pay the cost of any benefits that exceed the amount specified in the
previous sentence during the six month period following the date of termination,
and shall be reimbursed in full by the Company during the seventh month after
the date of termination. The coverage and benefits (including
deductibles and costs) provided in this Section 3.3(a)(iv) during the
Continuation Period shall be no less favorable to the Employee and his
dependents and beneficiaries than the most favorable of such coverages and
benefits during any of the periods referred to in clauses (x) or (y) above;
provided, however, in
the event of the disability of the Employee during the Continuation Period,
disability benefits shall, to the maximum extent possible, not be paid for the
Continuation Period but shall instead commence immediately following the end of
the Continuation Period. For purposes of determining eligibility (but
not the time of commencement of benefits) of the Employee for retiree benefits
pursuant to such plans, practices, programs and policies, the Employee shall be
considered to have remained employed until three years after the date of
termination and to have retired on the last day of such period. The
Company’s obligation hereunder with respect to the foregoing benefits shall be
limited to the extent that the Employee obtains any such benefits pursuant to a
subsequent employer’s benefit plans, in which case the Company may reduce the
coverage of any benefits it is required to provide the Employee hereunder as
long as the aggregate coverages and benefits of the combined benefit plans is no
less favorable to the Employee than the coverages and benefits required to be
provided hereunder. At the end of the Continuation Period, the
Employee shall have assigned to him, at no cost and with no apportionment of
prepaid premiums, any assignable insurance owned by the Company that relates
specifically to the Employee unless such assignment is inconsistent with the
terms of any split dollar arrangement with the Employee. The Employee
will be eligible for coverage under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) at the end of the Continuation Period or earlier
cessation of the Company’s obligation under the foregoing provisions of this
Section 3.3(a)(iv) (or, if the Employee shall not be so eligible for any reason,
the Company will provide equivalent coverage).
(v) the
Company at its cost shall provide to the Employee outplacement assistance by a
reputable firm specializing in such services for the period beginning with the
termination of employment and ending upon the lapse of the Employment Term;
and
(vi) the
Company shall discharge its obligations under all other applicable sections of
this Article III, including Sections 3.4, 3.5, 3.6 and 3.7.
To the
extent that the amounts payable under Section 3.3(a) (iv) and (v), Section
3.6(g) and Section 3.7 are deemed to be reimbursements and other separation
payments under Treasury Regulations Section 1.409A-1(b)(9)(v), they shall not be
deemed to provide for the deferral of compensation governed by Code Section
409A. If they do constitute deferral of compensation governed by Code
Section 409A, they shall be deemed to be reimbursements or in-kind benefits
governed by Treasury Regulations Section 1.409A-3(i)(1)(iv). If the
previous sentence applies, (i) the amount of expenses eligible for reimbursement
or in-kind benefits provided during the Employee’s taxable year shall not affect
the expenses eligible for reimbursement or in-kind benefits in any other taxable
year, (ii) the reimbursement of an eligible expense must be made on or before
the last day of the Employee's taxable year following the taxable year in which
the expense was incurred and (iii) the right to reimbursement or in-kind
benefits shall not be subject to liquidation or exchange for another
benefit.
The
payments and benefits provided in this Section 3.3(a) and under all of the
Company’s employee benefit and compensation plans shall be without regard to any
plan amendment made after any Change of Control that adversely affects in any
manner the computation of payments and benefits due the Employee under such plan
or the time or manner of payment of such payments and benefits. After
a Change of Control no discretionary power of the Board or any committee thereof
shall be used in a way (and no ambiguity in any such plan shall be construed in
a way) which adversely affects in any manner any right or benefit of the
Employee under any such plan. If the Employee becomes entitled to
receive benefits under this Section 3.3(a), the Company shall not be required to
make any cash severance payment under any other severance or salary continuation
policy, plan, agreement or arrangement in favor of other officers or employees
of the Company or its Affiliates unless such other policy, plan, agreement or
arrangement expressly provides to the contrary in a provision that specifically
states that it is intended to override the limitation of this
sentence.
(b) Death; Disability;
Termination for Cause; or Voluntary Termination. If, after a
Change of Control and during the Employment Term, the Employee’s status as an
employee is terminated (i) by reason of the Employee’s death or Disability, (ii)
by the Company for Cause or (iii) voluntarily by the Employee other than for
Good Reason, this Agreement shall terminate without further obligation to the
Employee or the Employee’s legal representatives (other than the timely payment
or provision of those already accrued to the Employee, imposed by law or imposed
pursuant to employee benefit or compensation plans, programs, practices,
policies or agreements maintained by the Company or its
Affiliates).
(c) Notice of
Termination. Any termination by the Company for Cause or by
reason of the Employee’s Disability, or by the Employee for Good Reason, shall
be communicated by a Notice of Termination to the other party given in
accordance with Section 4.2 of this Agreement. For purposes of this
Agreement, a “Notice of Termination” means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employee’s employment under
the provision so indicated and (iii) if the effective date of the termination is
other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than 30 days after the giving of such notice),
provided that the effective date for any termination by reason of the Employee’s
Disability shall be the 30th day after the giving of such notice, unless prior
to such 30th day the Employee shall have resumed the full-time performance of
his duties. The failure by the Employee or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Cause, Disability or Good Reason shall not waive any right of the
Employee or the Company, respectively, hereunder or preclude the Employee or the
Company, respectively, from asserting such fact or circumstance in enforcing the
Employee’s or the Company’s rights hereunder.
(d) Six Month Delay for
Specified Employees. Notwithstanding any other provision
hereof, payments hereunder which constitute deferred compensation under Code
Section 409A and the Treasury Regulations thereunder and which are not exempt
from coverage by Code Section 409A and the Treasury Regulations thereunder shall
commence, if Employee is then a Specified Employee and payment is triggered by
his Separation from Service, on the first day of the seventh month following the
date of the Specified Employee’s Separation from Service, or, if earlier, the
date of death of the Specified Employee. On the first day of such
seventh month or on the first day of the month following the earlier death of
the Specified Employee, the Specified Employee or his estate or spouse, as the
case may be, shall be paid in a lump sum the amount that the Specified Employee
would have been paid hereunder over the preceding six months (or, if earlier,
the months preceding the date of death) but for the fact that he was a Specified
Employee. Nevertheless, for all other purposes of this Agreement, the
payments shall be deemed to have commenced on the date they would have had the
Employee not been a Specified Employee, and payment of any remaining benefits
shall be made as otherwise scheduled hereunder.
3.4 Accrued Obligations and Other
Benefits. It is the intent of this Agreement that upon
termination of employment for any reason following a Change of Control the
Employee or his legal representatives be entitled to receive promptly, and in
addition to any other benefits specifically provided, (a) the Employee’s Base
Salary through the date of termination to the extent not theretofore paid, (b)
any accrued vacation pay, to the extent not theretofore paid, and (c) any other
amounts or benefits required to be paid or provided or which the Employee or his
legal representatives are entitled to receive under any plan, program, policy,
practice or agreement of the Company, including without limitation all payments
required to be made under the Company’s supplemental executive retirement
plan.
3.5 Stock Options and Other
Incentives. The foregoing benefits provided for in this
Article III are intended to be in addition to the value or benefit of any stock
options, restricted stock, performance shares or similar awards, the
exercisability, vesting or payment of which is accelerated or otherwise enhanced
upon a Change of Control pursuant to the terms of any stock option, incentive or
other similar plan or agreement heretofore or hereafter adopted by the Company
or the Post-Transaction Corporation; provided, however, that, upon
any termination of the Employee other than for Cause within three years
following a Change of Control, all of the Employee’s then-outstanding vested
stock options, whether granted before or during the Employment Term, shall
remain exercisable until the later of the 190th day after the termination date
or the end of the exercise period provided for in the applicable option
agreement or plan as then in effect, but in no event shall such exercise period
continue after the date on which such options would have expired if the Employee
had remained an employee of the Company, the Post-Transaction Corporation or one
of their respective Affiliates.
3.6 Excise Tax
Provision. (a) Notwithstanding any other provisions
of this Agreement, if a Change of Control occurs during the original or extended
term of this Agreement, in the event that any payment or benefit received or to
be received by the Employee in connection with the Change of Control or the
termination of the Employee’s employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company, any
Person whose actions result in the Change of Control or any Person Affiliated
with the Company or such Person) (all such payments and benefits, including
without limitation the payments and benefits under Sections 3.3(a), 3.4(b),
3.4(c), 3.5 and 3.7 hereof, being hereinafter called “Payments”) would be
subject (in whole or in part) to an 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”), the Company shall
pay to the Employee at the time specified in paragraph (d) below an additional
amount (the “Gross-up Payment”) such that the net amount retained by the
Employee, after deduction of any Excise Tax on the Payments and all taxes
(including any interest or penalties imposed with respect to such taxes),
including without limitation any federal, state and local income or payroll tax
and any Excise Tax, imposed upon the Gross-up Payment provided for by this
paragraph (a), but before deduction of any federal, state and local income or
payroll tax on the Payments, shall be equal to the
Payments. Notwithstanding any other provision hereof, the Gross-Up
Payments (including
any additional Gross-up Payment pursuant to Section 3.6(e)) must be paid no
later than the end of the Employee’s taxable year next following the Employee’s
taxable year in which the Employee remits the related taxes, as required by
Treasury Regulations Section 1.409A-3(i)(1)(v).
(b) For
purposes of determining whether any of the Payments and the Gross-up Payment
(collectively, the “Total Payments”) will be subject to the Excise Tax and the
amount of such Excise Tax, (i) the Total Payments shall be treated as “parachute
payments” within the meaning of section 280G(b)(2) of the Code, and all “excess
parachute payments” within the meaning of section 280G(b)(1) shall be treated as
subject to the Excise Tax, except to the extent that in the opinion of tax
counsel selected by the Company’s independent auditors (“Auditors”) and
reasonably acceptable to the Employee (“Tax Counsel”) such Total Payments (in
whole or in part) do not constitute “parachute payments”, or such “excess
parachute payments” (in whole or in part) are not subject to the Excise Tax and
(ii) the value of any non-cash benefits or any deferred payment or benefit shall
be determined by the Auditors in accordance with the principles of sections
280G(d)(3) and (4) of the Code. The Auditors shall perform the
calculations in conformance with the foregoing provisions and within 15 business
days of the date that any Payments are made under this Agreement shall provide
the Employee with a detailed written statement setting forth the manner in which
the Total Payments are calculated and the basis for such calculations, including
without limitation any opinions or other advice the Company has received from
Tax Counsel, the Auditors or other advisors or consultants (and any such
opinions or advice which are in writing shall be attached to the
statement).
(c) For
purposes of determining the amount of the Gross-up Payment, the Employee shall
be deemed to pay federal income taxes at the highest marginal rates of federal
income taxation applicable to individuals in the calendar year in which the
Gross-up Payment is to be made and state and local income taxes at the highest
marginal rates of taxation in the state and locality of the Employee’s residence
in the calendar year in which the Gross-up Payment is to be made, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes, taking into account any limitations applicable to
individuals subject to federal income tax at the highest marginal
rates.
(d) The
initial Gross-up Payment, if any, as determined pursuant to this Section 3.6,
shall be paid to the Employee within five days of the receipt of the Auditors’
determination. If the Auditors determine that no Excise Tax is
payable by the Employee, the Company shall cause the Auditors to furnish the
Employee with an opinion that failure to report any Excise Tax on the Employee’s
applicable federal income tax return would not result in the imposition of a
negligence or similar penalty.
(e) If
it is established pursuant to a final determination of a court or Internal
Revenue Service proceeding or the written opinion of Tax Counsel that the Excise
Tax is less than the amount taken into account hereunder at the time the
Gross-up Payment is made, the Employee shall repay to the Company within 30 days
of the Employee’s receipt of notice of such final determination or opinion the
portion of the Gross-up Payment attributable to such reduction (plus the portion
of the Gross-up Payment attributable to the Excise Tax, federal, state and local
income tax and Excise Tax imposed on the portion of the Gross-up Payment being
repaid by the Employee if such repayment results in a reduction of Excise Tax or
federal, state and local income tax), plus interest on the amount of such
repayment at the rate provided in section 1274(b)(2)(B) of the
Code. Notwithstanding the foregoing, in the event any portion of the
Gross-up Payment to be refunded to the Company has been paid to any federal,
state and local tax authority, the payment thereof (and related amounts) shall
not be required until actual refund or credit of such portion has been made to
the Employee, and interest payable to the Company shall not exceed the interest
received or credited to the Employee by such tax authority for the period that
it held such portion. The Employee and the Company shall endeavor to
mutually agree upon the course of action to be pursued (and the method of
allocating the expense thereof) if the Employee’s claim for refund or credit is
denied. If it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding or the written opinion of Tax
Counsel that the Excise Tax exceeds the amount taken into account hereunder at
the time the Gross-up Payment is made (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-up
Payment), the Company shall make an additional Gross-up Payment in respect of
such excess (plus any interest or penalties payable with respect to such
excess), as determined by the Auditors, within 30 days of the Company’s receipt
of notice of such final determination or opinion.
(f) In
the event of any controversy with the Internal Revenue Service (or other taxing
authority) with regard to the Excise Tax, the Employee shall permit the Company
to control issues relating to the Excise Tax (at its expense), provided that
such issues do not potentially materially adversely affect the Employee, but the
Employee shall control any other issues. In the event that the issues
are interrelated, the Employee and the Company shall in good faith cooperate so
as not to jeopardize resolution of either issue, but if the parties cannot
agree, the Employee shall make the final determination with regard to the
issues. In the event of any conference with any taxing authority as
to the Excise Tax or associated income taxes, the Employee shall permit a
representative of the Company to accompany the Employee, and the Employee and
the Employee’s representative shall cooperate with the Company and its
representative. The Company and the Employee shall promptly deliver
to each other copies of any written communications, and summaries of any verbal
communications, with any taxing authority regarding the Excise Tax covered by
this Section 3.6.
(g) The
Company shall be responsible for all charges of the Tax Counsel and the
Auditors. The timing of any payments pursuant to this subsection (g)
shall be governed by Section 3.3(a)
(h) Notwithstanding
any other provision in this Agreement to the contrary, if it is determined by
the Auditors that the gross-up provisions in this Section 3.6 as they relate to
the accelerated vesting of nonqualified stock options or restricted stock issued
by the Company would be the sole reason precluding the use by the Company of the
pooling of interests method of accounting, then the tax gross-up provisions of
this Section 3.6 shall not apply to such nonqualified stock options or
restricted stock as the case may be, unless the Gross-up Payment can be altered,
modified or delayed to allow it to be paid without precluding the use of the
pooling of interest method of accounting. The Company will use its
best efforts to alter, modify, or delay the payment so that the Gross-up Payment
can be made.
3.7 Legal Fees. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and other expenses (including expert witness and accounting fees)
which the Employee may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company, the Employee or others of the validity
or enforceability of, or liability under, any provision of this Agreement
(including as a result of any contest by the Employee about the amount or timing
of any payment pursuant to this Agreement) or which the Employee may reasonably
incur in connection with any tax audit or proceeding to the extent attributable
to the application of section 4999 of the Code to any payment or benefit
provided under this Agreement. The timing of any payments pursuant to
this Section 3.7 shall be governed by Section 3.3(a).
3.8 Set-Off;
Mitigation. After a Change of Control, the obligations of the
Company and its Affiliates to make the payments provided for in this Agreement
and otherwise to perform its obligations hereunder shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right or action which
the Company or its Affiliates may have against the Employee or others other than
the Company’s right to reduce welfare benefits under the circumstances described
in Section 3.3(a)(iv). It is the intent of this Agreement that in no
event shall the Employee be obligated to seek other employment or take any other
action to mitigate the amounts or benefits payable to the Employee under any of
the provisions of this Agreement.
3.9 Certain Pre-Change-of-Control
Terminations. Notwithstanding any other provision of this
Agreement, the Employee’s employment shall be deemed to have been terminated
following a Change of Control by the Company without Cause (and the Employee
shall be entitled to receive all payments and benefits associated
therewith) if the Employee’s employment is terminated by the Company or any of
its Affiliates without Cause prior to a Change of Control (whether or not a
Change of Control actually occurs) and such termination (i) was at the request
or direction of a third party who has taken steps designed to effect a Change of
Control or otherwise arose in connection with or in anticipation of a Change of
Control or (ii) occurred after discussions with a third party regarding a
possible Change of Control transaction commenced and such discussions produced
(whether before or after such termination) either a preliminary or definitive
agreement with respect to such a transaction or a public announcement of the
pending transaction (whether or not a Change of Control actually
occurs). If the Employee takes the position that the foregoing
sentence applies and the Company disagrees, the Company shall have the burden of
proof in any such dispute.
ARTICLE
IV
MISCELLANEOUS
4.1 Binding Effect;
Successors.
(a) This
Agreement shall be binding upon and inure to the benefit of the Company and any
of its successors or assigns.
(b) This
Agreement is personal to the Employee and shall not be assignable by the
Employee without the consent of the Company (there being no obligation to give
such consent) other than such rights or benefits as are transferred by will or
the laws of descent and distribution, which shall inure to the benefit of the
Employee’s legal representatives.
(c) The
Company shall require any successor to or assignee of (whether direct or
indirect, by purchase, share exchange, merger, consolidation or otherwise) all
or substantially all of the assets or businesses of the Company (i) to assume
unconditionally and expressly this Agreement and (ii) to agree to perform or to
cause to be performed all of the obligations under this Agreement in the same
manner and to the same extent as would have been required of the Company had no
assignment or succession occurred, such assumption to be set forth in a writing
reasonably satisfactory to the Employee.
(d) The
Company shall also require all entities that control or that after the
transaction will control (directly or indirectly) the Company or any such
successor or assignee to agree to cause to be performed all of the obligations
under this Agreement, such agreement to be set forth in a writing reasonably
satisfactory to the Employee.
(e) The
obligations of the Company and the Employee which by their nature may require
either partial or total performance after the expiration of the term of the
Agreement shall survive such expiration.
4.2 Notices. All
notices hereunder must be in writing and shall be deemed to have been given upon
receipt of delivery by: (a) hand (against a receipt therefor), (b) certified or
registered mail, postage prepaid, return receipt requested, (c) a nationally
recognized overnight courier service (against a receipt therefor) or (d)
telecopy transmission with confirmation of receipt. All such notices
must be addressed as follows:
If to the
Company, to:
CenturyTel,
Inc.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General
Counsel
If to the
Employee, to:
_________________.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or, if
the Employee is no longer employed at such address,
to the
Employee’s last known principal residence reflected in
the
Company’s records)
or such
other address as to which any party hereto may have notified the other in
writing.
4.3 Governing Law. This
Agreement shall be construed and enforced in accordance with and governed by the
internal laws of the State of Louisiana without regard to principles of conflict
of laws.
4.4 Withholding. The
Employee agrees that the Company has the right to withhold, from the amounts
payable pursuant to this Agreement, all amounts required to be withheld under
applicable income or employment tax laws, or as otherwise stated in documents
granting rights that are affected by this Agreement.
4.5 Amendment and Compliance with
Law. No provision of this Agreement may be modified or amended
except by an instrument in writing signed by both
parties. Notwithstanding any other provision of this Agreement, it is
the intention of the parties to this Agreement that no payment or entitlement
pursuant to this Agreement will give rise to any adverse tax consequences to the
Employee under Code Section 409A and Treasury Regulations and other interpretive
guidance issued thereunder, including that issued after the date hereof
(collectively, "Section 409A"). This Agreement and any amendments hereto shall
be interpreted to that end and (i) to the maximum extent permitted by law, no
effect shall be given to any provision herein, any amendment hereto or any
action taken hereunder in a manner that reasonably could be expected to give
rise to adverse tax consequences under Section 409A and (ii) the parties shall
take any corrective action reasonably within their control that are necessary to
avoid such adverse tax consequences.
4.6 Severability. If
any term or provision of this Agreement, or the application thereof to any
person or circumstance, shall at any time or to any extent be invalid, illegal
or unenforceable in any respect as written, the Employee and the Company intend
for any court construing this Agreement to modify or limit such provision so as
to render it valid and enforceable to the fullest extent allowed by
law. Any such provision that is not susceptible of such reformation
shall be ignored so as to not affect any other term or provision hereof, and the
remainder of this Agreement, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable, shall not be affected thereby and shall be valid and
enforced to the fullest extent permitted by law.
4.7 Waiver of
Breach. Except as expressly provided herein to the contrary,
the failure by any party to enforce any of its rights hereunder shall not be
deemed to be a waiver of such rights, unless such waiver is an express written
waiver. The waiver by either party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach thereof.
4.8 Remedies Not
Exclusive. No remedy specified herein shall be deemed to be
such party’s exclusive remedy, and accordingly, in addition to all of the rights
and remedies provided for in this Agreement, the parties shall have all other
rights and remedies provided to them by applicable law, rule or regulation,
including without limitation the right to claim interest with respect to any
payment not timely made hereunder.
4.9 Company’s Reservation of
Rights. The Employee acknowledges and understands that (i) the
Employee is employed at will by either the Company or one of its Affiliates (the
“Employer”), (ii) the Employee serves at the pleasure of the board of directors
of the Employer, and (iii) the Employer has the right at any time to terminate
the Employee’s status as an employee, or to change or diminish his status during
the Employment Term, subject to the rights of the Employee to claim the benefits
conferred by this Agreement. Notwithstanding any other provisions of
this Agreement to the contrary, this Agreement shall not entitle the Employee or
his legal representatives to any severance or other benefits of any kind prior
to a Change of Control or to any such benefits if Employee is not employed by
the Company or one of its Affiliates on the date of a Change of Control, except
in each case for those rights afforded under Section 3.9.
4.10 Non-exclusivity of
Rights. Subject to Section 4.9, nothing in this Agreement
shall prevent or limit the Employee’s continuing or future participation in any
plan, program, policy or practice provided by the Company or any of its
Affiliates and for which the Employee may qualify, nor shall anything herein
limit or otherwise restrict such rights as the Employee may have under any
contract or agreement with the Company or any of its Affiliates. The
Employee shall not be obligated to furnish a release of any rights or claims
against the Company or its Affiliates as a condition of receiving benefits
hereunder.
4.11 Confidentiality. Upon
receipt of the payments or benefits contemplated by Section 3.3 hereof, the
Employee agrees to refrain for a period of three years from divulging any
non-public, confidential or proprietary information concerning the Company or
its Affiliates to any Person other than the Company, its Affiliates or their
respective officers, directors or advisors, provided that this obligation shall
lapse prior to the end of such three-year period with respect to any information
that (i) is or becomes generally available to the public other than as a result
of a breach of this Section 4.11, (ii) is or becomes available to the Employee
on a non-confidential basis from a source other than the Company or its
representatives, provided that such source is not known by the Employee to have
violated any confidentiality agreement with the Company in connection with such
disclosure, or (iii) is acquired or developed independently by the Employee
without violating this Section 4.11.
4.12 Demand for
Benefits. Unless otherwise provided herein, the payment or
payments due hereunder shall be paid to the Employee without the need for
demand, and to a beneficiary upon the receipt of the beneficiary’s address and
social security number. Nevertheless, the Employee or a Person
claiming to be a beneficiary who claims entitlement to a benefit can file a
claim for benefits hereunder with the Company. Unless otherwise
provided herein, the Company shall accept or reject the claim within five
business days of its receipt. If the claim is denied, the Company
shall give the reason for denial in a written notice that refers to the
provision of this Agreement that forms the basis of the denial. If
any additional information or material is necessary to perfect the claim, the
Company will identify these items in writing and explain why such additional
information is necessary.
4.13 Authority. The
Company represents and warrants that (i) the Original Agreement was duly
authorized by the Shareholder Relations Committee of the Board and the
Compensation Committee of the Board on February 21, 2000 and by the Board on
February 22, 2000, (ii) this Agreement was duly authorized by the Compensation
Committee of the Board on October 17, 2007 and by the Board on November 14,
2007, and (iii) no other corporate proceedings are necessary to authorize the
Company’s execution, delivery and performance of this Agreement.
4.14 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
4.15 Interpretation. Any
reference to any section of the Code or the Treasury Regulations shall be deemed
to also refer to any successor provisions thereto.
IN WITNESS WHEREOF, the
Company and the Employee have caused this Amended and Restated Change in Control
Agreement to be executed as of the Restatement Date.
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CenturyTel,
Inc.
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By:______________________________
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▇▇▇▇
▇. Post
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Chairman
of the Board,
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President
and Chief Executive Officer
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EMPLOYEE:
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__________________________________
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