Exhibit 10.19
CHANGE OF CONTROL
AGREEMENT
Originally Entered Into on
March 30, 2005
Amended and Restated
November 29, 2007
This Change of Control Agreement (this
“Agreement”) which was originally entered into as of
the 30th day of March , 2005, and hereby amended and
restated as of November 29, 2007, by and between HickoryTech
Corporation, a Minnesota corporation (the “Company”),
and Mary T. Jacobs (the “Executive”).
WITNESSETH:
WHEREAS, the Executive will devote substantial
skill and effort to the affairs of the Company, and the Board of
Directors of the Company desires to recognize the significant
personal contribution that the Executive will make to further the
best interests of the Company; and
WHEREAS, it is desirable and in the best
interests of the Company and its stockholders to continue to obtain
the benefits of the Executive’s services and attention to the
affairs of the Company, and
WHEREAS, it is desirable and in the best
interests of the Company and its stockholders to provide inducement
for the Executive (1) to remain in the service of the Company
in order to facilitate an orderly transition in the event of a
change in control of the Company and (2) to remain in the
service of the Company in the event of any threatened or
anticipated change in control of the Company; and
WHEREAS, it is desirable and in the best
interests of the Company and its stockholders that the Executive be
in a position to make judgments and take actions with respect to a
proposed change in control of the Company without regard to the
possibility that his or her employment may be terminated without
compensation in the event of certain changes in control of the
Company; and
WHEREAS, the Executive desires to be protected
in the event of certain changes in control of the Company;
and
WHEREAS, for the reasons set forth above, the
Company and the Executive desire to enter into this
Agreement.
NOW, THEREFORE, in consideration of the facts
recited above and the mutual covenants and agreements contained
herein, the Company and the Executive agree as follows:
1.
Right to Payment . If (A) the Executive’s
employment with the Company or its Successor is terminated within
three (3) years following an Event (as defined in Paragraph 2
below) for any reason other than a reason specified in Paragraph
3(a) through (d) below, or (B) the Executive
voluntarily terminates his or her employment within a period of
thirty (30) days following the first anniversary of an Event, then
the Executive shall be entitled to receive the Benefits set out in
Paragraph 4 below. If a subsequent Event occurs, and if the
Executive is an employee of the Company or its Successor, without
limiting any rights the Executive may have, Executive shall have
all rights provided by the first sentence of this Paragraph 1
relating to such subsequent event.
2.
Change of Control Events . An “Event”
shall be deemed to have occurred if:
(a)
A majority of the directors of the Company shall be persons other
than persons
(1)
for whose election proxies shall have been solicited by the Board
of Directors of the Company; or
(2)
who are then serving as directors and who were initially appointed
or elected by the Board of Directors to fill vacancies on the Board
of Directors caused by death or resignation (but not by removal),
or to fill newly created directorships created by the Board of
Directors;
provided, however, that a person shall not be
deemed to be a director subject to clause (1) or (2), above,
if his or her initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the
threatened election or removal of directors (or other actual or
threatened solicitation of proxies or consents) by or on behalf of
any person other than the Board of Directors of the Company;
or
1
(b)
30% or more of the outstanding voting stock of the Company or all
or substantially all of the assets or stock of the Company is
acquired or beneficially owned (as defined in Rule 13d-3 under
the Securities and Exchange Act of 1934, as amended, or any
successor rule thereto), directly or indirectly, by any Person
(other than by the Company, a subsidiary of the Company, an
employee benefit plan (or related trust) sponsored or maintained by
the Company or one or more of its subsidiaries, or by the Employee
or a group of persons, including the Employee, acting in concert)
or group of Persons, acting in concert, whether by acquisition of
assets, merger, consolidation, statutory share exchange (other than
a merger, consolidation or statutory share exchange described in
clause (c)(i) or (ii), below), tender offer, exchange offer,
or otherwise;
(c)
The Company is merged into or consolidated with another corporation
(other than a subsidiary of the Company) or a statutory share
exchange for the Company’s outstanding voting stock of any
class is consummated unless (i) a majority of the voting power
of the voting stock of the surviving corporation is, immediately
following the merger, consolidation or statutory share exchange,
beneficially owned, directly or indirectly, by the Employee (or a
group of Persons, including the Employee, acting in concert) or
(ii) immediately following the merger, consolidation or
statutory share exchange, more than 70% of the voting power of the
voting stock of the surviving corporation is beneficially owned,
directly or indirectly, by the persons who beneficially owned
voting stock of the Company immediately prior to such merger,
consolidation or statutory share exchange in substantially the same
proportion as their ownership of the voting stock of the Company
immediately prior to such merger, consolidation or statutory share
exchange; or
(d)
The shareholders of the Company approve the complete liquidation or
dissolution of the Company.
3.
Termination Not Entitling Executive to Benefits . The
Executive shall not be entitled to the Benefits set out in
Paragraph 4 if his or her employment is terminated during the three
(3) year period following an Event for any of the following
reasons:
(a)
Death . The Executive’s death.
(b)
Disability . The Executive’s disability.
“Disability” shall mean the inability of the Executive
to perform the duties and responsibilities of his or her employment
by reasons of illness or other physical or mental impairment or
condition, if such inability continues for an uninterrupted period
of ninety (90) calendar days or more. A period of inability shall
be “uninterrupted” unless and until the Executive is no
longer considered disabled by the Company’s Long Term
Disability Insurer.
(1)
The determination of whether the Executive is suffering from a
“disability” as defined herein shall be made. The
determination of whether the Executive is disabled shall be on the
same basis as the Company provided Long-Term Disability benefit,
which is a fully insured benefit provided by an independent third
party. If the Executive meets the disability criteria for long term
disability benefits under this Company provided benefit, the
Executive will also be considered disabled under this
Agreement.
(2)
The Executive agrees to make himself or herself available for and
to submit to examinations by such physicians as may be requested by
the Company or the Company’s Long Term Disability Insurer.
The Executive’s failure to submit to examinations by such
physicians as may be requested shall disqualify Executive from
receiving Benefits under this Agreement.
(c)
Voluntary Termination . Except as provided in paragraph
1(B), the Executive’s voluntary retirement or voluntary
termination of employment. However, the Executive’s
retirement or termination of employment shall not be considered
voluntary if, following the Event and subject to the provisions for
notification set forth below, one or more of the following has
occurred without Executive’s express written consent and
results in a material negative change to Executive:
(1)
There has been a failure to provide the Executive with
substantially equivalent reporting responsibilities, titles,
offices or positions, or Executive has been removed from, or has
not been re-elected to, any of such positions, which has the effect
of materially diminishing the Executive’s responsibility or
authority;
2
(2)
There has been a failure to provide the Executive with:
(a) the same base salary, or (b) substantially equivalent
(or greater) total salary opportunity, or (c) employee
benefits which are, in the aggregate, substantially equivalent to
those provided to the Executive at the time of the Event;
(3)
There has been a failure to provide the Executive with
substantially equivalent office space or administrative support
or
(4)
Executive has been required to perform his or her services in a
location that is more than fifty (50) miles from the
Executive’s regularly assigned office location at the time of
the Event, or Executive is required to undertake substantially more
job -related traveling.
In
the event of an occurrence of the type enumerated in subparagraphs
(1) through (4) above, Executive shall, within ten
(10) days following Executive’s actual knowledge of such
occurrence, notify the Company in writing of the specific
occurrence which Executive believes would render his/her retirement
or termination not voluntary and, following receipt of such notice,
the Company shall be afforded a period of thirty (30) days within
which to remedy such occurrence. In the event that Executive
fails to provide such notice or to afford such opportunity to
remedy the occurrence, or in the event the Company does remedy the
occurrence within 30 days, then none of the occurrences specified
in subparagraphs (1) through (4) above may be relied upon
by Executive to characterize his/her retirement or termination as
not voluntary.
(d)
Involuntary Termination For Cause . The Executive’s
involuntary termination “for cause.” “For
cause” shall mean:
(1)
A persistent f
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