[D&E COMMUNICATIONS, INC.]
May 13, 2009
Re: Transition Award
Program
Dear :
D&E Communications, Inc. (the
“ Company ”) has approved a Transition Award
Program (the “ Program ”) for its key employees
in connection with a possible Change of Control (as defined below).
You have been selected to participate in the Program as an employee
whose continued performance and contributions to the Company are
critical to the ongoing effective management of the Company’s
business and the potential success of a Change of Control. The
announced merger transaction between the Company and Windstream,
upon closing, would constitute a Change of Control for purposes of
this Program.
This letter agreement (the “
Agreement ”) is in addition to, and not in
substitution for, any other agreements between you and the Company
or any of the Company’s subsidiaries and any other pay or
benefits that you are eligible to earn.
The details of the Program are set
forth below.
Transition Payment
Amount
Subject to the terms and conditions
described below, you will be eligible to receive two equal cash
payments (each, a “ Transition Payment ”), each
in the amount of $______, and totaling to $__________.
The Transition Payments are subject
to all applicable tax withholding requirements, as determined by
the Company.
The Transition Payments will not be
considered “earnings” or “compensation”
under any Company benefit plan, including, without limitation, for
purposes of determining your bonus under any other bonus program or
pension computation, unless the benefit plan has an explicit
definition of such concepts that clearly includes all cash bonus
payments.
Timing and Form of
Payment
Subject to the terms and conditions
that follow, the Transition Payments shall vest and become payable
on the following dates (each, a “ Payment Date
”): the first Transition Payment at thirty (30) days after
Closing and the second Transition Payment
on the earlier of (i) termination of
employment due to death, disability, or by the Company or its
successor without Cause or (ii) completion by the Company’s
successor of the customer billing conversion from the
Company’s billing system to the successor’s billing
system. Each Transition Payment will be actually paid on the
applicable Payment Date, or as soon thereafter as practicable, but
in no event later than thirty (30) days after the Payment
Date.
Terms and
Conditions
In order to receive a Transition
Payment, you must fully comply with each of the following terms and
conditions:
1.
(a) You must continue your active
employment with the Company until the applicable Payment Date. In
the event of the termination of your employment by reason of death
or disability, as defined under a Company-sponsored disability plan
applicable to your employment, or the termination of your
employment by the Company without Cause (as defined in (c) below)
prior to the Payment Date, you shall be entitled to receive the
Transition Payment as if your employment had continued until such
date, and the payment shall be made as soon as practicable after
the termination date rather than on the Payment Date, but in no
event later than thirty (30) days after the termination date. If
you retire or elect to terminate your employment for any reason
prior to the Payment Date, or if the Company terminates your
employment for Cause prior to the Payment Date, you will not
receive the Transition Payment.
(b) This Agreement does not
constitute an employment contract, nor does it entitle you to be or
remain employed by the Company for any period of time. You are on
the date of this Agreement, and execution of this Agreement does
not in any way change your status as, an “at-will”
employee.
(c) “Cause” shall mean
(a) the failure by you to substantially perform your duties
hereunder after notice from the Company and a failure to cure such
violation within thirty (30) days of the date of said notice, (b)
your dishonesty or gross negligence in the performance of your
duties; (c) your material violation of the Company’s Code of
Business Conduct and Ethics; (d) your use of alcohol which
interferes with the performance of your duti
