Exhibit 10.3
AMENDMENT TO THE EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
FIRST: Article I of the Plan is amended by adding the following
definition as Section 1.04:
Change in Control means:
(i) any "person," as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (other than the Company, any
trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their
ownership of stock of the Company), is or becomes the
owner or "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of
Company securities representing more than 30% of the
combined voting power of the then outstanding securities;
(ii) during any period of two consecutive years (not
including any period prior to the execution of this
Agreement), individuals who at the beginning of such
period constitute the Company's board of directors (the
"Board"), and any new director (other than a director
designated by a person who has entered into an agreement
with the Company to effect a transaction described in
clause (i), (iii) or (iv) of this Section) whose election
by the Board or nomination for election by the Company's
stockholders was approved by a vote of a majority of the
directors then still in office who either (l) were
directors at the beginning of such period or (2) were so
elected or nominated with such approval, cease for any
reason to constitute at least a majority of the Board;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other Company and
such merger or consolidation is consummated, other than
(l) a merger or consolidation which would result in the
voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined
voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such
merger or consolidation or (2) a merger or consolidation
effected to implement a recapitalization of the Company
(or similar transaction) in which no "person" (as
hereinabove defined) acquires more than 30% of the
combined voting power of the Company's then outstanding
securities; or
CFW COMMUNICATIONS COMPANY FORM 10-K
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for
the sale or disposition by the Company of all or
substantially all of the Company's assets and such
liquidation or sale of assets is consummated.
SECOND: Article I is further amended by renumbering Sections 1.04
and 1.05 as Sections 1.05 and 1.06, respectively.
THIRD: Article I is further amended by adding the following
definition as Section 1.07:
Control Change Date means the date on which a Change in
Control occurs. If a Change in Control occurs on account
of a series of events, the "Control Change Date" shall be
the date on which the last of such events occurs.
FOURTH: Article I is further amended by renumbering Sections 1.06
through 1.16 as Sections 1.08 through 1.18, respectively.
FIFTH: Article I is further amended by adding the following
sentence to Section 1.18 (formerly Section 1.16):
Years of Service also includes any period in which a
Participant is entitled to receive severance pay under the
CFW Communications Company Severance Pay Plan or under an
agreement between the Company and the Participant.
SIXTH: Article II is amended by adding the following language at
the end of the second sentence thereof:
;provided, however, that the Board may not declare that a
Participant is no longer a Participant during the period
beginning three months before a Control Change Date or
after a Control Change Date.
SEVENTH: Article III is amended by adding the following Section
3.06:
Excise Taxes. Any amount payable under this Plan shall be
reduced if such payment or any amount or benefit provided
under any plan, program, arrangement or agreement with the
Company is subject to excise tax under Code section 4999
or any successor provision. In that event, such payments
or benefits shall be reduced to the maximum amount that
may be provided to or on behalf of the Participant without
liability for such excise tax. Any reduction required by
the preceding sentence shall first come from any cash
severance benefit payable to the Participant, next from
cash payable under this Plan, next from cash payable under
other plans, programs, arrangements or agreements and
finally from noncash benefits.
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CFW COMMUNICATIONS COMPANY FORM 10-K
EIGHTH: Article IV is amended by adding the following language as
the fourth sentence:
Notwithstanding the foregoing, the Company may establish a
grantor trust in anticipation of its obligations to
Participants and Beneficiaries but the assets of any such
trust shall remain subject to the claims of the Company's
creditors.
NINTH: Section 5.02(b) is amended to read as follows:
Effective January 1, 2000, a Participant who terminates
his employment with the Company prior to Retirement but
(i) after completing seven (7) Years of Service or (ii)
after a Control Change Date, shall be entitled to benefits
under the Plan as of the date he would have been eligible
to Retire and determined under Plan section 3.01(a)(1),
based on his Years of Service as of his termination of
employment (which shall include any Years of Service
creditable under the second sentence of Section 1.18);
provided, however, that no benefits shall be payable if
(1) the Participant terminates his employment voluntarily
(other than a voluntary termination (a) after completing
seven (7) Years of Service or (b) with Good Reason after a
Change in Control)or (2) the Company discharges the
Participant with Cause as determined by the Board.
TENTH: Section 5.01(c) is amended by adding the following
language at the end thereof:
For purposes of subsection (b), Good Reason means that
(1) Participant's total compensation (the sum of base
salary and target annual incentive payment, based on
objectives comparable to those applicable to similarly
situated Company executives) is reduced,
(2) Participant's job duties and responsibilities are
diminished,
(3) Participant is required to relocate to a facility
more than fifty miles from Waynesboro, Virginia,
(4) Participant does not receive any previously
deferred compensation when the payment of such deferral is
due,
(5) Participant is not provided benefits (e.g.,
health insurance) that are comparable in all material
respects to those provided to Participant on the Control
Change Date,
(6) Participant is directed by the Board or an
officer of the Company or an Affiliate (or the Company's
successor or an affiliate thereof) to engage in conduct
that is unethical, illegal or contrary to the Company's
(or its successor's) good business practices or
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CFW COMMUNICATIONS COMPANY FORM 10-K
(7) Participant is directed by the Board or an
officer of the Company or an Affiliate (or the Company's
successor or an affiliate thereof) to refrain from acting
and the failure to act is unethical, illegal or contrary
to the Company's (or its successor's) good business
practices.
ELEVENTH: Section 7.01 is amended by adding the following
language at the end of the first sentence:
;provided, however, that without a Participant's consent,
the Board may not terminate, amend or modify the Plan
within three months before a Control Change Date or after
a Control Change Date.
TWELFTH: Exhibit I to the Plan is amended by deleting the
reference "1-14" and the corresponding Applicable Percentage and
by substituting the following in their stead:
Participant's
Years of Service Applicable Percentage
---------------- ---------------------
1 29.5
2 30.5
3 32.0
4 33.5
5 35.0
6 36.5
7 38.0
8 39.5
9 41.0
10 42.5
11 44.0
12 45.5
13 47.0
14 48.5
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