**Exhibit 10.15**

 

**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 herebyamended and restated as of November 29, 2007, by and between HickoryTechCorporation, a Minnesota corporation (the “Company”), and John W. Finke (the “Executive”).

 

**WITNESSETH:**

 

WHEREAS, the Executive will devote substantial skilland effort to the affairs of the Company, and the Board of Directors of theCompany desires to recognize the significant personal contribution that theExecutive will make to further the best interests of the Company; and

 

WHEREAS, it is desirable and in the best interests ofthe Company and its stockholders to continue to obtain the benefits of theExecutive’s services and attention to the affairs of the Company, and

 

WHEREAS, it is desirable and in the best interests ofthe Company and its stockholders to provide inducement for the Executive (1) toremain in the service of the Company in order to facilitate an orderlytransition in the event of a change in control of the Company and (2) toremain in the service of the Company in the event of any threatened oranticipated change in control of the Company; and

 

WHEREAS, it is desirable and in the best interests ofthe Company and its stockholders that the Executive be in a position to makejudgments and take actions with respect to a proposed change in control of theCompany without regard to the possibility that his or her employment may beterminated without compensation in the event of certain changes in control ofthe Company; and

 

WHEREAS, the Executive desires to be protected in theevent of certain changes in control of the Company; and

 

WHEREAS, for the reasons set forth above, the Companyand the Executive desire to enter into this Agreement.

 

NOW, THEREFORE, in consideration of the facts recitedabove and the mutual covenants and agreements contained herein, the Company andthe Executive agree as follows:

 

1.             Rightto Payment.  If (A) theExecutive’s employment with the Company or its Successor is terminated withinthree (3) years following an Event (as defined in Paragraph 2 below) forany reason other than a reason specified in Paragraph 3(a) through(d) below,or (B) the Executive voluntarily terminates his or her employmentwithin a period of thirty (30) days following the first anniversary of anEvent, then the Executive shall be entitled to receive the Benefits set out inParagraph 4 below.  If a subsequent Eventoccurs, and if the Executive is an employee of the Company or its Successor,without limiting any rights the Executive may have, Executive shall have allrights provided by the first sentence of this Paragraph 1 relating to suchsubsequent event.

 

2.             Change of ControlEvents.  An “Event” shall be deemedto have occurred if:

 

(a)           A majority of thedirectors of the Company shall be persons other than persons

 

(1)           for whose electionproxies shall have been solicited by the Board of Directors of the Company; or

 

(2)           who are then serving asdirectors and who were initially appointed or elected by the Board of Directorsto fill vacancies on the Board of Directors caused by death or resignation (butnot by removal), or to fill newly created directorships created by the Board ofDirectors;

 

provided, however, that aperson 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 anactual or threatened election contest with respect to the threatened electionor removal of directors (or other actual or threatened solicitation of proxiesor consents) by or on behalf of any person other than the Board of Directors ofthe Company; or

 

 

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(b)           30% or more of theoutstanding voting stock of the Company or all or substantially all of theassets or stock of the Company is acquired or beneficially owned (as defined inRule 13d-3 under the Securities and Exchange Act of 1934, as amended, orany successor rule thereto), directly or indirectly, by any Person (otherthan by the Company, a subsidiary of the Company, an employee benefit plan (orrelated trust) sponsored or maintained by the Company or one or more of itssubsidiaries, or by the Employee or a group of persons, including the Employee,acting in concert) or group of Persons, acting in concert, whether byacquisition of assets, merger, consolidation, statutory share exchange (otherthan 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 mergedinto or consolidated with another corporation (other than a subsidiary of theCompany) or a statutory share exchange for the Company’s outstanding votingstock of any class is consummated unless (i) a majority of the votingpower of the voting stock of the surviving corporation is, immediatelyfollowing the merger, consolidation or statutory share exchange, beneficiallyowned, directly or indirectly, by the Employee (or a group of Persons,including the Employee, acting in concert) or (ii) immediately followingthe merger, consolidation or statutory share exchange, more than 70% of thevoting power of the voting stock of the surviving corporation is beneficiallyowned, directly or indirectly, by the persons who beneficially owned votingstock of the Company immediately prior to such merger, consolidation orstatutory share exchange in substantially the same proportion as theirownership of the voting stock of the Company immediately prior to such merger,consolidation or statutory share exchange; or

 

(d)           The shareholders of theCompany approve the complete liquidation or dissolution of the Company.

 

3.             Termination NotEntitling Executive to Benefits. The Executive shall not be entitled to theBenefits set out in Paragraph 4 if his or her employment is terminated duringthe three (3) year period following an Event for any of the followingreasons:

 

(a)           Death. TheExecutive’s death.

 

(b)           Disability. TheExecutive’s disability. “Disability” shall mean the inability of the Executiveto perform the duties and responsibilities of his or her employment by reasonsof illness or other physical or mental impairment or condition, if suchinability continues for an uninterrupted period of ninety (90) calendar days ormore.  A period of inability shall be “uninterrupted”unless and until the Executive is no longer considered disabled by the Company’sLong Term Disability Insurer.

 

(1)           The determination ofwhether the Executive is suffering from a “disability” as defined herein shallbe made. The determination of whether the Executive is disabled shall be on thesame basis as the Company provided Long-Term Disability benefit, which is afully insured benefit provided by an independent third party. If the Executivemeets the disability criteria for long term disability benefits under thisCompany provided benefit, the Executive will also be considered disabled underthis Agreement.

 

(2)           The Executive agrees tomake himself or herself available for and to submit to examinations by suchphysicians as may be requested by the Company or the Company’s Long TermDisability Insurer. The Executive’s failure to submit to examinations by suchphysicians as may be requested shall disqualify Executive from receivingBenefits under this Agreement.

 

(c)           VoluntaryTermination. Except as provided in paragraph 1(B), the Executive’svoluntary retirement or voluntary termination of employment. However, theExecutive’s retirement or termination of employment shall not be consideredvoluntary if, following the Event and subject to the provisions fornotification set forth below, one or more of the following has occurred withoutExecutive’s express written consent and results in a material negative changeto Executive:

 

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(1)           There has been afailure to provide the Executive with substantially equivalent reportingresponsibilities, titles, offices or positions, or Executive has been removedfrom, or has not been re-elected to, any of such positions, which has theeffect of materially diminishing the Executive’s responsibility or authority;

 

(2)           There has been afailure to provide the Executive with: (a) the same base salary, or (b) substantiallyequivalent (or greater) total salary opportunity, or (c) employee benefitswhich are, in the aggregate, substantially equivalent to those provided to theExecutive at the time of the Event;

 

(3)           There has been afailure to provide the Executive with substantially equivalent office space oradministrative support; or

 

(4)           Executive has beenrequired 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 timeof the Event, or Executive is required to undertake substantially more job-related traveling.

 

In the event of anoccurrence of the type enumerated in subparagraphs (1) through (4) above,Executive shall, within ten (10) days following Executive’s actualknowledge of such occurrence, notify the Company in writing of the specificoccurrence which Executive believes would render his/her retirement ortermination not voluntary and, following receipt of such notice, the Companyshall be afforded a period of thirty (30) days within which to remedy suchoccurrence.  In the event that Executivefails to provide such notice or to afford such opportunity to remedy theoccurrence, or in the event the Company does remedy the occurrence within 30days, then none of the occurrences specified in subparagraphs (1) through (4) abovemay be relied upon by Executive to characterize his/her retirement ortermination as not voluntary.

 

 (d)          Involuntary Termination For Cause. TheExecutive’s involuntary termination “for cause.” “For cause” shall mean:

 

(1)           A persistent failure bythe Executive to perform the duties and responsibilities of his or her job,which failure is willful and deliberate on the Executive’s part and is notremedied within a reasonable period of time after the Executive’s receipt ofwritten notice from the Company or its Successor specifying the act or omissionconstituting such failure;

 

(2)           A criminal act or actsundertaken by the Executive and intended to result in substantial gain orpersonal enrichment of the Executive at the expense of the Company or itsSuccessor;

 

(3)           Unlawful conduct orgross misconduct that is willful and deliberate on the Executive’s part andthat, in either event, is materially injurious to the Company or its Successor;or

 

(4)           The conviction of theExecutive of a felony.

 

(e)           SubsequentOccurrences. If the Executive’s employment is terminated undercircumstances in which Executive would be entitled to Benefits as defined inParagraph 4, and thereafter there is an occurrence that would have justifiedthe termination of the Executive’s employment with no entitlement to Benefits(such as the Executive’s death, disability, voluntary termination, orinvoluntary termination for cause [all as defined above in this Paragraph]),that subsequent occurrence shall not disqualify the Executive (or the Executive’slegal representative) from receiving or continuing to receive the Benefitsprovided under this Agreement. If the Executive’s employment is terminatedunder circumstances in which the Executive would be entitled to Benefits asdefined in Paragraph 4, and thereafter the executive is re-employed by theCompany, the Executive would be entitled to continue to receive paymentsprovided under this Agreement.

 

4.             Benefits.  If the Executive’s employment is terminatedunder circumstances entitling the Executive to Benefits, the Executive shallreceive the following:

 

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(a)           Lump Sum Payment.  The Executive shall be entitled to a lump sumcash payment in the 

amount of One Month’sSalary times 35.88. One Month’s Salary shall be determined by taking theExecutive’s highest annual compensation for a calendar year (including basesalary, the HickoryTech Executive Incentive Plan Annual and Long TermPerformance Award bonuses paid in that calendar year, Annual SupplementalRetirement Plan contributions, stock grants under the Long Term ExecutiveIncentive Program and any other incentive payments with the exception of stockoptions) during the five-year period prior to the Executive’s termination anddividing that amount by twelve (12). For executives who have not yet beeneligible to receive a payment under the HickoryTech Executive Incentive Plan,or who have only been eligible for one bonus payment under the HickoryTechExecutive Incentive Plan due to their time in the position or with the Company,One Month’s Salary will be determined by taking one month of current basesalary and adding it to the greater of:

 

(1)           the bonus percentagefor which the Executive is eligible, calculated at the target payout asindicated in the Hickory Tech Executive Incentive Plan, divided by twelve (12);or

 

(2)           the actual bonuspayment received, or calculated at the close of the fiscal year but not yetreceived due to timing of the payout as indicated in the HickoryTech ExecutiveIncentive Plan, divided by twelve (12).

 

This lump sum paymentshall be made by the Company or its Successor on the first regular business dayfollowing the six (6) month anniversary of the Executive’s termination ofemployment, and shall be subject to withholding of all taxes and other amountsrequired by law to be withheld or paid to others.

 

(b)           In the event it shallbe determined that any payment or distribution by the Company or other amountwith respect to the Company to or for the benefit of the Executive, whetherpaid or payable or distributed or distributable pursuant to the terms of thisAgreement or otherwise, (a “Payment”) is (or will be) subject to the excise taximposed by Section 280G of the Internal Revenue Code or any interest orpenalties are (or will be) incurred by the Executive with respect to the excisetax imposed by Section 280G of the Internal Revenue Code with respect tothe Company (the excise tax, together with any interest and penalties, arehereinafter collectively referred to as the “Excise Tax”), the Executive shallbe entitled to receive an additional cash payment (a “Gross-Up Payment”) fromthe Company in an amount equal to the sum of the Excise Tax and an amountsufficient to pay the cumulative Excise Tax and all cumulative income taxes(including any interest and penalties imposed with respect to such taxes)relating to the Gross-Up Payment so that the net amount retained by theExecutive is equal to all payments received pursuant to the terms of thisAgreement or otherwise (prior to income taxes with respect to such payments).

 

(c)           All determinationsrequired to be made to determine whether and when a Gross-Up Payment isrequired and the amount of such Gross-Up Payment and the assumptions to be utilizedin arriving at the determination shall be made by a nationally recognizedcertified public accounting firm designated by the Executive (the “AccountingFirm”), which shall provide detailed supporting calculations both to theCompany and the Executive within 30 days after the receipt of notice from theExecutive that there has been a Payment, or such earlier time as is requestedby the Company. In the event that at any time relevant to this Agreement theAccounting Firm is serving as accountant or auditor for the individual, entityor group or Person effecting the Change in Control, the executive shall appointanother nationally recognized certified public accounting firm to make thedeterminations required hereunder (which accounting firm shall then be referredto as the “Accounting Firm” hereunder). All fees and expenses of the AccountingFirm shall be borne solely by the Company. Any Gross-Up Payment, as determinedin accordance with this Section (and reimbursement for fees and expensesof the Accounting Firm having been paid by the Executive, if any), shall bepaid by the Company to the Executive within five days after the receipt of theAccounting Firm’s determination. If the Accounting Firm determines that noExcise Tax is payable by the Executive, it shall so indicate to the Executivein writing.  Any determination by theAccounting Firm shall be binding upon the Company and the Executive.

 

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(d)           Continued InsuranceCoverage. The Executive shall be entitled to continuation of his or herCompany-provided insurance coverage (health, life, dental, accidental death anddismemberment, and any other applicable insured health and welfare benefitprograms, excluding short and long-term disability) for 2.99 years after theExecutive’s employment termination, at the same levels and coverage and on thesame terms and conditions as if the Executive were still an active employee ofthe Company or its Successor throughout such period, including the right (ifprovided to active employees) to elect spousal or family coverage.  In the event that the participation of theExecutive in any such insurance plan or program is barred, the Company or itsSuccessor, at its sole cost and expense, shall arrange to provide the Executivewith benefits substantially similar to those which the Executive wouldotherwise be entitled to receive under such plans and programs. Notwithstandingthe foregoing, however, the Company or its Successor shall not be required toprovide any continuation coverage under this subparagraph 4(d) to theextent that such coverage is duplicative of any coverage the Executive isreceiving under any other policy provided at the expense of the Company.

 

(e)           Continuation of anyother benefits or perquisites being received by the Executive at the time ofthe Executive’s employment termination will be negotiated with the Company orits Successor.

 

5.             Benefits Offset ByOther Severance Payments. The lump sum payment provided in subparagraph 4(a) shallbe in addition to any salary or other remuneration otherwise payable to theExecutive on account of the Executive’s employment by the Company or itsSuccessor. This payment shall be in lieu of any severance payments under anyother agreement resulting from his or her termination of employment with theCompany or its Successor.

 

6.             No Duty toMitigate.  The Executive shall not berequired to mitigate the amount of any payment or other benefit provided for inParagraph 4 by seeking other employment or otherwise, nor (except asspecifically provided in subparagraph 4(d) above) shall the amount of anypayment or other benefit provided for in Paragraph 4 be reduced by anycompensation earned by the Executive as the result of employment after theExecutive’s employment termination.

 

7.             Definitionof Certain Terms.

 

(a)           Successor. “Successor”means any Person that succeeds to the business of the Company through merger,consolidation, or acquisition, including any Person acquiring all orsubstantially all of the assets or stock of the Company.

 

(b)           Person. “Person”means an individual, partnership, corporation, estate, trust, or other entity.

 

8.             Successors andAssigns.

 

(a)           This Agreement shall bebinding upon and inure to the benefit of the legal representatives, successors,and assigns of the parties hereto; provided, however, that the Executive shallnot have any right to assign, pledge, or otherwise dispose of or transfer anyinterest in this Agreement or any payments hereunder, whether directly orindirectly or in whole or in part, without the written consent of the Companyor its Successor.

 

(b)           The Company willrequire any Successor, by agreement in form and substance satisfactory to 

the Executive, toassume expressly and agree to perform this Agreement in the same manner and tothe same extent that the Company would be required to perform it if no suchsuccession had taken place.

 

9.             Attorneys’ Fees,Costs and Interest. If the Executive (or the Executive’s legalrepresentative) successfully challenges, in whole or in part, the refusal ofthe Company or its Successor to provide Benefits under this Agreement or toabide by any other provision of this Agreement, then the Company or itsSuccessor shall pay to the Executive (or the Executive’s legal representative):

 

(a)           All legal fees, costs,disbursements, and expenses incurred as a result of the refusal to provideBenefits or to abide by the other provisions of the Agreement; and

 

(b)           Interest on any funds(or on the fair market value of any benefits) that were wrongfully withheld bythe Company or its Successor, calculated by reference to the prime rate as ineffect during the applicable period.

 

10.           Governing Law.This Agreement shall be construed in accordance with the laws of the State ofMinnesota, without giving effect to principles of conflicts of laws.

 

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11.           Notices. Allnotices, requests, and demands given to or made pursuant hereto shall be inwriting and be either hand-delivered or mailed to any such party at its addresswhich:

 

(a)           In the case of theCompany shall be:

 

HickoryTech Corporation

221 East Hickory Street

P.O. Box 3248

Mankato, MN  56002-3248

 

(b)           In the case of theExecutive shall be:

John W. Finke

160 Fairway Drive

Mankato, MN 56001

 

Either party may, bynotice hereunder, designate a changed address. Any notice, if properlyaddressed and sent prepaid by registered or certified mail shall be deemeddispatched on the registered date or that stamped on the certified mailreceipt, and shall be deemed received within the second business day thereafteror when it is actually received, whichever is sooner. Any notice sent regularmail or hand-delivered shall be deemed received when it is actually received bythe other party.

 

12.           Severability. Inthe event that any portion of this Agreement may be held to be invalid orunenforceable for any reason, such invalidity or unenforceability shall notaffect the other portions of this Agreement, and any court of competentjurisdiction may so modify the objectionable provision as to make it valid,reasonable, and enforceable.

 

13.           IncentiveCompensation Plan and Stock Options. In the case of a payment being due asdescribed in Paragraph 1, the Executive’s benefits under the Annual Award andLong Term Performance Award of the HickoryTech Corporation Executive IncentivePlan shall become immediately payable and any outstanding stock options andunvested restricted shares shall be immediately vested. Any Restricted Stock orPerformance Stock Awards under the Long Term Executive Incentive Program whichare payable due to achievement of Performance Objectives through the year inwhich the payment under this Agreement becomes due will be paid and fullyvested immediately upon the audited close of the fiscal year financials, but inno case later than March 15 of the year following when the payment becomesdue under this Agreement. The Long Term Executive Incentive Program Awards thatare not earned based on results at the close of the fiscal year in which thepayment under this Agreement becomes due will not be payable. Awards issued tothe Executive shall immediately have all restrictions removed.

 

14.           Amendmentor Termination of this Agreement.

 

(a)           Prior to theOccurrence of an Event. Prior to the occurrence of an Event, the Company,by resolution of the Compensation Committee of the Board of Directors, has theunilateral power to amend or terminate this Agreement at any time and for anyreason, and may do so without the Executive’s consent. Notwithstanding theforegoing, however:

 

(1)           No such amendment ortermination of this Agreement shall be effective with respect to the Executiveuntil two weeks following the date that Executive is provided with writtennotice of the change.

 

(2)           No such amendment ortermination of this Agreement shall be effective with respect to the Executive,unless otherwise agreed by the Executive, if an Event occurs during theone-year period following the date of adoption of the resolution amending orterminating this Agreement.

 

(b)           After the Occurrenceof an Event. After the occurrence of an Event, the Company, by resolutionof the Compensation Committee of the Board of Directors, may amend or terminatethis Agreement, but no such amendment or termination of this Agreement shall beeffective unless the Executive consents thereto in writing. Any waiver by anExecutive of rights of any benefits due under this agreement for any reason(rehire or other) must be express and in writing.

 

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IN WITNESS WHEREOF, the parties hereto have executedthis Agreement as of the date set out above.

 
| EXECUTIVE                | HICKORYTECH CORPORATION |
|--------------------------|-------------------------|
|                     |                    |
|  /s/ John W.  Finke | By:                     | /s/ R. Wynn Kearney, Jr. |
| John W. Finke            |                    |
|                     | Its:                    |  Board Chair |
|                          |                         |  |  |

 

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