Exhibit
10.23


 


SureWest Communications

P.O. Box 969

Roseville, California 95661


 


 


October 4, 2004


 


 


Philip A. Grybas

SureWest Communications

P.O. Box 969

Roseville, California 95661


 


Dear Philip:


 


SureWest Communications (the “Company”) considers it
essential to the best interests of the Company and its shareholders to foster
the continued employment of key management personnel in a period of uncertainty
regarding the Company’s future in light of the consolidation in the
telecommunications industry.  In this
connection, the Board of Directors of the Company (the “Board”) recognizes that
the possibility of a change in control exists and that such possibility, and
the uncertainty and questions which it necessarily raises among management, may
result in the departure or distraction of management personnel to the detriment
of the Company and its shareholders when their undivided attention and
commitment to the best interests of the Company and its shareholders are
particularly important.


 


Accordingly, the Board has determined that appropriate
steps should be taken to reinforce and encourage the continued attention and
dedication of members of the Company’s management, including you, to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a change in control of the
Company.


 


In order to induce you to remain in the employ of the
Company and in consideration of your agreement set forth in Section 2 hereof,
the Company agrees that you shall receive the benefits set forth in this letter
agreement (“Agreement”) in the event of a “change in control of the Company”
and a “constructive termination” (each as defined in Section 2 hereof) under
the circumstances described below.


 


1.             Term of Agreement. 
This Agreement shall commence on the date hereof and shall continue in
effect through December 31, 2004; provided, however, that
commencing on January 1, 2005 and each January 1 thereafter, the term of this
Agreement shall automatically be extended for one additional year unless, not
later than by November 30 of the preceding year, the 


 


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Company shall have given
notice that it does not wish to extend this Agreement; provided,
further, that following a change in control of the Company (as
hereinafter defined) the term of this Agreement shall automatically extend to
the date which is two (2) years following such change in control.


 


2.             Change in Control and Constructive Termination.  No benefits shall be payable hereunder unless
there shall have been a change in control of the Company and thereafter a
constructive termination, as set forth below. 
For purposes of this Agreement, a “change in control of the Company”
shall be deemed to have occurred if (A) any “person” (as such term is used in
Section 13(d) and 14(d) of the Exchange Act), other than a trustee or other
fiduciary holding securities under an employee benefit plan of the Company, is
or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing Twenty
percent (20%) or more of the combined voting power of the Company’s then
outstanding voting securities; (B) there is a merger or consolidation of the
Company in which the Company does not survive as an independent public company;
or (C) the business or businesses of the Company for which your services are
principally performed are disposed of by the Company pursuant to a partial or
complete liquidation of the Company, a sale of assets (including stock of a
subsidiary) of the Company, or otherwise. 
For purposes of this Agreement, “constructive termination” shall mean a
change in control of the company, as well as, and as a direct result thereof,
(i) a decrease in the total amount of your base salary below its level in
effect on the date hereof or as the same may be increased from time to time, or
a decrease in the bonus percentage to which you are entitled, without your
consent, provided, however, nothing herein shall be construed to guarantee your
bonus award if performance is below target, or (ii) a reduction in the
importance of your job responsibilities without your consent, with the
determination of whether a reduction in job responsibility has taken place to
be in your discretion or, (iii) your geographical relocation without your
consent.  Absent written consent, after a
change in control of the Company, no action or inaction by you within ninety
(90) days following the occurrence of the events described in (i), (ii) or (iii)
hereof shall be deemed consent to such events.


 


3.             Compensation Following Change of Control and Constructive Termination.  Subject to the terms and conditions of this
Agreement, following a change in control of the Company and constructive
termination, as defined in Section 2, the Company shall pay you a lump sum
payment, within ten (10) days after the constructive termination, in the amount
equal to the sum of:


 


(A)          The sum of your then
effective annual base salary through the termination date and any accrued paid
time off, plus


 


(B)           two times the sum of
(I) your full annual base salary on the date of the constructive termination,
plus (II) the greater of your target bonus or the most recent annual bonus paid
to you.


 


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In addition, the Company shall continue to provide to you and your
family at the Company’s expense, for twenty-four (24) months following the
change in control and the constructive termination, the life insurance,
medical, dental and other benefits provided to you and your family immediately
prior to the change in control and constructive termination.  The Company also shall pay to you all legal
fees and expenses incurred by you in seeking to obtain or enforce any right or
benefit provided by this Agreement.  You
shall not be required to mitigate the amount of any payment provided for in
this Section 3 by seeking other employment or otherwise, nor shall the amount
of any payment or benefit provided for in this Section 3 be reduced by any compensation
earned by you as the result of employment by another employer or by retirement
benefits after the date of termination, or otherwise.


 


4.             Certain Additional Payments by the Company.


 


(i)            Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment or distribution by the Company to or for your
benefit (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any additional
payments required under this Section 4) (a “Payment”) would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the “Code”) or any corresponding provisions of state or local tax
laws, or any interest or penalties are incurred by you 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”), then you shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that after your payment of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.


 


(ii)           Subject
to the provisions of Section 4(iii), all determinations required to be made
under this Section 4, including whether and when a Gross-Up Payment is required
and the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by Ernst & Young LLP or such
other certified public accounting firm as may be designated by you (the “Accounting
Firm”), which shall provide detailed supporting calculations both to the
Company and you within 15 business days of the receipt of notice from you that
there has been a Payment, or such earlier time as is requested by the
Company.  In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the change of control, you shall appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder).  All fees and expenses of the
Accounting Firm shall be borne solely by the Company.  Any Gross-Up Payment, as determined pursuant
to this Section 4, shall be paid by the Company to you within five days of the
receipt of


 


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the Accounting Firm’s
determination.  Any determination by the
Accounting Firm shall be binding upon the Company and you.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Company should have been made (“Underpayment”),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 4(iii) and you
thereafter are required to make a payment of any Excise Tax, the Accounting
Firm shall determine the amount of the Underpayment that has occurred and any
such Underpayment shall be promptly paid by the Company to or for your benefit.


 


(iii)          You
shall notify the Company in writing of any claim by the Internal Revenue
Service that, if successful, would require the payment by the Company of the
Gross-Up Payment.  Such notification
shall be given as soon as practicable but no later than ten business days after
you are informed in writing of such claim and shall apprise the Company of the
nature of such claim and the date on which such claim is requested to be
paid.  You shall not pay such claim prior
to the expiration of the 30-day period following the date on which you give
such notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due).  If the Company notifies you in writing prior
to the expiration of such period that it desires to contest such claim, you
shall:


 


(A)          give the Company any
information reasonably requested by the Company relating to such claim,


 


(B)           take such action in
connection with contesting such claim as the Company shall reasonably request
in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company,


 


(C)           cooperate with the
Company in good faith in order effectively to contest such claim, and


 


(D)          permit the Company to
participate in any proceedings relating to such claim; provided, however, that
the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold you harmless, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.
Without limitation on the foregoing provisions of this Section 4(iii), the
Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forego any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct you to pay the
tax


 


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claimed and sue for a refund or contest the claim in
any permissible manner, and you agree to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs you to pay such claim
and sue for a refund, the Company shall advance the amount of such payment to
you, on an interest-free basis and shall indemnify and hold you harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further
provided that any extension of the statute of limitations relating to payment
of taxes for your taxable year with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and you shall be entitled
to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.


 


(iv)          If,
after your receipt of an amount advanced by the Company pursuant to Section
4(iii), you become entitled to receive any refund with respect to such claim,
you shall (subject to the Company’s complying with the requirements of Section
4(iii)) promptly pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto). If,
after your receipt of an amount advanced by the Company pursuant to Section
4(iii), a determination is made that you shall not be entitled to any refund
with respect to such claim and the Company does not notify you in writing of
its intent to contest such denial of refund prior to the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-Up Payment required to be paid.


 


5.             Successors; Binding Agreement.


 


(i)            The
Company will require any successor (whether direct or indirect, by merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly agree to perform this Agreement.  Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle you to compensation from
the Company in the same amount and on the same terms as you would be entitled
hereunder following a change in control of the Company and constructive termination,
except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the date on which you become
entitled to such compensation from the Company. 
As used in this Agreement, “Company” shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.


 


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(ii)           This
Agreement shall inure to the benefit of and be enforceable by your executors,
administrators, successors, heirs, distributees, devisees and legatees.  If you should die while any amount would
still be payable to you hereunder if you had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to your devisee, legatee or other designee or, if there
is no such designee, to your estate.


 


6.             Notice.  For purposes
of this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered mail, return receipt requested,
postage prepaid, addressed to the respective addresses set forth on the first
page of this Agreement, provided that
all notices to the Company shall be directed to the attention of the Board with
a copy to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of a change of address shall be effective only upon receipt.


 


7.             Miscellaneous.  No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by you and
such officer as may be specifically designated by the Board.  No waiver by either party hereto at any time
of any breach by the other party hereto of, or compliance with, any condition
or provision of this Agreement to be performed by such other party shall be
deemed a waiver of similar or dissimilar provisions or conditions at the same
or at any prior or subsequent time.  No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. 
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of California.


 


8.             Validity.  The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.


 


9.             Counterparts.  This
Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.


 


10.           Supercedes Prior Agreements. 
The Company and you agree that this Agreement supercedes all prior
agreements, whether written or oral, relating to the subject matter of this
Agreement including, without limitation, any prior letter agreements relating
to payments in the event of a change in control of the Company, or any
provisions of any letters of offer of employment with the Company.


 


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If this letter sets forth our agreement on the subject
matter hereof, kindly sign and return to the Company the enclosed copy of this
letter which will then constitute our agreement on this subject.


 


	
   

  	
  Sincerely yours,

  
	
   

  	
   

  
	
   

  	
  SUREWEST COMMUNICATIONS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
   

  	
  Kirk C. Doyle

  
	
   

  	
   

  	
  Chairman

  
	
   

  
	
  AGREED TO this             
  day

  
	
   

  
	
  of                                   ,
  200     .

  
	
   

  
	
   

  	
   

  
	
  Philip A. Grybas

  
					



 


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