AMENDED SEVERANCE AGREEMENT, DATED AS OF 7/7/2003



 


Exhibit 10.1


AMENDMENT TO SEVERANCE AGREEMENT AND RELEASE


     THIS AMENDMENT TO SEVERANCE AGREEMENT AND RELEASE (the “Amendment”)
effective as of July 7, 2003, made and entered into by and between BARRY R.
RUBENS (the “Executive”) and CT COMMUNICATIONS, INC. (the “Company”), a
corporation organized under the laws of the State of North Carolina
(collectively defined and referred to as the “Parties”);


WITNESSETH:


     WHEREAS, Executive was formerly employed by the Company at the Company’s
Concord, North Carolina offices;


     WHEREAS, the Parties previously executed a Severance Agreement and Release
(the “Severance Agreement”) in connection with the Executive’s separation from
the Company; and


     WHEREAS, the Parties desire to enter into this Amendment to resolve
certain matters by and between them.


     NOW, THEREFORE, in exchange for the premises and mutual covenants
contained in this Amendment, the Parties, intending legally to be bound, agree
as follows:


     1.     Amendment Concerning Severance Pay. In paragraph 6(b) of the
Severance Agreement and Release, the Company agreed to make certain severance
payments to Executive, some of which may be offset by future earnings. For
and in consideration of the terms of this Amendment, Executive agrees to waive
Executive’s right to any future severance pay from the Company under paragraph
6(b) of the Severance Agreement, and the Parties agree that effective
immediately, the Company has no obligation to make any severance payments to
Executive.


     2.     Release. In exchange for the terms of this Amendment, the Company
hereby releases Executive, his heirs, executors, legal representatives,
administrators, successors and assigns, of and from any and all claims,
actions, lawsuits, damages, costs, expenses, and attorney’s fees, concerning
and relating to: (a) the work time lost while working for the Company, if any,
and business expenses paid by the Company, if any, regarding Executive’s
formation and operation of Davidson Telecom Holdings, LLC or any of its
affiliates (“Davidson”), and (b) the establishment of business relationships
between Davidson and the Mills Corporation (“Mills”) concerning Mills’ St.
Louis Mills and Cincinnati Mills projects.


     In exchange for the terms of this Amendment, Executive hereby releases the
Company, its affiliate, subsidiary and parent companies and divisions, as well
as such entities’ respective officers, directors, trustees, employees, agents,
predecessors, successors and assigns (collectively, the “Company Releasees”),
of and from any and all claims relating to severance or any other pay due or
claimed to be due to Executive by the Company Releasees now or in the future,
including claims for wages, severance, costs, expenses, attorney fees, damages,
losses or otherwise.


     The Parties agree that this release shall not: (i) release any claims
available to the Parties under the Severance Agreement with the exception of
the claim for severance payments which is released by this Amendment; (ii)
affect Executive’s vested and accrued stock options or restricted shares, or
vested rights as a participant in the Company sponsored 401(k), pension or SERP
plan; (iii) affect Executive’s right to exercise any conversion rights provided
to Executive in the Company’s insurance and benefits plans, if any; (iv) affect
any rights or claims that may arise out of events occurring after the date this
Amendment is signed, including for claims for breach of any provision of this
Amendment, except that it is understood that Executive shall not have the right
to any further severance payments of any kind from the Company; (v) affect the
additional on-going obligations described in the Severance Agreement, which
includes all non-compete and confidentiality obligations in favor of the
Company.


 






 


     3.     Executive’s Representation. Executive hereby represents and warrants
that he is in compliance with and has not violated his non-compete obligations
to the Company, either before or since his separation from employment with the
Company, that he has not violated any of his obligations under the Severance
Agreement, and that he will continue to comply with all such obligations in the
future.


     4.     Agreement Confidentiality. The Parties agree that the terms of the
Severance Agreement shall continue to be confidential as set forth in that
agreement, except that it is not necessary for the parties to keep confidential
the terms of this Amendment, which in principal part requires no further
severance payments to be made by the Company to Executive.


     5.     No Admissions. This Amendment does not constitute any admission by the
Company or Executive of any misconduct or liability and the Parties enter into
this Amendment solely to resolve matters between the Parties in an amicable
fashion.


     6.     Governing Law. The Parties agree that this Amendment shall be deemed
to be a contract made under, and for all purposes shall be governed by and
construed in accordance with, the internal laws and judicial decisions of the
State of North Carolina.


     7.     Entire Agreement. This Amendment constitutes the entire agreement
among the Parties pertaining to the subject matter contained in it, supersedes
any and all prior drafts of the Parties regarding this Amendment, and shall not
be modified or amended unless executed in writing by each of the Parties to
this Amendment; provided further, nothing contained in this Amendment shall be
construed to prevent the Company from instituting an action or claim in court,
or such other forum as may be appropriate, to enforce the terms of the
confidentiality, non-compete and other obligations of Executive set forth in
the Change In Control Agreement or any similar agreement or policy relating to
the Company’s confidential or proprietary business information or trade
secrets, to protect the Company’s proprietary or confidential business
information or trade secrets, to enforce or protect the Company’s patent,
copyright, trademark or trade name rights, to redress claims of product
disparagement or trade libel, or to protect the Company’s reasonable business
relations.



     IN WITNESS WHEREOF, this Amendment, as negotiated between counsel for the
parties, is presented by the Company, to remain open as an offer until July 7,
2003, and, if accepted, this Amendment is signed voluntarily by Executive.



	 	 	 	 	 	 	 	 
	EXECUTIVE	 	CT COMMUNICATIONS, INC	 	 
	 
	/s/ Barry R. Rubens	 	
By:
	 	/s/ Richard L.
Garner, Jr.
	 	(SEAL)
	
	 	 	 	
	 	 
	Barry R. Rubens	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	Date:	 	7/7/03
	 	Title:
	 	Vice President