MODIFICATION AGREEMENT
AGREEMENT made as of this first day of June 1998 by and between Century
Communications Corp., a New Jersey Corporation whose address for the purposes of
this Agreement is 00 Xxxxxx Xxxxxx, Xxx Xxxxxx, XX 00000 (the "Company") and
Xxxxx X. Xxxxxxxxx, an individual residing at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000 ("Employee").
W I T N E S S E T H
WHEREAS:
A. Under the date of January 1, 1997, the Company and Employee
entered into an employment agreement (the "Employment Agreement") pursuant to
which the Employee was employed by the Company as its financial officer and to
carry out other duties assigned to him pursuant to the Employment Agreement.
B. Both the Company and the Employee are now mutually desirous of
amending the Employment Agreement to (i) extend its term to June 30, 2003 (ii)
provide for the continuation of certain benefits and the use of certain
furniture and equipment services and the transfer of certain property following
termination of employment under certain circumstances and (iii) to make
provision in the instance of a change of control of the Company.
NOW THEREFORE, in consideration of the mutual covenance and agreements
herein set forth and other good and valuable consideration, the receipt and
adequacy of which is mutually acknowledged, it is agreed by and between the
parties as follows:
1. Section 4 of the Employment Agreement is deleted in its entirety and
replaced by the following:
"4. Term
4.1 The term of this Agreement (the "Term") shall be
seventy-eight consecutive months commencing January 1, 1997 and
expiring June 30, 2003"
2. The date "December 31, 1999" contained in Section 8.1 of the Employment
Agreement is deleted in its entirety and replaced by the date "June 30, 2003."
3. Section 12.2 is amended by deleting the period at the end of the first
sentence and by adding the following to such sentence:
"(iv) to have transferred to Employee and for Employee to become the
owner thereof, free of all liens and other encumbrances, the motor
vehicle then being supplied and made available to Employee pursuant to
Section 6.1, (v) to continue to have the availability in the same
amount, manner and degree as if still employed on a full time basis and
rendering services in a satisfactory manner, all medical, major
medical, dental, life and disability insurance and ancillary medical
benefits that were then available to Employee and (vi) without cost to
Employee, for a period of one year following such termination, to be
provided with an office and the
equipment and accoutrements of office which were being furnished to
Employee at the tme of such termination."
4. Section 15.5 of the Employment Agreement is deleted in its entirety
and replaced by the following:
"15.5 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership, venture or other entity 50% or more of the
then issued and outstanding voting stock is owned directly or
indirectly by the Company in the instance of a Corporation, or 50% or
more of the interest in capital or in profits is owned directly or
indirectly by the Company in the instance of a partnership, venture
and/or other entity, or any corporation, partnership, venture or other
entity, the business of which is controlled or managed by the Company
or any of its Subsidiaries."
5. There is added a new section to be known as Section 14A reading as
follows:
14A. Change of Control; Termination.
14A.1 A "Change in Control" of the Company shall be deemed to occur (A)
when any person or group of affiliated or related persons (other than a
group of which Employee or an entity controlled by Employee is a
participant and other than an employee benefit plan (or related trust
of the Company) acquires, directly or indirectly, voting securities or
assets of the Company if, immediately after
giving effect to such acquisition, such person or group of affiliated
or related persons (i) beneficially owns 9% or more of the outstanding
shares of common stock of the Company or of the total voting power of
all of the Company's voting securities outstanding at the time of such
acquisition, or stock having a fair market value of 9% or more of the
fair market value of the Company's issued and outstanding stock, or
(ii) otherwise effectively controls the operations of the Company,
whether by control of its Board of Directors, by contract, or
otherwise, or (B) upon the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination, (i) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the outstanding shares of the Company's common stock
and outstanding shares of the Company's voting securities immediately
prior to such Business Combination, beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through
one or more subsidiaries) in substantially the same proportions as
their ownership immediately prior to such Business Combination, of the
outstanding shares of the
Company's common stock and outstanding shares of the Company's voting
securities, as the case may be, (ii) no person (excluding any
corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 9% or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership
existed prior to the Business Combination and (iii) at least a majority
of the members of the board of directors of the corporation resulting
form such Business Combination were members of the board of directors
of the Company at the time of the execution of the initial agreement
provided for the Business Combination, or of the action of the Board of
Directors of the Company, providing for such Business Combination,
whichever is earlier, or (C) when a majority of the members of the
Board of Directors of the Company is replaced during a 12-month period
by directors whose appointment or election was not endorsed by the
prior Board. Without limitation, a "Threatened Change in Control" shall
be deemed to have occurred when any person or group of persons acquires
such ownership of securities of the Company that such person or group
files or is required to file Forms 13D and 13G or otherwise files or is
required to make a filing pursuant to Regulation 13d under the
Securities and Exchange Act of 1934, as amended.
14A.2 In the event of a Threatened Change in Control or a Change in
Control, as defined in Sub-Section 14A.1, Employee shall have the right to
terminate this Agreement on not less than ten days notice to the Company (or to
the successor in interest or the acquirer of the assets or interests of the
Company, or the surviving Company in the instance of a business combination if
same is not the Company) in which event Employee shall be entitled to the same
monies and benefits to which Employee would be entitled in the event the Company
terminated this Agreement and Employee's employment, other than for cause, as
provided in Section 12.2.
14A.3 In the event any of the payments provided in this Section 14.A or
pursuant to Section 12.2 is determined by the United States Internal Revenue
Service to be an "Excess Parachute Payment" under Section 280G of the United
States Internal Revenue Code of 1986, as amended (the "Code"), the Company shall
pay Employee additional amounts (the "Tax Payment") to make him whole, on an
after-tax basis (based on the highest applicable federal, state, and local
income tax rates and after giving effect to the federal deduction arising from
such state or local income taxes), for any excise tax under Section 4999 of the
Code imposed with respect to such Excess Parachute Payments.
14A.4 The parties agree and acknowledge that the payments to be made
under Sections 11, 12.2 and this Section 14 constitute fair and reasonable
provisions for the consequence of the applicable termination and do not
constitute a penalty.
6. In all other respects the Employment Agreement is ratified, adopted and
confirmed.
IN WITNESS WHEREOF, the parties hereto have executed and have caused this
agreement to be executed as of the day and year first above written.
CENTURY COMMUNICATIONS CORP.
By: /s/ [Signature]
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Its Secretary
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx
