EMPLOYMENT AGREEMENT
Exhibit
10.28
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”) is entered into as of October 31, 2005 (the “Effective Date”) by
and between Charter
Communications, Inc.,
a
Delaware corporation (“Charter”), and Xxx
Xxx X. Xxxxxxxx,
an
individual (the “Executive”). For purposes of this Agreement, except with
respect to Charter’s obligations to Executive, the term “Company” includes
Charter and all direct and indirect subsidiaries and controlled affiliates,
W
I T N E S S E T H:
WHEREAS:
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(1)
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Charter
and Executive desire for Executive to be employed by Charter upon
and
subject to the terms and conditions set forth in this Agreement;
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(2)
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If
Executive is currently employed by the Company, then Executive
is willing
and desires to be employed by Charter under the terms of this Agreement
in
lieu of any prior terms and conditions applicable to such existing
employment;
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(3)
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Executive
(whether a prospective or existing employee) is willing and desires
to
accept employment with Charter hereafter upon and subject to the
terms of
this Agreement; and
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(4)
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Executive’s
agreement to the terms and conditions of Sections 6 and 7 are a
material
and essential condition of Executive’s employment with Charter hereafter
under the terms of this
Agreement;
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Now,
Therefore, in consideration of the premises, and the promises and agreements
set
forth below, the parties, intending to be legally bound, agree as
follows:
1. Employment
Terms and Duties.
1.1 Employment.
Charter
hereby employs Executive in an executive capacity, and Executive hereby accepts
employment by Charter as an executive, upon the terms and conditions set forth
in this Agreement and under a relationship of trust and confidence.
1.2 Term.
Executive’s employment under this Agreement commences as of the Effective Date
and unless earlier terminated pursuant to the provisions of Section 5 below,
shall terminate on the second anniversary of the Effective Date (the “Term”). If
Executive continues in Charter’s employ thereafter, Executive’s employment shall
be on an at will basis, and only the provisions of Sections 6-7, and provisions
directly related to their enforcement, shall continue to have any application
or
effect.
1.3 Duties.
Executive is employed in an executive capacity to perform such executive,
managerial and administrative duties as are assigned or delegated to Executive
from time to time by the President and/or Chief Executive Officer or designee
thereof. Executive will devote substantially all Executive’s business time and
attention to the business of the Company, will act in good faith to promote
the
success of the Company’s business, and will cooperate fully with the Executive
Officers of Charter and the Board of Directors of Charter in the advancement
of
the best interests of the Company. Executive will perform Executive’s duties to
the best of Executive’s abilities using Executive’s best efforts and in
accordance
with applicable law, and will comply with and carry out all Company policies
and
codes of conduct. Executive will travel from time to time to the extent
reasonably necessary to the performance of Executive's duties hereunder.
Nothing
in this Section 1.3, however, will prevent Executive from engaging
in
additional activities in connection with personal investments and community
affairs that are not inconsistent with Executive’s duties under this Agreement
(which community affairs shall be disclosed to and subject to approval by
the
President and/or Chief Executive Officer and/or Chief Operating Officer and/or
Chairman of the Board of Directors); provided such activities do not create
the
appearance of or an actual conflict of interest and do not violate any other
provisions of this Agreement.
1.4 Service
for Subsidiaries And Affiliates; Indemnification.
Executive may be nominated and appointed to one or more boards of directors
and
to one or more offices of subsidiaries and affiliates of Charter during
Executive’s employment. While serving as a director or as an officer of any such
subsidiary or affiliate, or performing any duties for any such subsidiary or
affiliate, Executive will serve and fulfill all duties without additional
compensation. Executive will be covered in such capacities by any directors
and
officers insurance policy Charter may have in place from time to time and by
the
Company’s indemnification policies as may be in effect from time to time, as
applicable.
2. Compensation.
2.1 Basic
Compensation.
Starting the Effective Date, Executive will be paid a base salary at an annual
rate of $371,800 (the "Salary") during Executive’s employment. The Salary will
be payable in equal periodic installments according to Charter’s customary
payroll practices, but no less frequently than monthly. The Salary may be
increased during the Term of Executive’s employment by the "Board" (the term
"Board" meaning, whenever used herein, the Board of Directors of Charter or
the
Compensation Committee or other designated committee of the Board of Directors
of Charter), but shall not be reduced below the rate set forth above without
Executive’s written consent. When increased or decreased in accordance with the
terms of this Agreement, the new minimum base annual salary shall be deemed
Executive’s "Salary" for all purposes of this
Agreement.
2.2 Incentive
Compensation.
During Executive’s employment, Executive shall be entitled to participate in an
incentive bonus program established by the Board to measure and reward
management for the financial performance of Charter that applies to senior
executive officers of Charter generally, excluding any specific incentive
or
bonus plan that may be developed by the Board for the President and/or Chief
Executive Officer and/or Chief Operating Officer and/or another Executive
Officer of Charter, and (unless specifically designated as a participant
in such
plan by the Board, in their sole discretion) excluding participation in the
Charter Communications, Inc. 2005 Cash Award Plan. In all cases, the payment
of
any incentive compensation shall be at the discretion of the Board, which
may
consider any factors it deems relevant, including the assessment of the
performance of Executive and Charter during the relevant time period. The
terms
of any incentive compensation or bonus plan and any payouts or awards thereunder
shall be established and determined from time to time by the Board in its
discretion. In no event, however, shall payment of any such amount be made
later
than two and one-half months after the end of the calendar year in which
all
conditions to payment are satisfied and the amount otherwise was determined
to
be payable.
2.3. Equity
Awards.
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(a) Restricted
Stock.
During
Executive’s employment, Executive shall be eligible to receive awards of
restricted shares of Charter common stock subject to the terms of Charter’s
restricted stock plan and restricted stock agreement in the same manner as
other
similarly situated officers generally. The amount of such awards shall be
determined by and at the discretion of the Board and may vary from officer
to
officer.
(b) Stock
Options.
During
Executive’s employment, Executive shall be eligible to receive awards of option
rights to acquire shares of Charter common stock subject to the terms of
Charter’s stock option plan and normal stock option agreement in the same manner
as other similarly situated officers. The amount of such awards shall be
determined by and at the discretion of the Board and may vary from officer
to
officer.
2.4 Welfare
Benefits. During
Executive’s employment, Executive will be permitted to participate in such
pension, profit sharing, bonus, life insurance, disability insurance,
hospitalization, major medical, directors and officers indemnification or
insurance policy, and other employee benefit plans of Charter that may be in
effect from time to time generally for other senior executives of Charter having
the same pay grade as Executive, all to the extent Executive is eligible under
the terms of such plans (collectively, the “Benefits”). The Benefits shall be
subject to change and discontinuation from time to time as the same may be
changed or discontinued as to Charter employees in the same pay grade as
Executive and/or Company employees generally.
2.5. Business
Expenses and Perquisites. During
Executive’s employment, Charter will
promptly reimburse Executive (or pay directly to the supplier of services)
for
all reasonable and necessary out-of-pocket expenses actually incurred by
Executive in connection with the performance of Executive's duties hereunder,
(including without limitation, appropriate business entertainment activities,
expenses incurred by Executive in attending approved conventions, seminars,
and
other business meetings, and promotional activities); in each case subject
to
Executive's furnishing Charter with evidence reasonably satisfactory to Charter
(such as receipts) substantiating the claimed expenditures (such expenses being
commensurate with the office and position of Executive and within budgetary
limitations), subject to compliance with the terms of any expense reimbursement
policy from time to time in effect (including with respect to pre-approvals),
and subject to Executive providing Charter with such other information and
documentation as may be necessary or required by Charter to deduct such expenses
for purposes of the United States Internal Revenue Code of 1986, as amended
(the
“Code”). All such payments will be made no later than two and one-half months
after the end of the calendar year in which Executive became entitled to receive
such payment.
3. Facilities
and Expenses. During
Executive’s employment, Charter will furnish Executive office space, equipment,
supplies, and such other facilities and personnel as Charter deems necessary
or
appropriate for the performance of Executive’s duties under this Agreement.
Charter will pay Executive’s dues in such professional organizations as the
President and/or Chief Executive Officer and/or Chief Operating Officer deems
appropriate.
4.
Vacations
and Holidays. Executive
will be entitled to paid vacation in accordance with the vacation policies
of
Charter in effect for its executive officers from time to time. Vacation must
be
taken by Executive at such time or times as approved by the President and/or
Chief Executive Officer and/or Chief Operating Officer and/or the designee
thereof. Executive will also be entitled to the paid holidays as and to
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the
extent set forth in Charter’s policies as the same may change from time to time
for employees generally.
5. Termination.
5.1. Events
of Termination.
Executive’s employment, Salary, Benefits, and Incentive Compensation, and any
and all other rights of Executive under this Agreement (excluding accrued rights
and benefits), will terminate prior to the expiration of the Term specified
in
Section 1.2:
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upon
the death of Executive;
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| (b) |
upon
the Disability of Executive (as defined in Section 5.2) immediately
upon notice from either party to the
other;
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| (c) |
for
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
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without
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
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| (e) |
for
Good Reason (as defined in Section 5.4) upon not less than
thirty
days’ (nor more than ninety (90) days) prior notice from Executive to
Charter; or
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| (f) |
without
Good Reason, immediately upon notice from Executive to
Charter.
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5.2. Definition
of “Disability.”
For
purposes of Section 5.1, and this Agreement, Executive will be deemed
to
have a “Disability” if, due to illness, injury or a physical or medically
recognized mental condition, (a) Executive is unable to perform Executive’s
duties under this Agreement with reasonable accommodation for 120 consecutive
days, or 180 days during any twelve month period, as determined in accordance
with this Section 5.2, or (b) Executive is considered disabled for purposes
of receiving / qualifying for long term disability benefits under any group
long
term disability insurance plan or policy offered by Charter in which Executive
participates. The Disability of Executive will be determined by a medical doctor
selected by written agreement of Charter and Executive upon the request of
either party by notice to the other, or (in the case of and with respect to
any
applicable long term disability insurance policy or plan) will be determined
according to the terms of the applicable long term disability insurance policy
/
plan. If Charter and Executive cannot agree on the selection of a medical
doctor, each of them will select a medical doctor and the two medical doctors
will select a third medical doctor who will determine whether Executive has
a
Disability. The determination of the medical doctor selected under this
Section 5.2 will be binding on both parties. Executive must submit to
a
reasonable number of examinations by the medical doctor making the determination
of Disability under this Section 5.2, and to other specialists designated
by such medical doctor, and Executive hereby authorizes the disclosure and
release to Charter of such determination and all supporting medical records.
If
Executive is not legally competent, Executive’s legal guardian or duly
authorized attorney-in-fact will act in Executive’s stead under this
Section 5.2 for the purposes of submitting Executive to the examinations,
and providing the authorization of disclosure, required under this
Section 5.2.
5.3. Definition
of “Cause.”
For
purposes of Section 5.1, and this Agreement, the term “Cause” means:
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(a) Executive’s
breach of a material obligation or representation under this Agreement or breach
of any fiduciary duty to Charter; or any act of fraud or knowing
misrepresentation or concealment on behalf of or to Charter or the Board of
Directors;
(b) Executive’s
failure to adhere in any material respect to (i) any Company Code of Conduct
in
effect from time to time and applicable to officers and/or employees generally,
or (ii) any written Company policy, if such policy is material to the effective
performance by Executive of the Executive’s duties under this Agreement, and if
Executive has been given a reasonable opportunity to cure this failure to comply
within a period of time which is reasonable under the circumstances but not
more
than the thirty (30) day period after written notice of such failure is provided
to Executive; provided that if Executive cures this failure to comply with
such
a policy and then fails again to comply with the same policy, no further
opportunity to cure that failure shall be required;
(c)
Executive’s
failure or refusal to perform any lawful duty or assignment; or the
appropriation (or attempted appropriation) of a material business opportunity
of
the Company, including attempting to secure or securing any personal profit
in
connection with any transaction entered into on behalf of the Company (other
than through stock options, bonuses and other incentives provided by Charter
to
Executive);
(d)
Executive’s misappropriation (or attempted misappropriation) of any of the
Company’s funds or property; or any breach of fiduciary duty to the Company or
any plan or program sponsored by the Company;
(e) Executive’s
conviction of, the entering of a guilty plea or plea of nolo
contendere or
no
contest (or the equivalent), or entering into any pretrial diversion program
or
agreement or suspended imposition of sentence, with respect to either a felony
or a crime that adversely affects the Company or its reputation; or the
institution of criminal charges against Executive, which are not dismissed
within sixty (60) days after institution, for fraud, embezzlement, any offense
involving dishonesty or constituting a breach of trust, or any felony (including
without limitation a crime in any jurisdiction other than the United States
or
any state thereof in which Company does business which would constitute such
a
felony under the laws of the United States or any state thereof);
(f) Executive’s
admission of liability of, or finding of liability for, the violation of any
“Securities Laws.” As used herein, the term “Securities Laws” means any federal
or state law, rule or regulation governing generally the issuance or exchange
of
securities, including without limitation the Securities Act of 1933, the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder;
(g) conduct
by Executive in connection with Executive’s employment that constitutes gross
neglect of any duty or responsibility, willful misconduct, or recklessness;
(h)
Executive’s
illegal possession or use of any controlled substance, or excessive use of
alcohol at a work function, in connection with Executive’s duties, or on Company
premises; “excessive” meaning either repeated unprofessional use or any single
event of consumption giving rise to significant intoxication or unprofessional
behavior; or
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(i)
Executive’s
material violation of any federal, state or local law that may result in a
direct or indirect financial loss to the Company or damage the Company’s
reputation.
If
Executive commits or is charged with committing any offense of the character
or
type specified in Section 5.3 (e), (f) or (i) above, then Charter at its option
may suspend the Executive with or without pay. If the Executive subsequently
is
convicted of, pleads guilty or nolo
contendere
(or
equivalent plea) to, or enters into any type of suspended imposition of sentence
or pretrial diversion program with respect to, any such offense (or any matter
that gave rise to the suspension), the Executive shall immediately repay any
and
all other compensation or other amounts paid hereunder from the date of the
suspension, and (x) (unless otherwise precluded by or because of the terms
of
the applicable plan) any of the restricted stock or options that vested after
the date of such suspension shall forthwith be cancelled, and (y) if any such
stock options, the shares subject thereto, or the restricted shares that vested
during such time period have theretofore been sold by Executive, the cash value
thereof shall be repaid to Charter immediately.
5.4. Definition
of “Good Reason.”
For
purposes of Section 5.1, and this Agreement, the term “Good Reason” shall mean
(a) any reduction in Executive’s Salary except as permitted hereunder, or (b)
instruction to relocate Executive’s primary workplace to a location that is more
than fifty (50) miles from the office where Executive is initially assigned
to
work as Executive’s principal office, or outside the greater metropolitan area
where such office is located, whichever is greater; in each case if Executive
objects in writing within 10 days, unless Charter retracts the reduction in
Salary or instruction to relocate within 30 days following Charter’s receipt of
timely written objection from Executive.
5.5. Termination
Pay.
Effective upon the termination of Executive’s employment, Charter will be
obligated to pay Executive (or, in the event of Executive’s death, the
Executive’s designated beneficiary as defined below) only such compensation as
is provided in this Section 5.5 and in Section 4, except to the extent otherwise
provided for in any Charter stock incentive or stock option plan, or any Charter
cash award plan (including, among others, the 2005 Executive Cash Award Plan),
approved by the Board. For purposes of this Section 5.5, Executive’s
designated beneficiary will be such individual beneficiary or trust, located
at
such address, as Executive may designate by notice to Charter from time to
time
or, if Executive fails to give notice to Charter of such a beneficiary,
Executive’s estate. Notwithstanding the preceding sentence, Charter will have no
duty, in any circumstances, to attempt to open an estate on behalf of Executive,
to determine whether any beneficiary designated by Executive is alive or to
ascertain the address of any such beneficiary, to determine the existence of
any
trust, to determine whether any person purporting to act as Executive’s personal
representative (or the trustee of a trust established by Executive) is duly
authorized to act in that capacity, or to locate or attempt to locate any
beneficiary, personal representative, or trustee.
5.5.1. Termination
by Executive for Good Reason or by Charter without Cause.
If prior
to expiration of the Term, Executive terminates Executive’s employment for Good
Reason, or Charter terminates Executive’s employment other than for Cause (but
not because of the Disability or death of Executive), Executive will be entitled
to receive on and subject to the conditions of this Agreement:
(a) Executive’s
then-existing Salary for the remainder of the Term specified in Section 1.2,
or
a period of twelve (12) months, whichever is greater. Subject to the provisions
of Section 5.6, this amount (the “Separation Payment”) will be paid over the
period of time used to calculate the Separation Payment (i.e., the balance
of
the Term at the time employment terminated or twelve (12) months, whichever
was
greater) in equal bi weekly instalments on the Company’s regular pay days for
executives,
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and
commencing with the first payday after all conditions in Section 5.6 are
satisfied; provided that, to the extent required to avoid the tax consequences
of Section 409A of the Code, the first payment shall cover all payments
scheduled to be made to Executive during the first six (6) months after the
date
Executive’s employment terminates, and the first such payment shall be delayed
until the day after the six (6) month anniversary of the date Executive’s
employment terminates.
(b) the
amount of Executive’s incentive compensation for the year during which the
termination is effective (prorated for the period from the beginning of the
year
in question until the effective date of termination) if and to the extent a
bonus otherwise is payable under the terms of the applicable incentive bonus
plan as determined by the Board, based upon results for the entire year. This
amount will be payable as and when incentive compensation under such plan for
the year in question is paid to other participants generally but not later
than
two and one-half months after the end of the calendar year in which the
termination is effective. The Board shall determine the amount of any such
bonus
and/or the extent to which any such bonus has been earned under the plan, in
its
sole discretion, considering results for the entire year and not just the period
of Executive’s employment;
(c) all
reasonable expenses Executive has incurred in the pursuit of Executive's duties
under this Agreement through the date of termination which are payable under
and
in accordance with this Agreement;
(d) a
lump
sum payment (net after deduction of taxes and other required withholdings)
equal
to (i) the greater of the number of full months remaining in the Term at the
time Executive’s employment terminated, or twelve (12), times (ii) the monthly
cost, at the time Executive’s employment terminated, for Executive to receive
under COBRA the paid coverage for health, dental and vision benefits then being
provided for Executive at the Company’s cost at the time Executive’s employment
terminated. This amount will be paid at the same time the payment is made under
Section 5.5.1 (a), and will not take into account future increases in costs
during the applicable time period; and
(e)
to
the
extent authorized and permitted by the terms of the applicable plan, any stock
options and restricted stock previously awarded to Executive will continue
to
vest under such plan for the period of time immediately following termination
of
Executive’s employment that is equal to the period of time used to calculate the
payment under Section 5.5.1 (a). This period of time qualifies, in the case
of a
payment under Section 5.5.1, as the period of time during which Executive is
receiving severance for purposes of Section 5.4 of the Charter Communications,
Inc. 2001 Stock Incentive Plan, as amended, and any applicable stock option
or
restricted stock agreement signed pursuant to a grant under such plan (and
the
payment specified in Section 5.5.1 (a) above qualifies as “severance” for
purposes of Section 5.4 of the Charter Communications, Inc. 2001 Stock Incentive
Plan.
Executive
shall be entitled to no other compensation or benefits except as expressly
provided in this paragraph.
5.5.2. Termination
by Executive without Good Reason or by Charter for Cause.
If prior
to the expiration of the Term or thereafter, Executive terminates Executive’s
employment prior to expiration of the Term without Good Reason or if Charter
terminates this Agreement for Cause, Executive will be entitled to receive
Executive’s then-existing Salary only through the date such termination is
effective and will be reimbursed for all reasonable expenses Executive has
incurred in the pursuit of Executive's duties under this Agreement through
the
date of termination which are payable under and in accordance with this
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Agreement.
Any unvested options and shares of restricted stock shall terminate as of the
date of termination unless otherwise provided for in any applicable plan or
award agreement. Executive shall be entitled to no other compensation or
benefits except as expressly provided in this paragraph.
5.5.3. Termination
upon Disability.
If prior
to the expiration of the Term, Executive’s employment is terminated by either
party as a result of Executive’s Disability, as determined under
Section 5.2, Charter will pay Executive his or her then-existing Salary
through the remainder of the calendar month during which such termination is
Effective and for the lesser of (i) six consecutive months thereafter, or (ii)
the date on which any disability insurance benefits commence under any
disability insurance coverage furnished by Charter to Executive. Any unvested
options and shares of restricted stock shall terminate upon a termination for
Disability unless otherwise provided for in any applicable plan or award
agreement. Executive shall be entitled to no other compensation or benefits
except as expressly provided in this paragraph.
5.5.4. Termination
upon Death.
If
Executive’s employment terminates because of Executive’s death, Executive will
be entitled to receive Executive’s then-existing Salary through the end of the
calendar month in which the death occurs and shall be paid for all reasonable
expenses Executive has incurred in the pursuit of Executive's duties under
this
Agreement through the date of termination which are payable under and in
accordance with this Agreement. Any unvested options and shares of restricted
stock shall terminate upon Death unless otherwise provided for in any applicable
plan or award agreement. Executive shall be entitled to no other compensation
or
benefits except as expressly provided in this paragraph.
5.5.5. Benefits.
Except
as otherwise required by law, Executive’s accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of employment, and Executive will be entitled to accrued benefits pursuant
to
such plans only as provided in such plans.
5.6. Conditions
To Payments. To
be
eligible to receive (and continue to receive) and retain the payments and
benefits described in Sections 5.5.1 (a) - (e), Executive must comply with
the
provisions of Sections 6 and 7 and first execute and deliver to Charter, and
comply with, an agreement, in form and substance satisfactory to Charter,
effectively releasing and giving up all claims Executive may have against
Charter or any of its subsidiaries or affiliates (and each of their respective
controlling shareholders, employees, directors, officers, plans, fiduciaries,
insurers and agents) arising out of or based upon any facts or conduct occurring
prior to that date. The agreement will be prepared by Charter, will be based
upon the standard form (if any) then being utilized by Charter for executive
separations when severance is being paid, and will be provided to Executive
at
the time Executive’s employment is terminated or as soon as administratively
practicable thereafter (not to exceed five (5) business days). The agreement
will require Executive to consult with Company representatives, and voluntarily
appear as a witness for trial or deposition (and to prepare for any such
testimony) in connection with, any claim which may be asserted by or against
Charter, any investigation or administrative proceeding, any matter relating
to
a franchise, or any business matter concerning Charter or any of its
transactions or operations. A copy of the current standard form being used
by
Charter for executive separations when severance is being paid has been provided
to Executive or is attached to this Agreement as Exhibit 1. It is understood
that the final document may not contain provisions specific to the release
of a
federal age discrimination claim if Executive is not at least forty (40) years
of age, and may be changed as Charter’s chief legal counsel considers necessary
and appropriate to enforce the same, including provisions to comply with changes
in applicable laws and recent court decisions. Payments under and/or benefits
provided by Sections 5.5.1 (a) - (e) will not be made unless and until Executive
executes and delivers that agreement to Charter within twenty-one (21) days
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after
delivery of the document (or such lesser time as Charter’s chief legal counsel
may specify in the document) and all conditions to the effectiveness of that
agreement and the releases contemplated thereby have been satisfied (including
without limitation the expiration of any applicable revocation period without
revoking acceptance). It is understood and agreed that if a form of agreement
called for by this Section 5.6 is not presented to Executive within forty-five
(45) days after Executive’s employment terminated, then the requirement that
Executive executes and delivers that agreement will be deemed to be satisfied.
6. Non-Disclosure
Covenant; Employee Inventions.
6.1. Acknowledgments
by Executive.
Executive acknowledges that (a) during the Employment Period and as
a part
of Executive’s employment, Executive will be afforded access to Confidential
Information (as defined below); (b) public disclosure of such Confidential
Information could have an adverse effect on the Company and its business;
(c) because Executive possesses substantial technical expertise and
skill
with respect to the Company’s business, Charter desires to obtain exclusive
ownership of each invention by Executive, and Charter will be at a substantial
competitive disadvantage if it fails to acquire exclusive ownership of each
invention by Executive; and (d) the provisions of this Section 6 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide Charter with exclusive ownership of
all
inventions and works made or created by Executive.
6.2. Confidential
Information.
(a) The
Executive acknowledges that during the Term Executive will have access to and
may obtain, develop, or learn of Confidential Information (as defined below)
under and pursuant to a relationship of trust and confidence.
The
Executive shall hold such Confidential Information in strictest confidence
and
never at any time, during or after Executive’s employment terminates, directly
or indirectly use for Executive’s own benefit or otherwise (except in connection
with the performance of any duties as an employee hereunder) any Confidential
Information, or divulge, reveal, disclose or communicate any Confidential
Information to any unauthorized person or entity in any manner whatsoever.
As
used
in
this
Agreement, the term “Confidential Information” shall include, but not be limited
to, any of the following information relating to Company learned by the
Executive during the Term or as a result of Executive’s employment with
Charter:
(a) information
regarding the Company’s business proposals, manner of the Company’s operations,
and methods of selling or pricing any products or services;
(b) the
identity of persons or entities actually conducting or considering conducting
business with the Company, and any information in any form relating to such
persons or entities and their relationship or dealings with the Company or
its
affiliates;
(c) any
trade
secret or confidential information of or concerning any business operation
or
business relationship;
(d) computer
databases, software programs and information relating to the nature of the
hardware or software and how said hardware or software are used in combination
or alone;
(e) information
concerning Company personnel, confidential financial information, customer
or
customer prospect information, information concerning subscribers, subscriber
and customer
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lists
and
data, methods and formulas for estimating costs and setting prices, engineering
design standards, testing procedures, research results (such as marketing
surveys, programming trials or product trials), cost data (such as billing,
equipment and programming cost projection models), compensation information
and
models, business or marketing plans or strategies, deal or business terms,
budgets, vendor names, programming operations, product names, information
on
proposed acquisitions or dispositions, actual performance compared to budgeted
performance, long-range plans, internal financial information (including
but not
limited to financial and operating results for certain offices, divisions,
departments, and key market areas that are not disclosed to the public in
such
form), results of internal analyses, computer programs and programming
information, techniques and designs, and trade secrets;
(f)
information concerning the Company’s employees, officers, directors and
shareholders; and
(g)
any
other trade secret or information of a confidential or proprietary
nature.
Executive
shall not make or use any notes or memoranda relating to any Confidential
Information except for the benefit of the Company, and will, at Charter’s
request, return each original and every copy of any and all notes, memoranda,
correspondence, diagrams or other records, in written or other form, that
Executive may at any time have within his possession or control that contain
any
Confidential Information.
Notwithstanding
the foregoing, Confidential Information shall not include information which
has
come within the public domain through no fault of or action by Executive or
which has become rightfully available to Executive on a non-confidential basis
from any third party, the disclosure of which to Executive does not violate
any
contractual or legal obligation such third party has to the Company or its
affiliates with respect to such Confidential Information. None of the foregoing
obligations and restrictions applies to any part of the Confidential Information
that Executive demonstrates was or became generally available to the public
other than as a result of a disclosure by Executive or by any other person
bound
by a confidentiality obligation to the Company in respect of such Confidential
Information.
Executive
will not remove from the Company’s premises (except to the extent such removal
is for purposes of the performance of Executive’s duties at home or while
traveling, or except as otherwise specifically authorized by Charter) any
Company document, record, notebook, plan, model, component, device, or computer
software or code, whether embodied in a disk or in any other form (collectively,
the “Proprietary Items”). Executive recognizes that, as between Charter and
Executive, all of the Proprietary Items, whether or not developed by Executive,
are the exclusive property of the Company. Upon termination of Executive’s
employment by either party, or upon the request of Charter during the Term,
Executive will return to Charter all of the Proprietary Items in Executive’s
possession or subject to Executive’s control, and Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
6.3. Proprietary
Developments.
6.3.1. Any
and
all inventions, products, discoveries, improvements, processes, methods,
computer software programs, models, techniques, or formulae (collectively,
hereinafter referred to as “Developments”), made, conceived, developed, or
created by Executive (alone or in conjunction with others, during regular work
hours or otherwise) during Executive’s employment, which may be directly or
indirectly useful in, or relate to, the business conducted or to be conducted
by
the Company will be
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promptly
disclosed by Executive to Charter and shall be Charter’s exclusive property. The
term “Developments” shall not be deemed to include inventions, products,
discoveries, improvements, processes, methods, computer software programs,
models, techniques, or formulae which were in the possession of Executive prior
to the Term. Executive hereby transfers and assigns to Charter all proprietary
rights which Executive may have or acquire in any Developments and Executive
waives any other special right which the Executive may have or accrue therein.
Executive will execute any documents and to take any actions that may be
required, in the reasonable determination of Charter’s counsel, to effect and
confirm such assignment, transfer and waiver, to direct the issuance of patents,
trademarks, or copyrights to Charter with respect to such Developments as are
to
be Charter’s exclusive property or to vest in Charter title to such
Developments; provided, however, that the expense of securing any patent,
trademark or copyright shall be borne by Charter.
The
parties agree that Developments shall constitute Confidential
Information.
6.3.2. "Work
Made for Hire."
Any work
performed by Executive during Executive's employment with Charter shall be
considered a "Work Made for Hire" as defined in the U.S. Copyright laws, and
shall be owned by and for the express benefit of Charter. In the event it should
be established that such work does not qualify as a Work Made for Hire,
Executive agrees to and does hereby assign to Charter all of Executive’s right,
title, and interest in such work product including, but not limited to, all
copyrights and other proprietary rights.
6.3.3. Cooperation.
Both
during the Term and thereafter, Executive shall fully cooperate with Company
in
the protection and enforcement of any intellectual property rights that relate
to services performed by Executive for Company, whether under the terms of
this
Agreement or prior to the execution of this Agreement. This shall include
without limitation executing, acknowledging, and delivering to Company all
documents or papers that may be necessary to enable Company to publish or
protect such intellectual property rights. Charter shall bear all costs in
connection with Executive's compliance with the terms of this
section.
7. Non-Competition
and Non-Interference.
7.1. Acknowledgments
by Executive.
Executive acknowledges and agrees that: (a) the services to be performed by
Executive under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character; (b) the Company competes with other businesses
that
are or could be located in any part of the United States; and (c) the provisions
of this Section 7 are reasonable and necessary to protect the Company’s
business and lawful protectable interests, and do not impair Executive’s ability
to earn a living.
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7.2. Covenants
of Executive.
For
purposes of this Section 7.2, the term “Restricted Period” shall mean the period
commencing on the Effective Date and terminating on the later of (i) the second
anniversary (or, in the case of Section 7.2 (a), the first anniversary), of
the
date Executive’s employment terminated, or (ii) the end of the Term. In
addition, the “Restricted Period” also shall encompass any period of time from
whichever anniversary date is applicable until and ending on the last date
Executive is to be paid any payment under Section 5.5. In consideration of
the
acknowledgments by Executive, and in consideration of the compensation and
benefits to be paid or provided to Executive by Charter, Executive covenants
and
agrees that during the Restricted Period, the Executive will not, directly
or
indirectly, for Executive’s own benefit or for the benefit of any other person
or entity other than the Company:
(a) in
the
United States or any other country or territory where the Company then conducts
its business: engage in, operate, finance, control or be associated with a
“Competitive Business” (defined below); serve as an officer or director of a
Competitive Business (regardless of where Executive then lives or conducts
such
activities); perform any work as an employee, consultant, contractor, or in
any
other capacity with, a Competitive Business; directly or indirectly invest
or
own any interest in a Competitive Business (regardless of where Executive then
lives or conducts such activities); or directly or indirectly provide any
services or advice to a any business, person or entity who or which is engaged
in a Competitive Business. A “Competitive Business” is any business, person or
entity who or which, anywhere within that part of the United States, or that
part of any other country or territory, where the Company conducts business:
owns or operates a cable television system, provides direct television or any
satellite-based, telephone-based internet based or wireless system for
delivering television, music or other entertainment programming, provides
telephony services using cable connection, provides data or internet service,
or
offers, provides, markets or sells any service or product of a type that is
offered or marketed by or directly competitive with a service or product offered
or marketed by the Company at the time Executive’s employment terminates; or who
or which in any case is preparing or planning to do so. The provisions of this
Section 7.2(a) shall not be construed or applied: (i) so as to prohibit
Executive from owning not more than one percent (1%) of any class of securities
that is publicly traded on any national or regional securities exchange, as
long
as Executive’s investment is passive and Executive does not lend or provide any
services or advice to such business or otherwise violate the terms of this
Agreement in connection with such investment; (ii) so as to prohibit Executive
from working as an employee in the cable television business for a
company/business that owns or operates cable television franchises (by way
of
current example, Cox or Comcast), provided that the company/business is not
providing cable services in any political subdivision/ geographic area where
the
Company has a franchise or provides cable services and the company/business
is
otherwise not engaged in a Competitive Business, and provided Executive does
not
otherwise violate the terms of this Agreement in connection with that work;
and
(iii) so as to prohibit Executive from engaging in the authorized practice
of
law (it being understood that this does not relieve Executive, or constitute
a
waiver by Charter, of any ethical obligation concerning the representation
of
any client in a matter adverse to Charter or one of its subsidiaries or
affiliates).
(b) contact,
solicit or provide any service to any person or entity that was a customer
franchisee, or prospective customer of the Company at any time during
Executive’s employment (a prospective customer being one to whom the Company had
made a business proposal within twelve (12) months prior to the time Executive’s
employment terminated); or directly solicit or encourage any customer,
franchisee or subscriber of the Company to purchase any service or product
of a
type offered by or competitive with any product or service provided by the
Company, or to reduce the amount or level of business purchased by such
customer, franchisee or subscriber from the Company; or take away or
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procure
for the benefit of any competitor of the Company, any business of a type
provided by or competitive with a product or service offered by the Company;
or
(c) solicit
or recruit for employment, any person or persons who are employed by Charter
or
any of its subsidiaries or affiliates, or who were so employed at any time
within a period of six (6) months immediately prior to the date Executive’s
employment terminated, or otherwise interfere with the relationship between
any
such person and the Company; nor will the Executive assist anyone else in
recruiting any such employee to work for another company or business or discuss
with any such person his or her leaving the employ of the Company or engaging
in
a business activity in competition with the Company. This provision shall not
apply to secretarial, clerical, custodial or maintenance employees;
(d) perform
any work as an employee, consultant, contractor, or in any other capacity with,
directly or indirectly invest or own any interest in, serve as an officer,
director or advisor or consultant to, or directly or indirectly provide any
services or advice to Cequel III (or any of its affiliates, or any entity
invested in or owned or controlled by Cequel III or any of its principals,
excluding publicly traded corporations in which such person(s) or entities
own
or control less than a 5% interest), or any company or business in which Cequel
III or any of Cequel III’s principals own an interest (other than a publicly
traded corporation in which such person(s) and entities own or control less
than
a 5% interest). It is understood that the principals of Cequel III are Xxxxx
Xxxx and Xxxxxx Xxxx. The provisions of this Section 7.2(d) shall not be
construed or applied so as to prohibit Executive from engaging in the authorized
practice of law (it being understood that this does not relieve Executive,
or
constitute a waiver by Charter, of any ethical obligation concerning the
representation of any client in a matter adverse to Charter or one of its
subsidiaries or affiliates); or
(e) disparage
or criticize, or make any derogatory or critical statement about, Charter or
any
of its subsidiaries or affiliates, or any of their respective present or former
directors, officers, employees, or agents.
If
Executive violates any covenant contained in this Section 7.2, then the term
of
the covenants in this Section shall be extended by the period of time Executive
was in violation of the same.
The
covenants contained in this Section shall be interpreted and applied in a manner
which complies with Missouri Supreme Court Rules of Professional Conduct Rule
4-5.6 and which does not in any way violate the Missouri Supreme Court Rules
of
Professional Conduct, understanding Executive is a licensed attorney.
7.3. Provisions
Pertaining to the Covenants.
Executive recognizes that the existing business of the Company extends to
various locations and areas throughout the United States and may extend
hereafter to other countries and territories and agrees that the scope of
Section 7.2 shall extend to any part of the United States, and any other country
or territory, where the Company hereafter operates or conducts business. It
is
agreed that the Executive’s services hereunder are special, unique, unusual and
extraordinary giving them peculiar value, the loss of which cannot be reasonably
or adequately compensated for by damages, and in the event of the Executive’s
breach of this Section, Charter shall be entitled to equitable relief by way
of
injunction or otherwise. If any provision of Section 6 or 7 of this Agreement
is
deemed to be unenforceable by a court (whether because of the subject matter
of
the provision, the duration of a restriction, the geographic or other scope
of a
restriction or otherwise), that provision shall not be rendered void but the
parties instead agree that the court shall amend and alter such
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provision
to such lesser degree, time, scope, extent and/or territory as will grant
Charter the maximum restriction on Executive’s activities permitted by
applicable law in such circumstances. Charter’s failure to exercise its rights
to enforce the provisions of this Agreement shall not be affected by the
existence or non existence of any other similar agreement for anyone else
employed by Charter or by Charter’s failure to exercise any of its rights under
any such agreement.
7.4. Notices.
In
order to preserve Charter’s rights under this Agreement, Charter is authorized
to advise any potential or future employer, any third party with whom Executive
may become employed or enter into any business or contractual relationship
with,
and any third party whom Executive may contact for any such purpose, of the
existence of this Agreement and its terms, and Charter shall not be liable
for
doing so.
7.5. Injunctive
Relief and Additional Remedy.
Executive acknowledges that the injury that would be suffered by Charter as
a
result of a breach of the provisions of this Agreement (including any provision
of Sections 6 and 7) would be irreparable and that an award of monetary
damages to Charter for such a breach would be an inadequate remedy.
Consequently, Charter will have the right, in addition to any other rights
it
may have, to obtain injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement,
and
Charter will not be obligated to post bond or other security in seeking such
relief. Without limiting Charter’s rights under this Section or any other
remedies of Charter, if Executive breaches any of the provisions of
Section 6 or 7, Charter will have the right to cease making any payments
otherwise due to Executive under this Agreement.
7.6. Covenants
of Sections 6 and 7 are Essential and Independent
Covenants.
The
covenants by Executive in Sections 6 and 7 are essential elements of
this
Agreement, and without Executive’s agreement to comply with such covenants,
Charter would not have entered into this Agreement or employed Executive.
Charter and Executive have independently consulted their respective counsel
and
have been advised in all respects concerning the reasonableness and propriety
of
such covenants, with specific regard to the nature of the business conducted
by
Charter. Executive’s covenants in Sections 6 and 7 are independent
covenants and the existence of any claim by Executive against Charter, under
this Agreement or otherwise, will not excuse Executive’s breach of any covenant
in Section 6 or 7. If Executive’s employment hereunder is terminated, this
Agreement will continue in full force and effect as is necessary or appropriate
to enforce the covenants and agreements of Executive in Sections 6 and
7.
Charter’s right to enforce the covenants in Sections 6 and 7 shall not be
adversely affected or limited by the Company’s failure to have an agreement with
another employee with provisions at least as restrictive as those contained
in
Sections 6 and 7, or by the Company’s failure or inability to enforce (or
agreement not to enforce) in full the provisions of any other or similar
agreement containing one or more restrictions of the type specified in Sections
6 or 7 of this Agreement.
8. Executive’s
Representations And Further Agreements.
8.1. Executive
represents, warrants and covenants to Charter that:
(a) Neither
the execution and delivery of this Agreement by Executive nor the performance
of
any of Executive’s duties hereunder in accordance with the Agreement will
violate, conflict with or result in the breach of any order, judgment,
employment contract, agreement not to compete or other agreement or arrangement
to which Executive is a party or is subject;
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(b) On
or
prior to the date hereof, Executive has furnished to Charter true and complete
copies of all judgments, orders, written employment contracts, agreements not
to
compete, and other agreements or arrangements restricting Executive’s employment
or business pursuits, that have current application to Executive;
(c) Executive
is knowledgeable and sophisticated as to business matters, including the subject
matter of this Agreement, and that prior to assenting to the terms of this
Agreement, or giving the representations and warranties herein, he has been
given a reasonable time to review it and has consulted with counsel of his
choice; and
(d) Executive
will not knowingly breach or violate any provision of any law or regulations
or
any agreement to which Executive may be bound.
(e) Executive
has not provided, nor been requested by Charter to provide, to Charter, any
confidential or non public document or information of a former employer that
constitutes or contains any protected trade secret, and will not use any
protected trade secrets in connection with the Executive’s
employment.
8.2. During
and subsequent to expiration of the Term, the Executive will
cooperate with Charter, and furnish any and all complete and truthful
information, testimony or affidavits in connection with any matter that arose
during the Executive’s employment, that in any way relates to the business or
operations of the Company or any of its parent or subsidiary corporations or
affiliates, or of which the Executive may have any knowledge or involvement;
and
will consult with and provide information to Charter and its representatives
concerning such matters. Subsequent to the Term, the parties will make their
best efforts to have such cooperation performed at reasonable times and places
and in a manner as not to unreasonably interfere with any other employment
in
which Executive may then be engaged. Nothing in this Agreement shall be
construed or interpreted as requiring the Executive to provide any testimony,
sworn statement or declaration that is not complete and truthful. If Charter
requires the Executive to travel outside the metropolitan area in the United
States where the Executive then resides to provide any testimony or otherwise
provide any such assistance, then Charter will reimburse the Executive for
any
reasonable, ordinary and necessary travel and lodging expenses incurred by
Executive to do so provided the Executive submits all documentation required
under Charter’s standard travel expense reimbursement policies and as otherwise
may be required to satisfy any requirements under applicable tax laws for
Charter to deduct those expenses. Nothing in this Agreement shall be construed
or interpreted as requiring the Executive to provide any testimony or affidavit
that is not complete and truthful.
9. General
Provisions.
9.1. Binding
Effect; Delegation of Duties Prohibited.
Neither
this Agreement nor any rights or obligations of Charter under this Agreement
may
be assigned or transferred by Charter except that such Agreement, rights and/or
obligations may be assigned or transferred pursuant to a merger or
consolidation, or the sale or liquidation of all or substantially all of the
assets of Charter, provided that the assignee or transferee is the successor
to
all or substantially all of the assets of Charter and such assignee or
transferee assumes the liabilities, obligations and duties of Charter, as
contained in this Agreement, either contractually or as a matter of law. The
duties and covenants of Executive under this Agreement, being personal, may
not
be assigned or delegated except that Executive may assign payments due hereunder
to a trust established for the benefit of Executive's family or to Executive's
estate or to any partnership or trust
-15-
entered
into by Executive and/or Executive's immediate family members (meaning,
Executive's spouse and lineal descendants). Charter also shall have the right
to
delegate its duties under this Agreement and assign its rights under this
Agreement to any subsidiary or affiliate, provided
however,
such
assignment does not render this Agreement void or unenforceable. Any actual
or
attempted delegation or assignment in contravention of this Section 9.1
shall be null and void ab
initio.
9.2. Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if
sent by
a nationally recognized overnight delivery service (receipt requested). Notices
and other communications under this Agreement shall be sent, in the case of
Charter to the attention of the Chairman of the Board of Directors and General
Counsel at Charter’s principal business office and, in the case of Executive, to
the address or facsimile number set forth below (or to such other address or
facsimile number as Executive may designate by notice to Charter):
_________________
_________________
_________________
9.3.
Entire
Agreement; Amendments.
(a)
This
Agreement contains the entire agreement between the parties with respect to
its
subject matter and supersedes all prior oral and written communications,
agreements and understandings between the parties with respect to terms and
conditions of employment, including, without limitation, specifically that
certain November 22, 2004 memorandum regarding severance guidelines for
executives; provided, however, that this Agreement does not cancel any prior
award agreement entered into by Executive pursuant to or under any stock option
or restricted stock plan, nor relieve Executive of his or her obligations under
any agreement concerning confidentiality of information, non competition, non
solicitation of employees or customers, non disparagement or assignment of
inventions. Superseding such other agreements shall be deemed to not be a
termination thereunder. To the extent any terms of this Agreement conflict
with
the terms of any prior award agreement entered into by Executive pursuant to
or
under any stock option or restricted stock plan, the terms of this Agreement
shall govern.
(b)
Neither this Agreement nor any of its terms may be amended, added to, changed
or
waived except in a writing signed by Executive and the President and/or Chief
Executive Officer of Charter or designee thereof. Notwithstanding anything
herein to the contrary, Charter hereby reserves the right to unilaterally amend
this Agreement as necessary to avoid the imposition of liability under or as
a
consequence of the application of the provisions of Section 409A of the Code.
(c)
Executive shall not be entitled to, and waives any rights under or with respect
to, severance or other benefits under any existing or future severance plans,
policies, programs or guidelines established or published by Charter, including,
but not limited to, that certain November 22, 2004 memorandum regarding
severance guidelines for executives.
9.4. Survival,
Captions. This
Agreement shall inure to the benefit of Charter, its successors and assigns.
This Agreement shall survive the termination of Executive’s employment. The
captions used
-16-
in
this
Agreement do not limit the scope of the provisions. And shall not be used
to
interpret the meaning of the terms of this Agreement. Unless otherwise expressly
provided, the word “including” does not limit the preceding words or
terms.
9.5. Governing
Law; Jurisdiction and Venue.
This
Agreement is deemed to be accepted and entered into in the State of Missouri
and
shall be governed by and construed and interpreted according to the internal
laws of the State of Missouri without reference to conflicts of law principles.
In any suit to enforce this Agreement, venue and jurisdiction is proper in
the
St. Louis County Circuit Court and (if federal jurisdiction exists) the U.S.
District Court for the Eastern District of Missouri, and Executive waives all
objections to jurisdiction in any such forum and any defense or claim that
either such forum is not a proper forum, is not the most convenient forum,
or is
an inconvenient forum.
9.6. Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
9.7 Counterparts;
Effective by Facsimile Signatures.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. This
Agreement may be executed by facsimile signatures.
9.8. Successors;
Binding Agreement.
Subject
to the provisions of Section 9.1, this Agreement shall inure to the benefit
of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of
Executive and successors and assigns of Charter. Other than Company and
Executive, and, subject to Section 9.1 hereof, their respective successors
and assigns, there are no intended beneficiaries of this Agreement.
9.9. Withholding
Taxes; Delay In Payments.
Company
may withhold from any amounts payable under this Agreement such Federal, state
and local taxes as may be required to be withheld pursuant to any applicable
law
or regulation. In no event shall Charter be required to make, or Executive
be
required to receive, any payment called for by this Agreement if such payment
at
that time shall result in the application of the tax consequences spelled out
in
Section 409A of the Code. In that case, payment will be made at such time as
will not result in the imposition of any adverse tax consequences spelled out
in
Section 409A of the Code.
9.10. General
Satisfaction.
Except
as otherwise specified in this Agreement, this Agreement supersedes and replaces
any prior employment or other agreement between Executive and Charter, and
Charter shall not have any further liability arising out or in connection with
any such prior agreement, whether oral or written, made on or before the
Effective Time with or for the benefit of Executive.
IN
WITNESS WHEREOF,
the
parties have executed and delivered this Agreement as of the date above first
written above.
-00-
XXXXXXX
XXXXXXXXXXXXXX, INC.
By:/s/
Xxxx
Xxxx
/s/
Xxx Xxx X. Xxxxxxxx
Xxx
Xxx
X. Xxxxxxxx
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