EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), made and entered into as of
March 31, 2005 (the "Effective Date"), is by and between CHARTER COMMUNICATIONS,
INC, a Delaware corporation ("Corporation"), and XXXXXXX X. XXXXXX, an
individual resident of Colorado (the "Executive").
RECITALS
The Corporation desires to employ the Executive as its Executive Vice
President and Chief Operating Officer effective as of the Effective Date, and
the Executive desires to accept such employment effective as of the Effective
Date, on the terms and conditions set forth herein.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
Section 1. Employment. The Corporation hereby employs the Executive, and
the Executive hereby accepts employment, all on the terms and conditions
herein. This agreement supersedes any previous letter of engagement or
terms of employment.
Section 2. Services; Extent of Services.
(a) Duties and Responsibilities. The Executive is hereby employed as
the Executive Vice President and Chief Operating Officer of the
Corporation, the authority, duties and responsibilities of which will be
as follows: the Executive will (i) manage, review and supervise the
operations and support functions under his direct control; (ii) report to
Xxxxxx X. May, the Interim Chief Executive Officer of the Corporation,
until such time that a permanent Chief Executive Officer of the
Corporation is appointed and following such time that a permanent Chief
Executive Officer of the Corporation is appointed, report to such Chief
Executive Officer; (iii) comply with the various policies, procedures and
codes of conduct of the Corporation in effect from time to time which
apply to other employees and executive officers.
(b) Full Business Attention. The Executive will devote his full
business attention and energies to the business of the Corporation during
the Term (as defined below) and unless otherwise mutually agreed will
physically report and will render all the Executive's services
contemplated hereunder to the Corporation at its offices in the St Louis,
Missouri area; provided, however, that the foregoing requirement to render
services in St Louis shall not apply when the Executive is traveling on
company business.
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(c) Other Activities. Notwithstanding anything to the contrary
contained in Section 2(b), the Executive will be permitted to engage in
the following activities, provided that such activities do not materially
interfere or conflict with the Executive's duties and responsibilities to
the Corporation:
(i) the Executive may serve on the governing boards of, or
otherwise participate in, a reasonable number of trade associations
and charitable organizations whose purposes are not inconsistent
with the activities and the image of the Corporation;
(ii) the Executive may engage in a reasonable amount of
charitable activities and community affairs; and
(iii) subject to the prior approval of the Nominating /
Corporate Governance Committee of the Board of Directors of the
Corporation, the Executive may serve on the board of directors of up
to one business corporations or other for-profit entities, provided
that they do not compete, directly or indirectly, with the
Corporation.
Section 3. Compensation.
(a) Base Salary. In consideration of the services provided
hereunder, the Corporation shall pay the Executive during the Term a
salary at an annual rate of $575,000 per year (the "Base Salary") in
regular installments in accordance with the Corporation's pay practices
for executive officers generally. This Base Salary will be reviewed on an
annual basis and may be adjusted upward at the discretion of the Board.
(b) Bonus. During the Term, the Executive will be entitled to
receive cash bonus payments in an amount per year targeted at 80% of the
amount of the Base Salary in accordance with the senior management bonus
plan. The target bonus is in line with other senior executives of the
company and only the CEO position carries a higher percentage. If the
Executive is terminated for any reason other than Cause, he shall receive
a pro-rated bonus no later than thirty (30) days following the date of
termination in accordance with the level of payout for the bonus plan and
subject to approval by the board. The pro-rated bonus will be calculated
based upon financial results for the fiscal year in question as of the end
of the month immediately prior to the month in which employment
terminated.
(c) Benefits. During the Term, the Executive will be entitled to the
following benefits:
(i) Employee Benefit Plans. The Executive will be entitled to
participate in all employee benefit plans of the Corporation
(including incentive or equity compensation plans) on such terms as
are offered for
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the general benefit of other senior executive officers of the
Corporation, subject to the provisions of such plans as may be in
effect from time to time. Shares of restricted stock not tied to
performance will be granted as a "one off' award as a recognition of
this important promotion.
(ii) Vacation; Sick Leave. The Executive will be entitled to
vacation and sick leave on such terms as are offered for the benefit
of other senior executives of the Corporation in accordance with and
upon the terms of Corporation policies.
(d) Expense Reimbursement. The Corporation shall reimburse the
Executive, in accordance with the Corporation's policies, for all
reasonable business expenses incurred by the Executive in connection with
the performance of the Executive's obligations hereunder.
(e) Taxes. All payments made by the Corporation under this Agreement
will be subject to withholding of such amounts as is required pursuant to
any applicable law or regulation.
(f) Equity Incentives. The Corporation agrees to provide the
Executive with equity incentives commensurate with the Executive's
position and responsibilities with the Corporation as determined by the
board in its discretion.
(g) Relocation Expenses. The Corporation shall reimburse the
Executive for the following expenses (to the extent they are reasonable
and documented) incurred by the Executive in connection with relocating
his family to a new primary residence in St Louis Missouri or surrounding
communities: Expenses will be reimbursed in accordance with and upon the
terms of the Corporation's relocation policy and in any event no later
than March 15, 2006. If the Executive's employment is terminated for any
reason other than Cause within the first 24 months following the Effective
Date, he will receive reasonable relocation expenses back to the city of
his choice within the 48 contiguous states in accordance with and upon the
terms of the Corporation's relocation policy at the time.
Section 4. Term. The term of this Agreement will commence on the
Effective Date and will continue for a term of three (3) years following
the Effective Date (the "Term"), unless earlier terminated pursuant to the
provisions of Section 5 below. This contract will be reviewed and
considered for extension at 18 month intervals during Executive's
employment during the Term.
The provisions of Sections 8-10 and any other provisions relating to
their enforcement survive termination of employment and termination of
this Agreement.
Section 5. Termination of Employment.
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(a) Termination by Corporation for Cause. The Executive's employment
by the Corporation will terminate immediately upon written notice to the
Executive if the Corporation elects to discharge the Executive for Cause.
For purposes hereof, "Cause" means:
(i) the Executive's act of fraud, misappropriation, or
embezzlement with respect to the Corporation;
(ii) the Executive's indictment for, conviction of, or plea of
guilt or no contest to, any felony;
(iii) the 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 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; or
(iv) a determination by any agency or instrumentality of any
state or the United States of America, including but not limited to
the United States Department of Justice, the United States
Securities and Exchange Commission or any committee of the United
States Congress, that the Executive's employment impairs or impedes
the ability of such agency or instrumentality to conduct
investigations, and/or prosecute proceedings, into the actions or
in-actions of any current or former employee of the Corporation
(collectively, the "Investigations");
(v) the Executive's failure after reasonable prior written
notice to comply with any valid and legal directive of the Chief
Executive Officer or the Board of Directors of the Corporation; or
(vi) Other than as provided in 5(a)(i) - (v) above, the
Executive's material breach of any provision of this Agreement that
is not remedied within fifteen (15) days of the Executive being
provided written notice thereof from the Corporation.
Repeated breaches of a similar nature shall not require additional notices
as provided Section 5(a)(v) or (vi).
(b) Termination by Corporation Without Cause. The Corporation may
terminate the Executive's employment without Cause upon at least thirty
(30) days prior written notice to the Executive.
(c) Death or Disability. The Executive's employment by the
Corporation will immediately terminate upon the Executive's death and, at
the
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option of either the Executive or the Corporation, exercisable upon
written notice to the other party, may terminate upon the Executive's
Disability. For purposes of this Agreement, "Disability" will occur if (i)
the Executive becomes eligible for full benefits under a long-term
disability policy provided by the Corporation, if any, or (ii) the
Executive has been unable, due to physical or mental illness or
incapacity, to perform the essential duties of his employment with
reasonable accommodation for a continuous period of ninety (90) days or an
aggregate of one-hundred eighty (180) days during any consecutive 12-month
period.
(d) Termination by the Executive for Good Reason. The Executive may
terminate the Executive's employment at any time upon thirty (30) days'
written notice to the Corporation specifying the basis for the claim of
Good Reason (if the Corporation fails to cure such event or rectify the
basis for the claim of Good Reason within such thirty-day period) (any
such termination referenced in clauses (i)-(v) below, constituting
termination for "Good Reason"):
(i) if the Corporation fails to make the payments or offer the
benefits required by Section 3 hereof within thirty (30) days after
any such payments or benefits are due;
(ii) if the Executive's duties, authority or responsibilities
as Chief Operating Officer are substantially diminished, regardless
of whether such diminution of duties is accompanied by a change in
the Executive's title;
(iii) if the Corporation requires the Executive to change the
Executive's principal place of business from the greater
metropolitan St. Louis, Missouri area without the Executive's
consent (it being understood that required travel from such location
shall not be a change in such principal place of business);
(iv) except as otherwise set forth in clauses (i), (ii) and
(iii) above, if the Corporation materially breaches any of its other
duties hereunder.
(e) Termination by the Executive without Good Reason. The Executive
may terminate the Executive's employment without Good Reason upon at least
thirty (30) days prior written notice to the Corporation.
(f) Change in Control. The Executive may terminate the Executive's
employment within the sixty (60) day period immediately following a
"Change in Control." For purposes of this Agreement, a "Change in Control"
will be deemed to have taken place if, whether in a single transaction or
a series of transactions:
(i) any person or entity, including a "group" as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended,
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other than the Corporation, or any employee benefit plan of the
Corporation or any of its subsidiaries, becomes the beneficial owner
of Corporation securities having 50% or more of the combined voting
power of the then outstanding securities of the Corporation that may
be cast for the election of directors of the Corporation (other than
as a result of the issuance of securities initiated by the
Corporation in the ordinary course of business). This does not
include, and a Change in Control does not result from, any
transaction or series of transactions where any individual or group
who as of the Effective Date own in the aggregate more than 30% of
the Corporation's outstanding capital stock (collectively, and
individually, a "Controlling Shareholder") acquire additional
shares, or any situation where following the transaction or series
of transactions in question the Controlling Shareholder retains
effective voting control of the Corporation;
(ii) as the result of, or in connection with, any cash tender
or exchange offer, merger or other business combination, or any
combination of the foregoing transactions, the holders of all the
Corporation's securities entitled to vote generally in the election
of directors of the Corporation immediately prior to such
transaction constitute, following such transaction, less than a
majority of the combined voting power of the then-outstanding
securities of the surviving entity (or in the event each entity
survives, the surviving entity that is the parent entity) entitled
to vote generally in the election of the directors of such surviving
entity (or in the event each entity survives, the surviving entity
that is the parent entity) after such transactions; or
(iii) the Corporation sells, transfers or leases all or
substantially all of the assets of the Corporation and its
subsidiaries, collectively. This does not include, and a Change in
Control does not result from, a sale, lease or transfer to a
Controlling Shareholder or to an entity majority-owned, controlled
by or under common control with a Controlling Shareholder.
Section 6. Effect of Termination.
(a) Termination by the Corporation for Cause; Termination by the
Executive Without Good Reason. Upon termination of Executive's employment
(i) by the Corporation for Cause pursuant to Section 5(a) above, or (ii)
by the Executive without Good Reason pursuant to Section 5(e) above, the
Executive only will be entitled to receive (i) base salary and bonus
payments, payments in respect of accrued but unpaid vacation and
reimbursement for business expenses, in each case due, accrued or payable
as of the date of such termination, and (ii) such vested stock options and
other benefits as the Executive may be entitled to
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receive under any stock option or other employee benefit plan, but will
not be entitled to receive the Severance Payment (as defined in Section
6(c) below).
(b) Other Termination. Upon termination of the Executive's
employment (i) by the Corporation without Cause pursuant to Section 5(b)
above (including termination without Cause following a Change in Control),
(ii) by the Corporation or the Executive as the result of the death or
Disability of the Executive pursuant to Section 5(c) above, (iii) by the
Executive within the sixty (60) day period immediately following a Change
in Control pursuant to Section 5 (f), or (iv) by the Executive for Good
Reason pursuant to Section 5(d) above, the Executive only will be entitled
to receive (1) base salary and any outstanding bonus payments due in
accordance with Section 3 (b) and payments in respect of accrued but
unpaid vacation and reimbursement for business expenses, in each case due,
accrued or payable as of the date of such termination), (2) such vested
stock options and other benefits as Executive may be entitled to receive
under any equity incentive plan or any other stock option or other
employee benefit plan, and (3) the Severance Payment (as determined
pursuant to Section 6(c) below and subject to the conditions spelled out
in this Agreement). Fifty percent (50%) of the Severance Payment will be
payable within fifteen (15) days after termination of employment and
satisfaction of all conditions to payment, and the balance of the
Severance Payment will be payable in equal instalments on the
Corporation's regular paydays over the balance of the Term. [Note: per the
terms of the option plans, vesting of options during the severance period
is dependent upon the employee signing a release.]
(c) Severance Payment. For purposes of this Agreement, "Severance
Payment" means:
(i) in the event of any termination by the Corporation without
Cause pursuant to Section 5(b) above (including termination without
Cause following a Change in Control), an amount equal to the
Executive's Base Salary for the number of months remaining in the
Term at the date of termination;
(ii) in the event of any termination by the Executive for Good
Reason pursuant to Section 5(d), or in the event of a termination by
Executive within sixty (60) days following a Change in Control, an
amount equal to the Executive's Base Salary for the number of months
remaining in the Term at the date of termination;
(iii) in the event of any termination by the Corporation or
the Executive as the result of the death or Disability of the
Executive pursuant to Section 5(c) above, an amount equal to the
Executive's Base Salary for a period of three (3) full months (which
payment shall be in addition to and not in lieu of any benefits
payable to the Executive under any group
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long term or short term disability insurance plan of the Corporation
in which the Executive participates).
Notwithstanding any provision of this Agreement to the contrary, the
Severance Payment (or any other payment called for by this Agreement to be
paid following termination of employment) will not be made within the
period of time following termination of employment that would result in
the application of Section 409A of the Internal Revenue Code, and the
Severance Payment is subject to forfeiture for violations of Sections 8 or
9 of this Agreement (in addition to any other remedies available to the
Corporation for a breach of such provisions). The amount of Severance
Payment to be forfeited shall be prorated based upon the date of the
violation.
Section 7. Miscellaneous.
(a) Notices. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed
to have been duly given when (i) delivered by hand (with written
confirmation of receipt), (ii) sent by facsimile with confirmation of
transmission by the transmitting equipment, (iii) received by the
addressee, if sent by certified mail, return receipt requested, or (iv)
received by the addressee, if sent by a nationally recognized overnight
delivery service, return receipt requested, in each case to the
appropriate addresses, or facsimile numbers set forth below (or to such
other addresses, or facsimile numbers as a party may designate by notice
to the other parties):
the Executive: Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
the Corporation: Charter Communications
Charter Plaza
000000 Xxxxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000-0000
Attention: Chief Executive Officer
with a copy to: Charter Communications
Charter Plaza
000000 Xxxxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Senior Vice President Human Resources
Fax: (000) 000-0000
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(b) Power and Authority. Each party warrants and represents that it
has full power and authority to enter into and perform this Agreement, and
the person signing this Agreement on behalf of such party has been
properly authorized and empowered to enter into this Agreement.
(c) Remedies. The rights and remedies of the parties to this
Agreement are cumulative and not alternative.
(d) Waiver. No failure to exercise, and no delay in exercising, on
the part of either party, any privilege, any power or any right hereunder
will operate as a waiver thereof, nor will any single or partial exercise
of any privilege, right or power hereunder preclude further exercise of
any other privilege, right or power hereunder.
(e) Entire Agreement and Modification. This Agreement constitutes
the entire agreement between the parties with respect to the subject
matter of this Agreement and supersedes all prior agreements, whether
written or oral, between the parties with respect to its subject matter
and constitutes a complete and exclusive statement of the terms of the
agreement between the parties with respect to its subject matter. This
Agreement may not be amended or waived except by a written agreement
signed by the party to be charged with the amendment.
(f) Assignment. This Agreement may not be assigned by any party
hereto without the prior written consent of the non-assigning party;
provided, however, that the Corporation may assign this Agreement without
the consent of the Executive in connection with any transaction which
constitutes a Change of Control. Subject to the foregoing, this Agreement
will be binding upon and shall inure to the benefit of (i) in the case of
the Executive, his heirs, executors, administrators and legal
representatives, and (ii) in the case of the Corporation, its permitted
successors and assigns.
(g) 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. The
parties further agree that if any provision contained herein is, to any
extent, held invalid or unenforceable in any respect under the laws
governing this Agreement, they shall take any actions necessary to render
the remaining provisions of this Agreement valid and enforceable to the
fullest extent permitted by law and, to the extent necessary, shall amend
or otherwise modify this Agreement to replace any provision contained
herein that is held invalid or unenforceable with a valid and enforceable
provision giving effect to the intent of the parties.
(h) Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections"
refer to the
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corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of
such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding
words or terms. The language used in the Agreement will be construed, in
all cases, according to its fair meaning, and not for or against any party
hereto. The parties acknowledge that each party has reviewed this
Agreement and that rules of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be
available in the interpretation of this Agreement.
(i) Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the State of Missouri, without regard to
the conflict of law provisions thereof. It is deemed to be entered into
and accepted in the State of Missouri.
(j) Counterparts. 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.
(k) Attorneys' Fees. The parties agree that in the event it becomes
necessary to seek judicial remedies for the breach or threatened breach of
this Agreement, the prevailing party will be entitled, in addition to all
other remedies, to recover from the non-prevailing party all costs of such
judicial action, including but not limited to, costs of investigation and
defense and reasonable attorneys' fees and expenses, and also including
all such expenses related to any appeal.
(l) Further Assurances. Each party hereto shall perform such further
acts and execute and deliver such further documents as may be reasonably
necessary to carry out the provisions of this Agreement.
(m) No Third Party Beneficiary. This Agreement shall not confer any
rights or remedies upon any person or entity other than the parties hereto
and their respective successors and assigns.
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Section 8. Non-Competition.
(a) The Executive acknowledges and recognizes the highly-competitive
nature of the business conducted by the Corporation and its subsidiaries
and affiliates and accordingly agrees that, in consideration of this
Agreement and the premises contained herein, he shall not, for his own
benefit or for the benefit of any other person or entity other than the
Corporation, during the period commencing on the Effective Date hereof and
terminating on the second anniversary of the expiration or termination of
the Term hereof (or termination of employment, if later than the
expiration of the Term) for any reason whatsoever:
(i) contact, solicit or service any person or entity that was
a customer or prospective customer of the Corporation or any of its
subsidiaries or affiliates at any time during the Term hereof (or
the termination of the Executive's employment, if later) (a
prospective customer being one to which the Corporation had made a
written financial proposal within twelve (12) months prior to the
time of the termination of the Term); or directly solicit or
encourage any customer or subscriber of the Corporation to purchase
any service or product of a type offered by or competitive with any
product or service provided by the Corporation, or to reduce the
amount or level of business purchased by such customer from the
Corporation; or take away or procure for the benefit of any
competitor of the Corporation, any business of a type provided by or
competitive with a product or service offered by the Corporation; or
(ii) solicit or recruit for employment, or as a director, any
person or persons who are employed by the Corporation or who were at
any time (within a period of six (6) months immediately prior to the
date of the termination of the Term) employed by the Corporation,
otherwise interfere with the relationship between such persons and
the Corporation; 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
Corporation or engaging in a business activity in competition with
the Corporation.
(iii) perform any work as an employee, consultant, contractor,
or in any other capacity with, directly or indirectly own any
interest in, 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.
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(b) The Executive understands that the foregoing restrictions may
limit his ability to earn a similar amount of money in a business similar
to the business of the Corporation or its subsidiaries or affiliates, but
he nevertheless believes that he has received and will receive sufficient
consideration and other benefits as an employee of the Corporation and as
otherwise provided hereunder to clearly justify such restrictions which,
in any event (given his education, skills and ability), the Executive does
not believe would prevent him from earning a living.
(c) 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, the
Corporation shall be entitled to equitable relief by way of injunction or
otherwise. If the period of time or area herein specified should be
adjudged unreasonable in any court proceeding, then the period of time
shall be reduced by such number of months or the area shall be reduced by
elimination of such portion thereof as deemed unreasonable, so that this
covenant may be enforced during such lesser period of time and in such
lesser areas and scope as will grant the Corporation the maximum
restriction on the Executive's activities permitted by applicable law in
such circumstances.
Section 9. Confidential Information.
(a) The Executive acknowledges that during the Term he will have
access to and may obtain, develop, or learn of Confidential Information
(as defined below).
(b) The Executive agrees that he shall hold such Confidential
Information in strictest confidence and that the Executive shall not at
any time, during or after the Term, in any manner, either directly or
indirectly, use (for his own benefit or otherwise), divulge, disclose or
communicate to any unauthorized person or entity in any manner whatsoever
any Confidential Information.
(c) Under this Agreement, the term "Confidential Information" shall
include, but not be limited to, any of the following information relating
to the Corporation or its affiliates learned by the Executive during the
Term or as a result of his employment with the Corporation:
(i) information regarding the Corporation's business
proposals, manner of the Corporation's operations, and methods of
selling or pricing any products or services;
(ii) the identity of persons or entities actually conducting
or considering conducting business with the Corporation, and any
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information in any form relating to such persons or entities and
their relationship or dealings with the Corporation or its
affiliates;
(iii) any trade secret or confidential information of or
concerning any business operation or business relationship;
(iv) 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;
(v) information concerning Corporation personnel, confidential
financial information, customer or customer prospect information,
information concerning subscribers, subscriber and customer 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, results of internal
analyses, computer programs and programming information, techniques
and designs, and trade secrets; and
(vi) any other trade secret or information of a confidential
or proprietary nature.
(d) During the Term, the Executive shall use, divulge, disclose or
communicate Confidential Information only in the scope of his employment
with the Corporation and only as expressly directed or permitted by the
Corporation. The Executive shall not, at any time following the expiration
or termination of this Agreement for any reason whatsoever, use, divulge,
disclose or communicate for any purpose any Confidential Information. The
Executive shall not make or use any notes or memoranda relating to any
Confidential Information except for the benefit of the Corporation, and
will, at the Corporation'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 he may at any time have within his
possession or control that contain any Confidential Information.
(e) Except as provided for herein below, the Executive agrees that
he will treat the terms of this Agreement as confidential, and shall not
directly or indirectly disclose them in any manner except: (i) as mutually
agreed upon in writing by the parties to this Agreement; (ii) in legal
documents filed with the court or any arbitrator in any action to enforce
the terms of this Agreement; (iii) pursuant to a valid order or
regulation; (iv) as otherwise required by law or
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regulation; or (v) to his attorney, financial advisors, accountant, and/or
spouse, provided that prior to any such disclosure, that individual must
agree to treat as confidential all information disclosed.
(f) It is agreed that in the event of the Executive's breach of this
Section, the Corporation shall be entitled to equitable relief by way of
injunction or otherwise.
(g) Notwithstanding the foregoing, Confidential Information shall
not include information which has come within the public domain through no
fault of or action by the Executive or which has become rightfully
available to the Executive on a non-confidential basis from any third
party, the disclosure of which to the Executive does not violate any
contractual or legal obligation such third party has to the Corporation or
its affiliates with respect to such Confidential Information.
Section 10. Proprietary Developments.
(a) Any and all inventions, products, discoveries, improvements,
processes, methods, computer software programs, models, techniques, or
formulae (collectively, hereinafter referred to as "Developments"), made,
developed, or created by the Executive (alone or in conjunction with
others, during regular work hours or otherwise) during the Executive's
employment, which may be directly or indirectly useful in, or relate to,
the business conducted or to be conducted by the Corporation will be
promptly disclosed by the Executive to the Corporation and shall be the
Corporation'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 the Executive prior to the Term.
The Executive hereby transfers and assigns to the Corporation all
proprietary rights which the Executive may have or acquire in any
Developments and the Executive waives any other special right which the
Executive may have or accrue therein. The Executive agrees to execute any
documents and to take any actions that may be required, in the reasonable
determination of the Corporation's counsel, to effect and confirm such
assignment, transfer and waiver.
(b) The Executive will execute any documents necessary or advisable,
in the reasonable determination of the Corporation's counsel, to direct
the issuance of patents, trademarks, or copyrights to the Corporation with
respect to such Developments as are to be the Corporation's exclusive
property or to vest in the Corporation title to such Developments;
provided, however, that the expense of securing any patent, trademark or
copyright shall be borne by the Corporation.
(c) The parties agree that Developments shall constitute
Confidential Information.
14 of 16
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15 of 16
[signature page of Employment Agreement]
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be executed by themselves or by their duly authorized representatives as of the
day and date first written above.
THE CORPORATION:
CHARTER COMMUNICATIONS
By: /s/ Xxxxxx X. May
------------------------------
Name: Xxxxxx X. May
-------------
Its: Interim Chief Executive Officer
-------------------------------
THE EXECUTIVE:
/S/ XXXXXXX X. XXXXXX
--------------------------------------
XXXXXXX X. XXXXXX
