SEPARATION AGREEMENT AND RELEASE
Exhibit
10.3
SEPARATION
AGREEMENT AND RELEASE
FOR
XXXXXXX X. XXXXXX
This
Separation Agreement and Release (this “Agreement”) is entered into between
Charter Communications, Inc. (the “Company” or “Charter”) and me, Xxxxxxx X.
Xxxxxx, as a condition to my receiving payments pursuant to my Employment
Agreement with Charter dated August 1, 2007 (the “Employment Agreement”) in
connection with the termination of my employment with Charter as of April 4,
2008 (the “Termination Date”). The Company and I hereby agree as
follows:
(a) Payments And Benefits
Payable Per The Employment Agreement: Provided I am not
terminated for breach of the terms of this agreement or of my Employment
Agreement prior thereto, I shall remain employed by Charter pursuant to the
terms of my Employment Agreement through the Termination Date, I shall receive
salary at my current annual rate of $515,000 in bi-weekly installments as such
installments are normally paid to senior executives (with all salary
installments due but not paid prior to my execution of this Agreement to be paid
on the first payday after all conditions in Section 15(g) of the
Employment Agreement are satisfied); I shall continue to receive all benefits,
without interruption, including, without limitation, health insurance; and I
shall continue to participate in all medical and child care flex spending
accounts I have previously selected, all through the Termination
Date. In addition, in exchange for my execution and delivery of this
Agreement, specifically including the effectiveness of the release set forth in
section “b” hereof (and the failure to revoke same within seven (7) days after I
sign and deliver it), the Company will provide me with the following payments
and benefits in satisfaction of the requirements of Section 15(b) of the
Employment Agreement and any other claim I may hold against Charter or its
employees:
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(i)
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The
base salary that would have been paid to me, calculated at the current
annual rate of $515,000 per annum plus target bonus, from the date my
employment is terminated through April 4, 2010 (the “Separation Term”);
provided that the total of all such payments shall not exceed, in the
aggregate, the gross amount of $1,751,000. Subject to the
provisions of Section 15(g) of the Employment Agreement, this amount
(the “Separation Payment”) will be paid over the Separation Term in equal
bi-weekly installments on the Company’s regular pay days for executives,
commencing with the first payday after all conditions in
Section 15(g) of the Employment Agreement are satisfied; provided
that, in order to avoid the tax consequences of Section 409A of the
Internal Revenue Code of 1986 (the “Code”), the first payment shall cover
all payments scheduled to be made to me in the bi-weekly payments that
would have been made to me for the period (the “Initial Payment Period”)
beginning on April 5, 2008 and ending on the six (6) month anniversary of
the date I have a separation from service for purposes of Code
Section 409A, and the first such payment shall be delayed until the
day after the end of the Initial Payment Period; and provided further that
if a Change of Control (as defined within Section 1(f) of the Employment
Agreement) occurs during the twenty-four (24) month Separation Term the
Company shall immediately pay upon any such Change in Control all amounts
remaining
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payable
to me as part of the Separation Payment in the form of a lump sum
payment;
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(ii)
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A
lump sum payment (net after deduction of taxes and other required
withholdings) equal to (a) twenty-four (24) times the monthly cost,
at the time my employment is terminated, for me to receive under COBRA the
paid coverage for health, dental and vision benefits then being provided
for me and my family at the Company’s cost at the time my employment is
terminated and (b) ten (10) days salary in lieu of a full thirty-day
notice of termination per Section 14(b) of the Employment Agreement,
This amount will be paid on the day after the last day of the Initial
Payment Period, and will not take into account future increases in costs
during the applicable time period;
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(iii)
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To
the extent authorized and permitted by the terms of the applicable plan,
any stock options previously awarded to me will continue to vest, any
restricted stock previously awarded to me shall have their restrictions
lapse and any performance shares shall continue to vest, as called for
under such plan for the Separation Term, in accordance with the schedule
attached hereto as Schedule
A. This Separation Term qualifies, in the case of a
payment under Section 15(b) of the Employment Agreement, as the period of
time during which I am receiving severance for purposes of
Section 5.4 of the Charter Communications, Inc 2001 Stock Incentive
Plan, as amended, and any applicable stock option, restricted stock
agreement or performance unit/share agreement signed pursuant to a grant
under such plan (and the payment specified in Section 15(b) of the
Employment Agreement qualifies as “severance” for purposes of
Section 5.4 of the Charter Communications, Inc. 2001 Stock Incentive
Plan). Notwithstanding the foregoing, no stock option shall
remain exercisable beyond the latest date on which the term of the stock
option could be extended without causing the stock option to be treated as
deferred compensation subject to Section 409A of the Internal Revenue
Code; and
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(iv)
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The
full cost of up to twelve (12) months, to the extent necessary, of
executive-level out-placement services that provides, as part of the
outplacement services, the use of an office and secretarial support as
near as reasonably practicable to my
residence.
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These
payments and benefits will be paid and/or provided as and when called for by the
Employment Agreement after all conditions to the effectiveness of this Agreement
and the releases called for by this Agreement have been
satisfied. The right to retain the same shall be subject to
compliance with this Agreement and the terms of the Employment
Agreement. In the event I die before all payments and amounts due to
me hereunder are paid, any remaining payments will be made to my spouse, if she
survives me and, if not, then to my estate.
I
acknowledge I have received my wages per the terms of my Employment Agreement
for all time worked through and ending April 4, 2008, and I will receive a cash
payout of 12.22 hours of
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accrued
and unused vacation calculated as of April 4, 2008 at my rate of base salary in
effect as of April 4, 2008.
Complete
Release: I hereby understand and agree to the termination of
all offices, directorships, manager positions and other similar offices I hold
with Charter or any of its subsidiaries or related or affiliated corporations,
limited liability companies and partnerships and all employment by Charter
effective the close of business on April 4, 2008. In consideration
for the payments I am to receive hereunder, I unconditionally and irrevocably
release, waive and give up any and all known and unknown claims, lawsuits and
causes of action, if any, that I now may have or hold against Charter, its
current and former parents, plans, subsidiaries, and related or affiliated
corporations, ventures, limited liability companies and partnerships, and their
respective current and former employees, directors, fiduciaries, administrators,
insurers, members, managers, partners, and agents and related parties, in any
way arising out of, in connection with or based upon (i) any event or fact
that has occurred prior to the date I sign this Agreement, (ii) my
employment with Charter and/or any of its subsidiaries or affiliates to date and
any event or occurrence occurring during such employment, (iii) the
termination of my employment, (iv) any breach of the Employment Agreement,
(v) any claim to payment under or from Charter’s 2005 Executive Cash Award
Plan or for salary, bonus, stock options or restricted shares other than as
specifically granted pursuant to this Agreement; or (vi) any decision,
promise, agreement, statement, policy, practice, act or conduct prior to this
date of or by any person or entity I am releasing, and from any claims,
lawsuits. I understand that this means that, subject to the limitations
described below, I am releasing Charter and such other persons and entities
from, and may not bring claims against any of them under (a) Title VII of
the Civil Rights Act of 1964 or Sections 1981 and 1983 of the Civil Rights
Act of 1866, which prohibit discrimination based on race, color, national
origin, ancestry, religion, or sex; (b) the Age Discrimination in
Employment Act, which prohibits discrimination based on age; (c) the Equal
Pay Act, which prohibits paying men and women unequal pay for equal work;
(d) the Americans with Disabilities Act and Sections 503 and 504 of
the Rehabilitation Act of 1973, which prohibit discrimination based on
disability; (e) the WARN Act, which requires that advance notice be given
of certain workforce reductions or the Missouri Human Rights Act, chapter 213,
R.S. Mo; (f) the Employee Retirement Income Security Act, which among other
things, protects employee benefits; (g) the Family and Medical Leave Act of
1993, which requires employers to provide leaves of absence under certain
circumstances; (h) the Xxxxxxxx-Xxxxx Act of 2002, which, among other
things, provides Whistleblower protection; (i) any federal or state law,
regulation, decision, or executive order prohibiting discrimination or
retaliation or for breach of contract; (j) any of the laws of the State of
Missouri or any political subdivision of such State; (k) any law
prohibiting retaliation based on exercise of my rights under any law, providing
whistleblowers protection, providing workers’ compensation benefits, protecting
union activity, mandating leaves of absence, prohibiting discrimination based on
veteran status or military service, restricting an employer’s right to terminate
employees or otherwise regulating employment, enforcing express or implied
employment contracts, requiring an employer to deal with employees fairly or in
good faith, providing recourse for alleged wrongful discharge, tort, physical or
personal injury, emotional distress, fraud, negligent or other
misrepresentation, defamation, and similar or related claims, and any other law
relating to salary, commission, compensation, benefits, and other
matters. I specifically represent and agree that I have not been
treated adversely on account of age, gender or other legally protected
classification, nor have I otherwise been treated wrongfully in connection with
my employment with the Company and/or
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any of
its subsidiaries or affiliates and that I have no basis for a claim under the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
or any applicable law prohibiting employment or other discrimination or
retaliation. I acknowledge that the Company relied on the
representations and promises in this Agreement in agreeing to pay me the
benefits described in subsection (a). I understand that I am
releasing claims for events that have occurred prior to my signing this
Agreement that I may not know about. This release does not include claims
arising after the date I sign this Agreement, any claim under a stock option
plan or award agreement, incentive stock plan, or the restricted stock award
agreement based upon my service to and ending the date my employment terminates,
any claim under a group health insurance plan in which I participate for claims
accrued as of the date my employment terminated, a breach of the provisions of
this Agreement (including but not limited to a breach of any obligation to
provide me with the payments and benefits called for by Sections 15 (b) of
the Employment Agreement, as specified in paragraph (a) above) and any
pending claims for workers compensation that have already been filed or for
on-the-job injuries that have already been reported, or any claim for
indemnification by Charter for actions taken by me within the course and scope
of my employment to the degree such actions are subject to indemnification under
Charter’s policies and practices.
Charter
hereby states and acknowledges that, to the best current knowledge of its Chief
Executive Officer, Chief Operating Officer and General Counsel, Charter has no
claim against me for breach of my employment agreement or other claim of
material liability.
(b) Promise Not to File
Claims: I promise never to file, prosecute or pursue any
lawsuit based on a claim purportedly released by this Agreement, or (absent
court order) to assist others in filing or prosecuting similar claims against
Charter. I understand and agree that nothing in this Agreement
precludes me from filing a charge of discrimination under applicable federal or
state law, although I have personally released such claims with regard to
matters and facts occurring prior to this date. I specifically
acknowledge and agree that I am not entitled to severance or any other benefits
under the Charter Communications Special One-Time Severance Plan or other
severance plan or contract, or to any payments following termination of my
employment under or by reason of the Employment Agreement (other than the
payments and benefits called for by Sections 15(b) of the Employment
Agreement, as specified in paragraph (a) above), and that the payments and
benefits described in this Agreement are in lieu of any severance or other
benefits to which I may be entitled under such plan or any other policy,
program, plan or agreement and satisfy and are in lieu of any payments to which
I may be entitled under the Employment Agreement or any other such plan, policy,
program or arrangement, and I specifically waive any rights I may have under
that plan and any such agreement, if any.
(c) Non-admission of
Liability: This Agreement is not an admission of fault,
liability or wrongdoing by me or any released party, and should not be
interpreted or construed as such I understand that all released parties
specifically deny engaging in any liability or wrongdoing.
(d) Non-Disparagement: Neither
Charter nor I will make any statement or announcement concerning my departure
from Charter except as may be reviewed and approved by the other party in
advance provided that
both Charter and I may inform third parties that my employment will terminate or
was terminated (as the case may be) through mutual agreement on April 4,
2008. During the balance of and subsequent to my employment with
Charter and/or any of its
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subsidiaries
or affiliates, I agree not to criticize, denigrate, disparage, or make any
derogatory statements about the Company (including any subsidiaries, or
affiliates), its business plans, policies and practices, or about any of its
officers, employees or former officers or employees, to customers, competitors,
suppliers, employees, former employees, members of the public (including but not
limited to in any internet publication, posting, message board or weblog),
members of the media, or any other person, nor shall I take any action
reasonably expected to harm or in any way adversely affect the reputation and
goodwill of the Company. During the balance of and subsequent to my
employment with Charter and/or any of its subsidiaries or affiliates, Charter
agrees, for itself, its directors and executive employees not to criticize,
denigrate, disparage, or make any derogatory statements about me to customers,
competitors, suppliers, employees, former employees, members of the public
(including but not limited to in any Internet publication, posting, message
board or weblog), members of the media, or any other person, nor shall Charter,
its directors, employees, or agents, take any action reasonably expected to harm
or in any way adversely affect my reputation. Nothing in this
paragraph shall prevent anyone from giving truthful testimony or information to
law enforcement entities, administrative agencies or courts or in any other
legal proceedings as required by law, including, but not limited to, assisting
in an investigation or proceeding brought by any governmental or regulatory body
or official related to alleged violations of any law relating to fraud or any
rule or regulation of the Securities and Exchange Commission.
(e) Future
Cooperation: I agree, at no cost to myself, to make myself
reasonably available by telephone, e-mail or in person to meet and speak with
representatives of Charter regarding events, omissions or other matters
occurring during my employment with Charter of which I have personal knowledge
or involvement that give rise or may give rise to a legal claim against
Charter. I, at no out of pocket cost to myself, also shall reasonably
cooperate with Charter in the defense of such claims, provided that, the
requirement for such cooperation with Charter shall terminate seven years from
the date of the identification of any such claim or claims. To the
fullest extent possible, Charter shall schedule any telephone conferences or
meetings with me for places near my residence and at times outside my normal
work schedule and shall take all other reasonable measures to ensure that my
schedule is disrupted to the least extent possible. To the fullest
extent possible, Charter will seek to avoid having me travel to locations
outside the metropolitan area within which I reside. If the Company requires me
to travel outside the metropolitan area in the United States where I then reside
to provide any testimony or otherwise provide any such assistance, then Charter
will reimburse me for any reasonable, ordinary and necessary travel and lodging
expenses incurred by me to do so, provided I submit 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. I shall respond to requests by
Charter for nominal assistance (such as occasional requests for factual
recollections) at no charge but shall be compensated for my time and assistance
providing more than nominal amounts of historical factual information or
testimony at the rate of $259 per hour; and shall be compensated for any expert
testimony, including preparation time, at the rate of $500 per hour. Nothing in this Agreement
shall be construed or interpreted as requiring me to provide any testimony,
sworn statement or declaration that is not complete and truthful.
(f) Confidential and Proprietary
Information; Covenant Not To Compete: I reaffirm my
obligations under and agree to remain bound by and to comply with the provisions
of
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Sections 17,
18 and 19 of my Employment Agreement with Charter, and agree those provisions
continue to apply to me, notwithstanding the termination of my employment, the
reason for termination of employment, or any act, promise, decision, fact or
conduct occurring prior to this date. The “Restricted Period” for
purposes of Section 19 of my Employment Agreement shall start for all
purposes on April 5, 2008 and shall end for (and solely for) the purposes of
section 19(b) of the Employment Agreement on April 4, 2010. In
addition, I reaffirm my obligations under and agree to remain bound by and to
comply with any other agreement or policy relating to confidential information,
invention, non-solicitation, non competition, or similar matters to which I am
now subject.
(g) Consideration of
Agreement: The Company advised me to take this Agreement home,
read it, and carefully consider all of its terms before signing
it. The Company gave me, and I understand that I have, 21 days in
which to consider this Agreement, sign it and return it to the Company. I waive
any right I might have to additional time within which to consider this
Agreement. I understand that I may discuss this Agreement with an
attorney, at my own expense during this period I understand that I may revoke
this Agreement within 7 days after I sign it by advising the Company orally or
in writing within that seven (7) day time period of my intention to revoke this
Agreement. I have carefully read this Agreement, I fully understand
what it means, and I am entering into it voluntarily. I am receiving valuable
consideration in exchange for my execution of this Agreement that I would not
otherwise be entitled to receive, consisting of the benefits described in
Paragraph (a) of this Agreement. If I revoke my acceptance of
this Agreement within such 7 day time period, or if I fail to accept this
Agreement within the 21 day time period, then Charter shall have no obligations
under this Agreement, including but not limited to any obligation to pay or
provide the payments specified in this Agreement or under the Employment
Agreement
(h) Return of
Property: I will return to the Company on or prior to the
Termination Date all files, memoranda, documents, records, credit cards, keys,
equipment (other than my Blackberry cell phone and laptop computer, although I
understand that I will no longer be provided service for such equipment after my
Termination Date), badges, vehicles, Confidential Information (as defined in the
Employment Agreement) and any other property of the Company then in my
possession or control as directed by the Company provided that I hereby
represent and warrant that I have not, and agree that I will not, make any
copies of company files residing my laptop or other computers accessible to me
and shall return the laptop to the company prior to the Termination Date so that
all company files and information can be removed from its memory prior to the
Termination Date. I also will reveal to the Company at the Company’s
request all access codes to any computer or other program or
equipment
(i) Choice of
Law: This Agreement was drafted in Missouri, and the Company’s
Corporate offices are in Missouri. Therefore, this Agreement is to be governed
by and interpreted according to the internal laws of the State of Missouri
without reference to conflicts of law principles, and this Agreement shall be
deemed to have been accepted and entered into in the State of
Missouri
(j) Amendment,
Miscellaneous: Neither this Agreement nor any of its terms may
be amended, changed, waived or added to except in a writing signed by both
parties. The Company has made no representations or promises to me to sign this
Agreement, other than those in or referred to by
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this
Agreement. If any provision in this Agreement is found to be unenforceable, all
other provisions will remain fully enforceable
Remainder
Of Page Intentionally Left Blank
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This
Agreement was presented to me on March 14, 2008. I have read it and
carefully consider all of its provisions before signing it I have had in excess
of 21 days in which to consider it, sign it and return it to Xxxxx Xxxxxx This
agreement will not become effective until it has been executed by the Company
representative named below
I have
carefully read this Agreement, I fully understand what it means, and I am
entering into it voluntarily.
Presented
By:
Name:
/s/ Xxxxx X.
Xxxxxx
Date
Delivered: March 14, 2008
Employee:
Signature:
/s/ X.X.
Xxxxxx
Date
Signed: 5-2-08
Printed
Name : X. X.
Xxxxxx
Company:
Signature:
/s/ Xxxxx X.
Xxxxxx
Date
Received: 5-8-08
Printed
Name : Xxxxx X.
Xxxxxx
Please
Return to:
Xxxxx X.
Xxxxxx
Senior
Vice President, Human Resources
Charter
Communications
!2405
Xxxxxxxxxxx Xxxxx
Xx.
Xxxxx, XX 00000
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