AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.3
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”),
dated and effective the 1st day of August 2007 (the “Effective
Date”) is made by and between CHARTER COMMUNICATIONS, INC., a Delaware
corporation (the “Company”), and Xxxxxxx X. Xxxxxx, an adult resident of
Missouri (the “Executive”).
RECITALS:
WHEREAS,
the Executive and the Company have previously entered into that certain
Employment Agreement dated February 28, 2006 (the "Old Employment
Agreement") and the parties desire to amend and restate in its entirety the
Old Employment Agreement;
WHEREAS,
it is the desire of the Company to assure itself of the services of Executive
by
engaging Executive as its Executive Vice President and Chief Operating Officer
and the Executive desires to serve the Company on the terms herein
provided;
WHEREAS,
in connection with the entry into the Agreement, the Executive will
be
granted performance units and restricted shares of Company
Stock pursuant to the Company's 2001 Stock Incentive Plan,
as amended as of the date hereof (the “Special
Equity”);
WHEREAS,
Executive’s agreement to the terms and conditions of Sections 17 and 19
are a material and essential condition of Executive’s employment with the
Company hereafter under the terms of this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereto agree as
follows:
1. Certain
Definitions.
(a) “Xxxxx”
shall mean Xxxx X. Xxxxx (and his heirs or beneficiaries under his will(s),
trusts or other instruments of testamentary disposition), and any entity or
group over which Xxxx X. Xxxxx has Control and that constitutes a Person as
defined herein. For the purposes of this definition, “Control”
means the power to direct the management and policies of an entity
or to appoint
or elect a majority of its governing board.
(b) “Annual
Base Salary” shall have the meaning set forth in Section 5.
(c) “Board”
shall mean the Board of Directors of the Company.
(d) “Bonus”
shall have the meaning set forth in Section 6.
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(e) The
Company shall have “Cause” to terminate Executive’s employment hereunder upon
Executive’s:
(i) Executive’s
breach of a material obligation (which, if curable, is not cured within ten
business (10) days after Executive receives written notice of such breach)
or
representation under this Agreement or breach of any fiduciary duty to the
Company which, if curable, is not cured within ten business (10) days after
Executive receives written notice of such breach; or any act of fraud or knowing
material misrepresentation or concealment upon, to or from the Company or the
Board;
(ii) Executive’s
failure to adhere in any material respect to (i) the Company’s 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;
(iii) Executive’s
misappropriation (or attempted misappropriation) of a material amount of the
Company’s funds or property;
(iv) 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 or could reasonably be expected
to
adversely affect the Company or its business reputation; or the institution
of
criminal charges against Executive, which are not dismissed within sixty (60)
days after institution, for fraud, embezzlement, any felony offense involving
dishonesty or constituting a breach of trust or moral turpitude;
(v) Executive’s
admission of liability of, or finding of liability, for a knowing and deliberate
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;
(vi) conduct
by Executive in connection with Executive’s employment that constitutes gross
neglect of any material duty or responsibility, willful
misconduct, or recklessness which, if curable, is not cured within
ten business (10) days after Executive receives written notice of such
breach;
(vii) 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
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Company
premises; “excessive” meaning either repeated
unprofessional use or any single event of consumption giving rise to significant
intoxication or unprofessional behavior;
(viii)
willful
or grossly negligent commission of any other act or failure to act in connection
with the Executive’s duties as an executive of the Company which causes or
reasonably may be expected (as of the time of such occurrence) to cause
substantial economic injury to or substantial injury to the business reputation
of the Company or any subsidiary or affiliate of the Company, including, without
limitation, any material violation of the Foreign Corrupt Practices Act, as
described herein below.
If
Executive
commits or is charged with committing any offense of the character or type
specified in subparagraphs 1(e)(iv), (v) or (viii) above, then the Company
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 compensation paid in cash hereunder from the date of
the
suspension. Notwithstanding anything to the contrary in any stock
option or equity incentive plan or award agreement, all vesting and all lapsing
of restrictions on restricted shares shall be tolled during the period of
suspension and all unvested options and restricted shares for which the
restrictions have not lapsed shall terminate and not be exercisable by or issued
to Executive if during or after such suspension the Executive 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 offense specified in subparagraphs 1(e)(iv), (v) or (viii)
above or any matter that gave rise to the suspension.
(f) For
purposes of this Agreement,
“Change in Control” shall mean the occurrence of any of the following
events:
(i) any
“person” as such term is used in Section 13(d) of the Securities Exchange Act of
1934, or group of persons, excluding Xxxxx and his affiliates, becomes (directly
or indirectly) a “beneficial owner” as such term is used as of the
Effective Date in Rule 13d-3 promulgated under that Act, of a percentage of
the
voting securities of the Company (measured either by number of voting securities
or by voting power) that is larger than the percentage (if any) of the voting
securities of the Company (measured in the same fashion) that Xxxxx and his
affiliates beneficially own (directly or indirectly) at such time;
(ii) if
and when Xxxxx shall no longer have the power to appoint a majority of the
Board, a majority of the Board consists of individuals other than “Incumbent
Directors,” which term means the members of the Board on the Effective Date;
provided that any individual becoming a director subsequent to such date whose
election or nomination for election was supported (other than in connection
with
any actual or threatened proxy contest) by two-thirds of the directors who
then
comprised the Incumbent Directors shall be considered to be an Incumbent
Director; or
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(iii) (x)
the Company combines with another entity and is the surviving entity, or (y)
all
or substantially all of the assets or business of the Company is disposed of
pursuant to a sale, merger, consolidation, liquidation, dissolution or other
transaction or series of transactions (collectively, a “Triggering Event”),
unless Xxxxx and his affiliates own, directly or indirectly, by reason of their
ownership of voting securities of the Company immediately prior to such
Triggering Event, more of the voting securities than any other shareholder
(measured both by number of voting securities and by voting power) of (q) in
the
case of a combination in which the Company is the surviving entity, the
surviving entity, and (r) in any other case, the entity (if any) that
succeeds to all or substantially all of the Company’s business and
assets.
(g) “Code”
shall mean the Internal Revenue Code of 1986, as amended from time to
time.
(h) “Committee”
shall mean either the Compensation and Benefits Committee of the Board, or
a
Subcommittee of such Committee duly appointed by the Board or the
Committee.
(i) “Company”
shall have the meaning set forth in the preamble hereto.
(j) “Company
Stock” shall mean the $.10 par value common stock of the Company.
(k) “Date
of Termination” shall mean (i) if Executive’s employment is terminated by
Executive’s death, the date of Executive’s death and (ii) if Executive’s
employment is terminated pursuant to Section 14(a)(ii) – (vi), the date of
termination of employment, as defined in 409(A) regulations under the
Code.
(l) For
purposes of 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, 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 Company in which Executive participates. The
Disability of Executive will be determined by a medical doctor selected by
written agreement of Company 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 Company 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 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, and to other specialists
designated by such medical doctor, and Executive hereby authorizes the
disclosure and release to Company of such determination and all supporting
medical records. If Executive is not legally
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competent,
Executive’s legal guardian or duly
authorized attorney-in-fact will act in Executive’s stead under this Section for
the purposes of submitting Executive to the examinations, and providing the
authorization of disclosure, required under this Section.
(m) “Executive”
shall have the meaning set forth in the preamble hereto.
(n) “Good
Reason” shall mean any of the events described herein that occur without
Executive's prior written consent: (i) any reduction in Executive’s Annual Base
Salary, Target Bonus Percentage, or title except as permitted hereunder, (ii)
any failure to pay Executive's compensation hereunder when due; (iii) any
material breach by the Company of a term hereof; (iv) relocation
of Executive’s primary workplace to a location that is more
than fifty (50) miles from the office where Executive is then
assigned to work as Executive’s principal office; (v) a transfer or reassignment
to another executive of material responsibilities that have been assigned to
Executive (and were not identified by the Company to be assigned only on an
interim basis at the time of assignment or thereafter) and generally are part
of
the responsibilities and functions assigned to a Chief Operating Officer of
a
public corporation or (vi) any change in reporting structure such that Executive
no longer reports directly to the "Chief Executive Officer (or equivalent
position, if there is no Chief Executive Officer)" (in each case “(i)” through
“(vi)” only if Executive objects in writing within 30 days after being informed
of such events and unless Company retracts and/or rectifies the claimed Good
Reason within 30 days following Company’s receipt of timely written objection
from Executive); (vii) if within six months after a Change in Control, Executive
has not received an offer from the surviving company to continue in his or
her
position immediately prior to such Change in Control under at least the
same terms and conditions (except that the value of equity-based compensation
after such Change in Control need only be commensurate with the value of
equity-based compensation given to executives with equivalent positions in
the
surviving company, if any)as set herein; (viii) the Company's decision not
to
renew this Agreement at the end of its term, (ix) the failure of a successor
to
the business of the Company to assume the Company's obligations under this
Agreement in the event of a Change in Control during its term; or (x) the
expiration of six months after a Change in Control (it being intended hereby
that Executive can resign in his discretion for any reason within 30 days after
six months have expired after a Change in Control and such resignation shall
be
treated as having been for Good Reason hereunder).
(o) “Notice
of Termination” shall have the meaning set forth in Section 14(b).
(p) “Options”
shall have the meaning set forth in Section 7
(q) “Performance
Unit” and “Performance Shares” shall have the meaning set forth in Section 9
hereof.
(r) “Person”
shall have the meaning set forth in Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934.
(s) “Plan”
shall mean the 2001 Stock Incentive Plan as amended by the Company from time
to
time.
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(s) “Restricted
Shares” shall have the meaning set forth in Section 8.
(t) “Term”
shall have the meaning set forth in Section 2.
(u) "Voluntary"
and "Voluntarily" in connection with Executive's termination of employment
shall
mean a termination of employment resulting from the initiative of the Executive,
excluding a termination of employment attributable to Executive's death or
Disability. A resignation by Executive that is in response to a communicated
intent by the Company to discharge Executive other than for Cause is not
considered to be "Voluntary" and shall be considered to be a termination by
the
Company for the purposes of this Agreement.
2. Employment
Term. The
Company hereby employs the Executive, and the Executive hereby accepts his
employment, under the terms and conditions hereof, for the period (the
“Term”) beginning on the Effective Date hereof and terminating upon the
earlier of (i) July 31, 2010 (the “Initial Term”) and (ii) the Date of
Termination as defined in Section 1(k), and, if not terminated earlier, will
be
automatically renewed at the end of its Initial Term and on each anniversary
thereafter for a period of one (1) year unless either party shall give written
notice of cancellation to the other party not later than ninety (90) days prior
to the end of the Initial Term or anniversaries thereof.
3. Position
and Duties. Executive
shall serve as Executive Vice President and Chief Operating Officer reporting
to
the Chief Executive Officer, with such responsibilities, duties and
authority as are customary for such role, including, but not limited to, overall
management responsibility for the operations of the
Company. Executive shall devote all necessary business time and
attention, and employ Executive’s reasonable best efforts, toward the
fulfillment and execution of all assigned duties, and the satisfaction of
defined annual and/or longer-term performance criteria.
4. Place
of Performance. In connection
with Executive’s employment during the Term, Executive's initial primary
workplace shall be the Company’s offices in or near St. Louis, MO. except for
necessary travel on the Company’s business.
5. Annual
Base Salary. During
the Term, Executive shall receive a base salary at a rate not less than
$731,150.00 per annum (the “Annual Base Salary”), less standard
deductions, paid in accordance with the Company’s general payroll practices for
executives, but no less frequently than monthly. The Annual Base
Salary shall compensate Executive for any official position or directorship
of a
subsidiary or affiliate that Executive is asked to hold in the Company or its
subsidiaries or affiliates as a part of Executive’s employment
responsibilities. No less frequently than annually during the Term,
the Committee, on advice of the Company’s Chief Executive Officer, shall review
the rate of Annual Base Salary payable to Executive, and may, in its discretion,
increase the rate of Annual Base Salary payable hereunder; provided,
however, that any increased rate shall thereafter be the rate of “Annual
Base Salary” hereunder.
6. Bonus. Except
as otherwise provided for herein, for each fiscal year or other period
consistent with the Company’s then-applicable normal employment practices during
which Executive is employed hereunder on the last day (the “Bonus Year”),
Executive shall be eligible to
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receive
a bonus in an amount up to 100% of
Executive’s Annual Base Salary (the “Bonus” and bonuses at such
percentage of Annual Base Salary being the “Target Bonus”) pursuant to,
and as set forth in, the terms of the Executive Bonus Plan as such Plan may
be
amended from time to time, plus such other bonus payments, if any, as shall
be
determined by the Committee in its sole discretion, with such Bonus being paid
on or before February 28 of the year next following the Bonus Year, or as soon
as is administratively practicable thereafter (e.g., after the public disclosure
of the Company’s financial results for the prior year on SEC Form 10-K or on
such replacement form as the SEC shall determine, for those years as the
Company’s securities are traded publicly, and the Company’s annual financial
results are reported to the shareholders, for those (if any) years as the
Company’s securities are not traded publicly).
7. Stock
Options. The Company has previously granted to Executive
options to purchase shares of Company Stock as set forth in Exhibit A hereto,
and may, in the Committee’s discretion, grant to Executive additional options to
purchase shares of Company Stock (all of such options, collectively, the
“Options”) pursuant to the terms of the Plan, any successor plan and an
associated Stock Option Agreement.
8. Restricted
Shares. The Company has previously granted to Executive
Restricted Shares of Company Stock as set forth in Exhibit A hereto, and may,
in
the Committee’s discretion, grant to Executive Restricted Shares (collectively,
the “Restricted Shares”), which shall be subject to restrictions on their
sale as set forth in the Plan and an associated Restricted Shares Grant
Letter.
9. Performance
Shares Units. The Company has previously granted to
Executive Performance Share Units of which some have been converted into
Performance Shares (which are not aggregated in the forgoing description of
Restricted Shares) as set forth in Exhibit A hereto, and may, in the Committee’s
discretion, grant to Executive further Performance Share Units (collectively,
the “Performance Units”), which shall be subject to restrictions on their
sale as set forth in the Plan and an associated Performance Unit Grant
Letter.
10. Executive
Cash Bonus Plan. Executive currently is a participant in
the Company’s 2005 Executive Cash Award Plan with a Plan Award (as defined in
such Plan) as set forth in Exhibit B and shall remain a participant in such
Plan
under the terms therefore for the term of this Agreement.
11. Benefits. Executive
shall be entitled to receive such benefits and to participate in such employee
group benefit plans, including life, health and disability insurance policies,
and financial planning services, and other perquisites and plans as are
generally provided by the Company to its senior executives of comparable level
and responsibility in accordance with the plans, practices and programs of
the
Company, as amended from time to time.
12. Expenses. The
Company shall reimburse Executive for all reasonable and necessary expenses
incurred by Executive in connection with the performance of Executive’s duties
as an employee of the Company in accordance with the Company’s generally
applicable policies and procedures. Such reimbursement is subject to
the submission to the Company by Executive of appropriate documentation and/or
vouchers in accordance with the customary
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procedures
of the Company for expense reimbursement, as such procedures may be revised
by
the Company from time to time hereafter.
13. Vacations. Executive
shall be entitled to paid vacation in accordance with the Company’s vacation
policy as in effect from time to time provided that, in no event shall
Executive be entitled to less than three (3) weeks vacation per calendar
year. Executive shall also be entitled to paid holidays and personal
days in accordance with the Company’s practice with respect to same as in effect
from time to time.
14. Termination.
(a) Executive’s
employment hereunder may be terminated by the Company, on the one hand, or
Executive, on the other hand, as applicable, without any breach of this
Agreement, under the following circumstances:
(i) Death. Executive’s
employment hereunder shall automatically terminate upon Executive’s
death.
(ii) Disability. If
Executive has incurred a Disability, the Company may give Executive written
notice of its intention to terminate Executive’s employment. In such
event, Executive’s employment with the Company shall terminate effective on the
14th day after delivery of such notice to Executive, provided that
within the 14 days after such delivery, Executive shall not have returned to
full-time performance of Executive’s duties. Executive may provide
notice to the Company of Executive's resignation on account of a bona fide
Disability at any time.
(iii) Cause. The
Company may terminate Executive’s employment hereunder for Cause effectively
immediately upon delivery of notice to Executive, taking into account any
procedural requirements set forth under Section 1(e) above.
(iv)
Good Reason. Executive may terminate Executive’s employment
herein for Good Reason upon (i) satisfaction of any advance notice and other
procedural requirements set forth under Section 1(n) above for any termination
pursuant to Section 1(n)(i) through (vi) or (ii) at least 30 days’ advance
written notice by the Executive for any termination pursuant to Section
1(n)(vii) through (x).
(v) Without
Cause. The Company may terminate Executive’s employment hereunder
without Cause upon at least 30 days’ advance written notice to the
Executive.
(vi)
Resignation Without Good Reason. Executive may resign
Executive’s employment without Good Reason upon at least fourteen (14) days’
written notice to the Company.
(b) Notice
of Termination. Any termination of Executive’s employment by the
Company or by Executive under this Section 14 (other than pursuant to Sections
14(a)(i)) shall be communicated by a written notice (the “Notice of
Termination”) to the other party hereto, indicating the specific termination
provision in this Agreement relied upon, setting forth in
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reasonable
detail any facts and circumstances claimed
to provide a basis for termination of Executive’s employment under the provision
so indicated, and specifying a Date of Termination which notice shall be
delivered within the applicable time periods set forth in subsections
14(a)(ii)-(vi) above ( the “Notice Period”);
provided that the Company may pay to Executive all Annual
Base Salary, benefits and other rights due to Executive during such Notice
Period instead of employing Executive during such Notice Period.
(c) Resignation
from Representational Capacities. Executive hereby acknowledges
and agrees that upon Executive's termination of employment with the Company
for
whatever reason, [s]he shall be deemed to have, and shall have in fact,
effectively resigned from all executive, director or other positions with the
Company or its affiliates at the time of such termination of employment, and
shall return all property owned by the Company and in Executive’s possession,
including all hardware, files and documents, at that time.
(d) Termination
in Connection with Change in Control. If Executive’s employment
is terminated by the Company without Cause either upon or within thirty days
before or thirteen (13) months after a Change in Control, or prior to a Change
in Control at the request of a prospective purchaser whose proposed purchase
would constitute a Change in Control upon its completion, such termination
shall
be deemed to have occurred immediately before such Change in Control for
purposes of this Agreement and the Plan.
15. Termination
Pay
(a) Effective
upon the termination of Executive’s employment, Company 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 15, except to the extent otherwise provided for in any Company stock
incentive, stock option or cash award plan (including, among others, the Plan),
approved by the Board. For purposes of this Section 15, Executive’s
designated beneficiary will be such individual beneficiary or trust, located
at
such address, as Executive may designate by notice to Company from time to
time
or, if Executive fails to give notice to Company of such a beneficiary,
Executive’s estate. Notwithstanding the preceding sentence, Company
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.
(b) Termination
by Executive for Good Reason or by Company without
Cause. If prior to expiration of the Term, Executive
terminates his or her employment for Good Reason, or if the Company
terminates Executive’s employment other than for Cause or Executive’s death or
Disability, Executive will be entitled to receive, subject to the conditions
of
this Agreement, the following:
(i) (A) all Annual
Base Salary and Bonus duly payable under the applicable plan for performance
periods ending prior to the Date of Termination, but unpaid as of the
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Date
of Termination, plus (B) in consideration for
Executive’s obligations set forth in Section 19 hereof, an amount equal to two
and one half (2.5) times the Executive’s then-current rate of Annual Base Salary
and Target Bonus, which total sum shall be payable following the Date of
Termination in fifty-two (52) equal bi-weekly installments in accordance with
the Company’s normal payroll practices provided that, if a Change in
Control occurs (or is deemed pursuant to Sec. 14(d) hereof to have occurred
after such termination) during such thirty (30) month period (and such Change
in
Control qualifies either as a “change in the ownership or effective control” of
the Company or a “change in the ownership of a substantial portion of the
assets” of the Company as such terms are defined under Section 409A of the
Code), any amounts remaining payable to Executive hereunder shall be paid
in a single lump sum immediately upon such Change in Control.
(ii) if Executive’s
employment is terminated by the Company without Cause either upon or
within thirty days before or thirteen (13) months after a Change in Control,
or
prior to a Change in Control at the request of a prospective purchaser whose
proposed purchase would constitute a Change in Control upon its completion,
the
Company shall treat as earned all unvested Performance Units for which the
performance term has not expired as of such Change in Control at the rate
calculated pursuant to the Plan and the applicable Grant Letter, and shall
immediately convert those Units into Restricted Shares and accelerate as of
the
Date of Termination the removal of restrictions on such shares.
(iii) 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, which amount will be paid within thirty (30) days after the
submission by Executive of properly completed reimbursement requests on the
Company’s standard forms;
(iv) a lump sum payment (net after deduction
of taxes and other required withholdings) equal to thirty (30) times 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 15(b)(i) and will not take into account future increases
in
costs during the applicable time period; and
(v) Stock Options Granted as of
the Effective Date. Notwithstanding anything to the contrary in any
award agreement, all Stock Options granted to Executive as of the Effective
Date
shall vest and become immediately exercisable, as of the termination date,
upon
the occurrence of the conditions set forth in Section 15(b);
(vi) Restricted Shares Granted as
of the Effective Date. Notwithstanding anything to the contrary in
any award agreement, all Restricted Shares granted to Executive as of the
Effective Date shall vest, and all restrictions thereon shall lapse, as of
the
termination date, upon the occurrence of the conditions set forth in Section
15(b);
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(vii) Performance Shares/Units Granted
as of the Effective Date. Notwithstanding anything to the contrary in
any award agreement, the Executive shall be entitled to full vesting and
nonforfeitability, as of the termination date, of any right to receive
Performance Shares in satisfaction of the Performance Units, with the number
(if
any), and the timing of delivery of Shares determined as if the Executive’s
employment with the Company had continued indefinitely, upon occurrence of
the
conditions set forth in Section 15(b);
(viii) “Special” and Future Grants of Equity
Awards. Notwithstanding anything to the contrary in any award
agreement, Executive shall be deemed to be actively employed during the
thirty (30) month period following termination of employment for purposes
of vesting of all “special” and future grants of stock options, performance
units and restricted stock; provided that if a Change in
Control occurs (or is deemed pursuant to Sec. 14(d) hereof to have occurred
after such termination) within such period, all remaining stock options
that would have vested in the thirty (30) month period shall vest, and all
remaining restricted stock and performance units whose restrictions would have
lapsed in the thirty (30) month period shall have their restrictions
lapse immediately upon such Change in Control; provided, however, that with
respect to any equity-based compensation awards subject to Section 409A of
the
Code (as determined by independent tax counsel retained by the Company), vesting
and/or the lapse of restrictions will only be accelerated if such Change in
Control qualifies either as a “change in the ownership or effective control” of
the Company or a “change in the ownership of a substantial portion of the
assets” of the Company as such terms are defined under Section 409A of the Code,
or the first subsequent time at which such distribution may be made in
compliance with Section 409A of the Code; and
(ix) pay the cost of
up to twelve (12) months, as required, of executive-level out-placement
services (which provides as part of the outplacement the use of an office and
secretarial support as near as reasonably practicable to Executive’s
residence).
provided,
however, any of the benefits described in Section 15(b)(i) through (ix)
that are due to be paid or awarded during the first six (6) months after the
Date of Termination shall, to the extent required to avoid the tax consequences
of Section 409A of the Code as determined by independent tax counsel, be
suspended and paid after the six (6) month anniversary of Executive’s Date of
Termination.
(c) The
Executive shall not be required to mitigate the amount of any payments provided
in Section 15, by seeking other employment or otherwise, nor shall the amount
of
any payment provided for in this Section 15 be reduced by any compensation
earned by Executive as a result of employment by another company or business,
or
by profits earned by Employee from any other source at any time before or after
the date of Termination, so long as Executive is not in breach of the
Agreement.
(d) Termination
by Executive without Good Reason or by Company for Cause. If
prior to the expiration of the Term or thereafter, Executive Voluntarily
terminates Executive’s employment prior to expiration of the Term without Good
Reason or if Company terminates this
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Agreement
for Cause, Executive will be entitled to
receive Executive’s then-existing Annual Base 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 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; and Executive shall be entitled to no other
compensation, bonus, payments or benefits except as expressly provided in this
paragraph.
(e) Termination
upon Disability or Death. If Executive’s employment shall
terminate by reason of Executive’s Disability (pursuant to Section 14(a)(ii)) or
death (pursuant to Section 14(a)(i)), the Company shall pay to Executive, in
a
lump sum cash payment as soon as practicable following the Date of Termination,
all unpaid Annual Base Salary and Bonus previously earned for a performance
period ending prior to the Date of Termination, but unpaid as of the Date of
Termination, and the pro rata portion of their Bonus for such
year (when and as paid to other senior executives of the Company) for the
Performance Period in which the termination occurred. In the case of
Disability, if there is a period of time during which Executive is not being
paid Annual Base Salary and not receiving long-term disability insurance
payments, the Company shall make interim payments equal to such unpaid
disability insurance payments to Executive until commencement of disability
insurance payments; provided that, to the extent required to avoid the
tax consequences of Section 409A of the Code, as determined by independent
tax
counsel, 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 that
is
six (6) months after the date Executive’s employment terminates.
(f) Benefits.
Except as otherwise required by law, Executive’s accrual of, and participation
in plans providing for, the Benefits will cease at the effective Date of the
Termination of employment.
(g) Conditions
To Payments. To be eligible to receive (and continue to receive) and retain
the payments and benefits described in Sections 15(b)(i) and 15(e), Executive
must comply with the provisions of Sections 17, 18 and 19. In
addition, to be eligible to receive (and continue to receive) and retain the
payments and benefits described in Sections 15(b) and 15(e) Executive (or
Executive’s executor and personal representatives in case of death) must first
execute and deliver to Company, and comply with, an agreement, in form and
substance reasonably satisfactory to Company, effectively releasing and giving
up all claims Executive may have against Company 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 Company, will be based upon the standard form (if any) then
being
utilized by Company 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 Company, any
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investigation
or administrative proceeding, any
matter relating to a franchise, or any business matter concerning Company or
any
of its transactions or operations. A copy of the standard form
release being used by Company as of the date of this agreement for executive
separations when severance is being paid is attached to this Agreement as
Exhibit C. 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
Company’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 Section
15 will not be made unless and until Executive executes and delivers that
agreement to Company within twenty-one (21) days after delivery of
the document (or such lesser time as Company’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).
(h) Survival. The
expiration or termination of the Term shall not impair the rights or obligations
of any party hereto which shall have accrued hereunder prior to such expiration,
subject to the terms of any agreement containing a general release provided
by
Executive.
16. Excess
Parachute Payment.
(a) Anything in this
Agreement or the Plan to the contrary notwithstanding, to the extent that any
payment, distribution or acceleration of vesting to or for the benefit of
Executive by the Company (within the meaning of Section 280G of the Code and
the
regulations thereunder), whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (the "Total Payments")
is or will be subject to the excise tax imposed under Section 4999 of the Code
(the "Excise Tax"), then the Total Payments shall be reduced (but not below
zero) to the Safe Harbor Amount (as defined below) if and to the extent that
a
reduction in the Total Payments would result in Executive retaining a larger
amount, on an after-tax basis (taking into account federal, state and local
income and employment taxes and the Excise Tax), than if Executive received
the
entire amount of such Total Payments in accordance with their existing terms
(taking into account federal, state, and local income and employment taxes
and
the Excise Tax). For purposes of this Agreement, the term
“Safe Harbor Amount” means the largest portion of the Total Payments that would
result in no portion of the Total Payments being subject to the Excise
Tax. Unless Executive shall have given prior written notice
specifying a different order to the Company to effectuate the foregoing, the
Company shall reduce or eliminate the Total Payments, by first reducing or
eliminating the portion of the Total Payments which are payable in cash and
then
by reducing or eliminating non-cash payments in such order as Executive shall
determine; provided that Executive may not so elect to the extent that, in
the
determination of the Determining Party (as defined herein), such election would
cause Executive to be subject to the Excise Tax. Any notice given by
Executive pursuant to the preceding sentence shall take precedence over the
provisions of any other plan, arrangement or agreement governing Executive's
rights and entitlements to any benefits or compensation.
(b)
The determination of whether the Total Payments shall be reduced as provided
in
Section 16(a) and the amount of such reduction shall be made at the Company's
expense by an
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accounting
firm selected by Company from among the
ten largest accounting firms in the United States or by qualified independent
tax counsel (the “Determining Party”); provided that Executive shall be
given advance notice of the Determining Party selected by the Company, and
shall
have the opportunity to reject to the selection, within two business days
of being notified of the selection, on the basis of that Determining Party’s
having a conflict of interest or other reasonable basis, in which case the
Company shall select an alternative auditing firm among the
ten largest accounting firms in the United States or alternative
independent qualified tax counsel, which shall become the Determining
Party. Such Determining Party shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Company and Executive within ten (10) days of the
termination of Executive’s employment or at such other time mutually agreed by
the Company and Executive. If the Determining Party determines that
no Excise Tax is payable by Executive with respect to the Total Payments, it
shall furnish Executive with an opinion reasonably acceptable to Executive
that
no Excise Tax will be imposed with respect to any such payments and, absent
manifest error, such Determination shall be binding, final and conclusive upon
the Company and Executive. If the Determining Party determines that
an Excise Tax would be payable, the Company shall have the right to accept
the
Determination as to the extent of the reduction, if any, pursuant to Section
16(a), or to have such Determination reviewed by another accounting firm
selected by the Company, at the Company’s expense. If the two
accounting firms do not agree, a third accounting firm shall be jointly chosen
by the Executive Party and the Company, in which case the determination of
such
third accounting firm shall be binding, final and conclusive upon the Company
and Executive.
(c) If,
notwithstanding any reduction described in this Section 16, the IRS determines
that Executive is liable for the Excise Tax as a result of the receipt of any
of
the Total Payments or otherwise, then Executive shall be obligated to pay back
to the Company, within thirty (30) days after a final IRS determination or
in
the event that Executive challenges the final IRS determination, a final
judicial determination, a portion of the Total Payments equal to the “Repayment
Amount.” The Repayment Amount with respect to the payment of benefits
shall be the smallest such amount, if any, as shall be required to be paid
to
the Company so that Executive’s net after-tax proceeds with respect to the Total
Payments (after taking into account the payment of the Excise Tax and all other
applicable taxes imposed on the Payment) shall be maximized. The
Repayment Amount shall be zero if a Repayment Amount of more than zero would
not
result in Executive’s net after-tax proceeds with respect to the Total Payments
being maximized. If the Excise Tax is not eliminated pursuant to this
paragraph, the Executive shall pay the Excise Tax.
(d) Notwithstanding
any other provision of this Section 16, if (i) there is a reduction in the
Total
Payments as described in this Section 16, (ii) the IRS later determines that
Executive is liable for the Excise Tax, the payment of which would result in
the
maximization of Executive’s net after-tax proceeds (calculated as if Executive’s
benefits had not previously been reduced), and (iii) Executive pays the
Excise Tax, then the Company shall pay to Executive those payments or benefits
which were reduced pursuant to this Section 16 as soon as administratively
possible after Executive pays the Excise Tax so that Executive’s net after-tax
proceeds with respect to the Total Payments are maximized.
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17. Competition/Confidentiality.
(a) Acknowledgments
by Executive. Executive acknowledges that (a) during the Term and
as a part of Executive’s employment, Executive has been and 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, Company desires to obtain
exclusive ownership of each invention by Executive while Executive is employed
by the Company, and Company will be at a substantial competitive disadvantage
if
it fails to acquire exclusive ownership of each such invention by Executive;
and
(d) the provisions of this Section 17 are reasonable and necessary to prevent
the improper use or disclosure of Confidential Information and to provide
Company with exclusive ownership of all inventions and works made or created
by
Executive.
(b) Confidential
Information. (i) 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.
(ii) 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 Company:
(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 is used in combination
or
alone;
(E) information
concerning Company 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
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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.
(iii) Executive
shall not make or use any notes or memoranda relating to any Confidential
Information except for uses reasonably expected by Executive to be for the
benefit of the Company, and will, at Company’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.
(iv) 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.
(v) 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 Company) 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 Company 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 Company during the Term, Executive will return to Company
all of the Proprietary Items in Executive’s possession or subject to Executive’s
control, including all equipment (e.g., laptop computers, cell phone,
portable e-mail devices, etc.), documents, files and data, and Executive shall
not retain any copies, abstracts, sketches, or other physical embodiment of
any
such Proprietary Items.
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18. 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, 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 promptly disclosed by Executive to
Company and shall be Company’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 Company 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 Company’s counsel, to
effect and confirm such assignment, transfer and waiver, to direct the issuance
of patents, trademarks, or copyrights to Company with respect to such
Developments as are to be Company’s exclusive property or to vest in Company
title to such Developments; provided, however, that the expense of securing
any
patent, trademark or copyright shall be borne by Company. The parties agree
that
Developments shall constitute Confidential Information.
(b) “Work
Made for Hire.” Any work performed by Executive during
Executive’s employment with Company 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 Company. 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 Company all of Executive’s right, title, and interest
in such work product including, but not limited to, all copyrights and other
proprietary rights.
19. Non-Competition
and Non-Interference.
(a) 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 19 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.
(b) Covenants
of Executive. For purposes of this Section 19, the term
“Restricted Period” shall mean the period commencing as of the
date of this Agreement and terminating on the second anniversary (or, in the
case of Section 19(b)(i), the first anniversary), of the date Executive’s
employment terminated provided that 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
15
hereof. In consideration of the acknowledgments by Executive, and in
consideration of the compensation and benefits to be paid or provided to
Executive by Company, Executive covenants and agrees that during the Restricted
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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:
(i) in
the United States or any other country or territory where the Company then
conducts its business: engage in, operate, finance, control or be employed
by 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 (other than as a member
of a professional consultancy, law firm, accounting firm or similar professional
enterprise that has been retained by the Competitive Business and where
Executive has no direct role in such professional consultancy and maintains
the
confidentiality of all information acquired by Executive during his or her
employment with the Company), 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
(other than as a member of a professional consultancy, law firm, accounting
firm
or similar professional enterprise that has been retained by the Competitive
Business and where Executive has no direct role in such professional consultancy
and maintains the confidentiality of all information acquired by Executive
during his or her employment with the Company). 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
system-based, internet based or wireless system for delivering television,
music
or other entertainment programming (other than as an ancillary service, such
as
cellular telephone providers); provides telephony services using any wired
connection or fixed (as opposed to mobile) wireless application; provides data
or internet access services; 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 19 shall not be construed or applied
(i)
so as to prohibit Executive from owning not more than five percent (5%) 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; or
(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 only, Time Warner, Cablevision, 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 (other than nominal overlaps of service
areas) 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;
(ii) 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
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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 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
(iii) solicit
or recruit for employment, any person or persons who are employed by Company
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.
If
Executive violates any covenant contained in this Section 19, then the term
of
the covenants in this Section shall be extended by the period of time Executive
was in violation of the same.
(c) 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 19 shall extend to any part
of
the United States, and any other country or territory, where the Company
operates or conducts business, or has concrete plans to do so at the time
Executive’s employment terminates. It is agreed that the
Executi
ve’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,
Company shall be entitled to equitable relief by way of injunction or otherwise
in addition to the cessation of payments and benefits hereunder. If
any provision of Sections 17, 18 or 19 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 provision to
such lesser degree, time, scope, extent and/or territory as will grant Company
the maximum restriction on Executive’s activities permitted by applicable law in
such circumstances. Company’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 Company
or
by Company’s failure to exercise any of its rights under any such
agreement.
(d) Notices. In
order to preserve Company’s rights under this Agreement, Company 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 Company shall not be
liable for doing so.
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(e) Injunctive
Relief and Additional Remedy. Executive acknowledges that the
injury that would be suffered by Company as a result of a breach of the
provisions of this Agreement (including any provision of Sections 17, 18 and
19)
would be irreparable and that an award of monetary damages to Company for such
a
breach would be an inadequate remedy. Consequently, Company 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 Company will not be obligated to post
bond
or other security in seeking such relief. Without limiting Company’s
rights under this Section or any other remedies of Company, if Executive
breaches any of the provisions of Sections 17, 18 or 19, Company will have
the
right to cease making any payments otherwise due to Executive under this
Agreement.
(f) Covenants
of Sections 17, 18 and 19 are Essential and Independent
Covenants. The covenants by Executive in Sections 17, 18 and 19
are essential elements of this Agreement, and without Executive’s agreement to
comply with such covenants, Company would not have entered into this Agreement
or employed Executive. Company 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
Company. Executive’s covenants in Sections 17, 18 and 19 are
independent covenants and the existence of any claim by Executive against
Company, under this Agreement or otherwise, will not excuse Executive’s breach
of any covenant in Section 17, 18 or 19. 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 17, 18 and 19. The Company’s right to enforce the
covenants in Sections 17, 18 and 19 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 17, 18 or
19 ,
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 17, 18 and 19 of this
Agreement.
20. Executive’s
Representations And Further
Agreements.
(a) Executive
represents, warrants and covenants to Company that:
(i) 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;
(ii) On
or prior to the date hereof, Executive has furnished to Company 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;
(iii) 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
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Agreement,
or giving the representations and warranties herein, Executive has been given
a
reasonable time to review it and has consulted with counsel of Executive’s
choice; and
(iv) Executive
has not provided, nor been requested by Company to provide, to Company, 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.
(b) During
and subsequent to expiration of the Term, the Executive will cooperate with
Company, 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 Company and its representatives concerning such
matters. 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. 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 Company 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 Company 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 Company’s
standard travel expense reimbursement policies and as otherwise may be required
to satisfy any requirements under applicable tax laws for Company 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.
21. Mutual
Non-Disparagement. Neither
the Company nor Executive shall make any oral or written statement about the
other party which is intended or reasonably likely to disparage the other party,
or otherwise degrade the other party’s reputation in the business or legal
community or in the telecommunications industry.
22. Foreign
Corrupt Practices Act. Executive
agrees to comply in all material respects with the applicable provisions of
the
U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), as amended, which
provides generally that: under no circumstances will foreign officials,
representatives, political parties or holders of public offices be offered,
promised or paid any money, remuneration, things of value, or provided any
other
benefit, direct or indirect, in connection with obtaining or maintaining
contracts or orders hereunder. When any representative, employee,
agent, or other individual or organization associated with Executive is required
to perform any obligation related to or in connection with this Agreement,
the
substance of this
Charter
–Approved Prototype August 1,
2007
21
section
shall be imposed upon such person and included in any agreement between
Executive and any such person. Failure by Executive to comply with
the provisions of the FCPA shall constitute a material breach of this Agreement
and shall entitle the Company to terminate Executive’s employment for
Cause.
23. Purchases
and Sales of the Company’s
Securities. Executive
has read and agrees to comply in all respects with the Company’s Policy
Regarding the Purchase and Sale of the Company’s Securities by Employees, as
such Policy may be amended from time to time. Specifically, and
without limitation, Executive agrees that Executive shall not purchase or sell
stock in the Company at any time (a) that Executive possesses material
non-public information about the Company or any of its businesses; and (b)
during any “Trading Blackout Period” as may be determined by the Company as set
forth in the Policy from time to time.
24. Indemnification. (a) If
Executive is made a party or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter, a "proceeding"), by reason of
the
fact that he or she is or was a director or an officer of the Corporation or
is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan (hereinafter, a "Covered Person"), whether the basis of such proceeding
is
alleged action in an official capacity as a director, officer, employee or
agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists
or
may hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such Covered Person
in
connection therewith; provided, however, that, except as provided in
Section 24(c) hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such Covered Person in
connection with a proceeding (or part thereof) initiated by such Covered Person
only if such proceeding (or part thereof) was authorized by the
Board.
(b) The
Corporation shall pay
the expenses (including attorneys' fees) incurred by Executive in defending
any
such proceeding in advance of its final disposition (hereinafter, an
"advancement of expenses"), provided, however, that, if the Delaware
General Corporation Law so requires, an advancement of expenses incurred by
Executive in his or her capacity as such shall be made only upon delivery to
the
Corporation of an undertaking (hereinafter, an "Undertaking"), by or on behalf
of such Executive, to repay all amounts so advanced if it shall ultimately
be
determined by final judicial decision from which there is no further right
to
appeal (hereinafter, a "Final Adjudication") that Executive was not entitled
to
be indemnified for such expenses under this Section 24 or
otherwise. The rights to indemnification and to the advancement of
expenses conferred in Subsections 24(a) and (b) hereof shall be contract
rights and such rights shall continue even after Executive ceases to be employed
by the Company and shall inure to the benefit of Executive’s heirs, executors
and administrators.
Charter
–Approved Prototype August 1,
2007
22
(c) If a claim under Section 24(a)
or (b) hereof is not paid in full by the Company within sixty (60) days
after a written claim therefore has been received by the Company, except in
the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, Executive may at any time thereafter
bring suit against the Company to recover the unpaid amount of the
claim. If Executive is successful in whole or in part in any such
suit, or in a suit brought by the Company to recover an advancement of expenses
pursuant to the terms of an Undertaking, Executive shall be entitled to be
paid
also the expense of prosecuting or defending such suit. In
(i) any suit brought by Executive to enforce a right to indemnification
hereunder (but not in a suit brought by Executive to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit
brought by the Company to recover an advancement of expenses pursuant to the
terms of an Undertaking, the Company shall be entitled to recover such expenses
upon a final adjudication that, Executive has not met the applicable standard
for indemnification set forth in the Delaware General Corporation
Law. To the fullest extent permitted by law, neither the failure of
the Company (including its disinterested directors, committee thereof,
independent legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of Executive is
proper in the circumstances because the Executive has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor
an
actual determination by the Company (including its disinterested directors,
committee thereof, independent legal counsel or its stockholders) that Executive
has not met such applicable standard of conduct, shall create a presumption
that
Executive has not met the applicable standard of conduct or, in the case of
such
a suit brought by Executive, be a defense to such suit. In any suit
brought by Executive to enforce a right to indemnification or to an advancement
of expenses hereunder, or brought by the Company to recover an advancement
of
expenses pursuant to the terms of an undertaking, the burden of proving that
Executive is not entitled to be indemnified, or to such advancement of expenses,
under this Section 24 or otherwise shall, to the extent permitted by law, be
on
the Company.
(d) The
rights to
indemnification and to the advancement of expenses conferred in this Section
24
shall not be exclusive of any other right of indemnification which Executive
or
any other person may have or hereafter acquire by any statute, the Corporation's
Certificate of Incorporation or Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) The Company may maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent
of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Company would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
25. Withholding.
Anything to the contrary notwithstanding, all payments required to be made
by
Company hereunder to Executive or his estate or beneficiary shall be
subject to the withholding of such amounts, if any, relating to tax and other
payroll deductions as the Company may reasonably determine it should withhold
pursuant to applicable law or regulation.
Charter
–Approved Prototype August 1,
2007
23
26. Notices. Any
written notice required by this Agreement will be deemed provided and delivered
to the intended recipient when (a) delivered in person by hand; or (b) three
days after being sent via U.S. certified mail, return receipt requested; or
(c)
the day after being sent via by overnight courier, in each case when such notice
is properly addressed to the following address and with all postage and similar
fees having been paid in advance:
|
|
If
to the Company:
|
Charter
Communications, Inc.
|
|
|
Attn.:
Human Resources
|
|
|
00000
Xxxxxxxxxxx Xxxxx
|
| Xx. Xxxxx, XX 00000 |
|
|
If
to Executive:
|
00000
Xxxxxxxxxxx Xxxxx
|
|
|
Xx.
Xxxxx, XX 00000
|
Either
party may change the address to which notices, requests, demands and other
communications to such party shall be delivered personally or mailed by giving
written notice to the other party in the manner described above.
27. Binding
Effect. This
Agreement shall be for the benefit of and binding upon the parties hereto and
their respective heirs, personal representatives, legal representatives,
successors and, where applicable, assigns.
28. Entire
Agreement.
As of the Effective Date, the Employee and the Company hereby irrevocably
agree that the Old Employment Agreement is hereby terminated in its entirety,
and neither party thereto shall have any rights or obligations under the Old
Employment Agreement, including but not limited to, in the case of the Employee,
any right to any severance payment or benefit. This Agreement
constitutes the entire agreement between the listed parties with respect to
the
subject matter described in this Agreement and supersedes all prior agreements,
understandings and arrangements, both oral and written, between the parties
with
respect to such subject matter, except to the extent said agreements,
understandings and arrangements are referenced or referred to in this
Agreement. This Agreement may not be modified, amended, altered or
rescinded in any manner, except by written instrument signed by both of the
parties hereto; provided, however, that the waiver by either party of a breach
or compliance with any provision of this Agreement shall not operate nor be
construed as a waiver of any subsequent breach or compliance. Except to the
extent the terms hereof are explicitly and directly inconsistent with the
terms of the Plan, nothing herein shall be deemed to override or replace the
terms of the Plan, including but not limited to sections 6.4, 9.4 and 10.4
thereof.
29. Severability. In
case any one or more of the provisions of this Agreement shall be held by any
court of competent jurisdiction or any arbitrator selected in accordance with
the terms hereof to be illegal, invalid or unenforceable in any respect, such
provision shall have no force and effect, but such holding shall not affect
the
legality, validity or enforceability of any other provision of this Agreement
provided that the provisions held illegal, invalid or unenforceable does not
reflect or manifest a fundamental benefit bargained for by a party
hereto.
Charter
–Approved Prototype August 1,
2007
24
30. Assignment. Subject
to the Executive’s right to terminate in the event of a Change in Control
hereunder, this Agreement can be assigned by the Company only to a company
that
controls, is controlled by, or is under common control with the Company and
which assumes all of the Company’s obligations hereunder. 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 entered into by Executive and/or
Executive’s immediate family members (meaning, Executive’s spouse and lineal
descendants). This agreement shall be binding in all respects on
permissible assignees.
31. Notification. In
order to preserve the Company’s rights under this Agreement, the Company is
authorized to advise any third party with whom Executive may become employed
or
enter into any business or contractual relationship with, or whom Executive
may
contact for any such purpose, of the existence of this Agreement and its terms,
and the Company shall not be liable for doing so.
32. Choice
of Law/Jurisdiction This Agreement is deemed to be accepted and
entered into in St. Louis County, Missouri. Executive and the Company intend
and
hereby acknowledge that jurisdiction over disputes with regard to this
Agreement, and over all aspects of the relationship between the parties hereto,
shall be governed by the laws of the State of Missouri without giving effect
to
its rules governing conflicts of laws. Executive agrees that in any
suit to enforce this Agreement, or as to any dispute that arises between the
Company and the Executive regarding or relating to this Agreement and/or any
aspect of Executive’s employment relationship with Company, venue and
jurisdiction are proper in the County of St. Louis, and (if federal jurisdiction
exists) the United States District Court for the Eastern Division of Missouri
in
St. Louis, and Executive waives all objections to jurisdiction and venue in
any
such forum and any defense that such forum is not the most convenient
forum.
33. Section
Headings. The
section headings contained in this Agreement are for reference purposes only
and
shall not affect in any manner the meaning or interpretation of this
Agreement.
34. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which taken together shall constitute one and
the
same instrument.
[remainder
of page intentionally left blank]
Charter
–Approved Prototype August 1,
2007
25
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
Charter
Communications, Inc.
By: /s/
Xxxx Xxxx
Name:
Xxxx Xxxx
Title:
President and Chief Executive Officer
EXECUTIVE
/s/
Xxxxxxx Xxxxxx
Name: Xxxxxxx
X. Xxxxxx
Address: _________________________
Charter
–Approved Prototype August 1,
2007
26
Charter
Communications
Grant
Summary Report
Exhibit
A
Activity
as of 6/25/2007
|
Grant
Date
|
Grant
Type
|
Xxxxx
Xxxxx
|
Granted
|
Exercised
|
Canceled
|
Subject
to Repurchase
|
Outstanding
|
Vested
|
Outstanding
Exercisable
|
|
2001
Non-Qualified Stock Option
|
|||||||||
|
Xxxxxxx
X. Xxxxxx
|
|||||||||
|
7/23/2003
|
Non-Qualified
|
$5.06
|
100,000
|
0
|
0
|
0
|
100,000
|
75,000
|
75,000
|
|
1/27/2004
|
Non-Qualified
|
$5.17
|
77,500
|
0
|
0
|
0
|
77,500
|
58,125
|
58,125
|
|
1/27/2004
|
Restricted
|
$0.00
|
37,500
|
0
|
37,500
|
0
|
0
|
37,500
|
0
|
|
4/27/2004
|
Restricted
|
$0.00
|
10,000
|
0
|
10,000
|
0
|
0
|
10,000
|
0
|
|
4/27/2004
|
Non-Qualified
|
$4.555
|
12,500
|
0
|
0
|
0
|
12,500
|
9,375
|
9,375
|
|
10/26/2004
|
Non-Qualified
|
$2.865
|
82,000
|
0
|
0
|
0
|
82,000
|
41,000
|
41,000
|
|
10/26/2004
|
Restricted
|
$0.00
|
40,500
|
0
|
40,500
|
0
|
0
|
0
|
0
|
|
4/26/2005
|
Non-Qualified
|
$1,295
|
216,000
|
54,000
|
0
|
0
|
162,000
|
108,000
|
54,000
|
|
4/26/2005
|
Restricted
|
$0.00
|
129,600
|
0
|
17,820
|
0
|
111,780
|
0
|
0
|
|
4/26/2005
|
Restricted
|
$0.00
|
75,000
|
50,000
|
0
|
0
|
25,000
|
50,000
|
0
|
|
2/28/2006
|
Non-Qualified
|
$1.195
|
432,000
|
108,000
|
0
|
0
|
324,000
|
108,000
|
0
|
|
2/28/2006
|
Restricted
|
$0.00
|
150,000
|
50,000
|
0
|
0
|
100,000
|
50,000
|
0
|
|
2/28/2006
|
Restricted
|
$0.00
|
259,200
|
0
|
0
|
0
|
259,200
|
0
|
0
|
|
2/28/2006
|
Restricted
|
$0.00
|
155,520
|
0
|
0
|
0
|
155,520
|
0
|
0
|
|
3/9/2007
|
Restricted
|
$0.00
|
300,000
|
0
|
0
|
0
|
300,000
|
0
|
0
|
|
3/9/2007
|
Non-Qualified
|
$2.835
|
864,000
|
0
|
0
|
0
|
864,000
|
0
|
0
|
|
3/9/2007
|
Restricted
|
$0.00
|
518,400
|
0
|
0
|
0
|
518,400
|
0
|
0
|
|
Optionee
Total
|
3,459,720
|
262,000
|
105,820
|
0
|
3,091,900
|
547,000
|
237,500
|
||
|
Plan
Total
|
3,459,720
|
262,000
|
105,820
|
0
|
3,091,900
|
547,000
|
237,500
|
||
Charter
–Approved Prototype August 1,
2007
27
Exhibit
B
Executive
Cash Award Plan
Charter
–Approved Prototype August 1,
2007
28
