SEPARATION AGREEMENT AND RELEASE FOR SUE HAMILTON
Exhibit
99.1
SEPARATION
AGREEMENT AND RELEASE
FOR
XXX XXXXXXXX
This
Separation Agreement and Release (this “Agreement”) is entered into between
Charter Communications, Inc. (the “Company” or “Charter”) and me, Xxx Xxxxxxxx,
as a condition to my receiving payments pursuant to my Employment Agreement
with
Charter dated as of October 31, 2005 (the “Employment Agreement”) in connection
with the termination of my employment with Charter as of March 31, 2007 (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 until the Termination Date; I shall
receive salary at my current annual rate of $385,000 in biweekly 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 5.6 of the Employment
Agreement are satisfied); I shall continue to receive all benefits I was
receiving as of December 31, 2006, 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 until
the
Termination Date; provided
that I
will
cease to incur deductions or make contributions to the Charter PAC as of
December 31, 2006; and further provided that I shall only be required to provide
services to Charter as provided in section “f” hereof; and finally provided that
I may seek and/or accept other employment during such period. 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 5.5.1 of the Employment Agreement and any other
claim I may hold against Charter or its employees:
(i) The
base
salary that would have been paid to me, calculated at the current annual rate
of
$385,000.00 per annum, from the date my employment is terminated through March
31, 2008 (the “Separation Term”); provided
that the
total
of all such payments shall not exceed, in the aggregate, the gross amount of
$385,000.00. Subject to the provisions of Section 5.6 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 5.6 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
1, 2007 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;
(ii) The
amount of any and all incentive and/or performance bonus compensation for 2006,
without proration, and a pro
rata
amount
of incentive and/or performance bonus compensations for 2007, if and to the
extent such bonuses are otherwise payable under the terms of the applicable
bonus plan as determined by the Board, based upon results for the entire years
of 2006 and 2007, as applicable. These amounts will be payable as and when
bonus
compensation under such plan for the year in question is paid to other
participants generally but not later than March 15, 2007 for the 2006 bonus
or
March 15, 2008 for the 2007 bonus, and will not be subject to any deduction
or
adjustment that is not similar and proportionate to those made to bonuses paid
to other senior executives. The Board shall determine the amount of any such
bonus and/or the extent to which any such bonus has been earned under the plan,
in its sole discretion, considering results for the entire year and not just
the
period of my employment;
(iii) A
lump
sum payment (net after deduction of taxes and other required withholdings)
equal
to twelve (12) 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. 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;
(iv) To
the
extent authorized and permitted by the terms of the applicable plan, any stock
options previously awarded to me will continue to vest, and any restricted
stock
previously awarded to me shall have their restrictions lapse, both 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 5.5.1 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 or restricted
stock agreement signed pursuant to a grant under such plan (and the payment
specified in Section 5.5.1 (a) 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
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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.
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 he 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 December 31, 2006, and I will received
with my first severance payment cash payout of 144 hours of accrued and unused
vacation calculated as of March 31, 2007 at my rate of base salary in effect
as
of December 31, 2006. I acknowledge receiving payment of the amounts specified
in this paragraph by my signature on this Agreement.
(b) 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 effective the close of business December 31, 2006 and all
employment by Charter effective the close of business on March 31, 2007. 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,
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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 Colorado or any political subdivision of any such State; (k) the
Colorado Anti-Discrimination Act of 1957; (l) Colorado Wage Equality Regardless
of Sex Act; (m) Colorado Labor Peace Act; or (n) 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 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 5.5.1 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-
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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.
(c) 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 5.5.1 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.
(d) 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.
(e) 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 March 31, 2007.
During the balance of and subsequent to my employment with Charter and/or any
of
its subsidiaries or affiliates: (1) I agree to conduct myself in a professional
and positive manner in all of my dealings, communications and contacts
concerning Charter, my employment, or my separation from employment, (2) I
agree
not to criticize, denigrate, disparage, or make any derogatory statements about
the Company, and (3) I agree not to make any derogatory or critical statements
about the Company (including any subsidiaries, or affiliates), its business
plans, policies and
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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
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.
(f) Future
Cooperation:
During
and subsequent to my employment with Charter, I agree to cooperate with the
Company, and to furnish any and all complete and truthful information, testimony
or affidavits in connection with any matter that arose during my 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 I may have
any
knowledge or involvement; and to consult with and provide information to Charter
and its representative concerning such matters. Prior to the Termination Date,
I
shall provide all assistance reasonably requested by Charter at no charge other
than my salary and benefits set forth herein. After the Termination Date, 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 $400 per hour; and shall be compensated
for any expert testimony, including preparation time, at the rate of $600 per
hour. 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 my schedule, including relative to any other employment in which
I may then be engaged. 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. 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
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policies
and as otherwise may be required to satisfy any requirements under applicable
tax laws for Charter to deduct those expenses.
(g) 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 Sections 6, 7 and 8.2 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 7 of my Employment Agreement shall
start for all purposes on March 31, 2007 and shall end for (and solely for)
the
purposes of section 7.2(a) of the Employment Agreement on December 31, 2007.
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.
(h) 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.
(i) 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 not 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
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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.
(j) 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.
(k) 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 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 December 19, 2006. 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:
Date
Delivered: December
19, 2006
Employee:
Signature:
/s/
Xxx
A R Xxxxxxxx
Date
Signed: March
8, 2007
Printed
Name: Xxx
Xxx X Xxxxxxxx
Company:
Signature: /s/
Xxxxx X. Xxxxxx
Date
Received: March
14, 2007
Printed
Name : Xxxxx
X. Xxxxxx
Please
Return To:
Xxxxx
X.
Xxxxxx
Senior
Vice President, Human Resources
Charter
Communications
00000
Xxxxxxxxxxx Xxxxx
Xx.
Xxxxx, XX 00000
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Schedule
A
Stock
Options and Restricted Shares
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