RESTRICTED SHARES AGREEMENT
Exhibit 10.23
[Full Name of Employee]
[Date]
Dear [First Name]:
Pursuant to the 2011 Employee Stock Plan (the “Plan”) of AMC Networks Inc. (the
“Company”), you will receive _______ restricted shares (“Restricted Shares”) of AMC
Networks Inc. Class A Common Stock, par value $.01 per share (“Common Shares”) effective as
of [_____, 2011] in replacement of the restricted shares of Cablevision Systems Corporation Class A
Common Stock, par value $.01 per share, granted to you by the Compensation Committee of the Board
of Directors of Cablevision Systems Corporation effective as of March 8, 2011 (the “Grant Date”),
which restricted share grant (the “Cablevision Grant”) has been canceled in all respects on ______,
2011.
Capitalized terms used but not defined in this agreement (this “Agreement”) have the meanings
given to them in the Plan. The Restricted Shares are subject to the terms and conditions set forth
below:
1. Vesting. Subject to Sections 2 and 3, none of your Restricted Shares will vest and you will
forfeit all of them if you do not remain continuously employed with the Company or one of its
Affiliates from the Grant Date through the third anniversary of the Grant Date.
2. Accelerated Vesting in the Event of Death. If your employment is terminated as a result of your
death, all of the Restricted Shares will vest as of the termination date.
3. Change of Control/Going Private Transaction. As set forth in Annex 1 attached hereto,
your entitlement to Restricted Shares may be affected in the event of a Change of Control of the
Company or a going private transaction (each as defined in Annex 1 attached hereto).
4. Transfer Restrictions. You may not transfer, assign, pledge or otherwise encumber the
Restricted Shares, other than to the extent provided in the Plan.
5. Right to Vote and Receive Dividends. You have full voting rights with respect to the Restricted
Shares. Unless the Compensation Committee of the Board of Directors of the Company (the
“Committee”) determines otherwise, all ordinary (as determined by the Committee in its sole
discretion) cash dividends and distributions paid on your Restricted Shares will be retained by the
Company for your account until your Restricted Shares vest and such dividends and distributions
will be paid to you (without interest) when your Restricted Shares vest. Such dividends, to the
extent retained, shall revert back to the Company if for any reason the Restricted Share upon which
such dividends were paid reverts back to the Company.
6. Section 83(b) Election. Because you did not make an election pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended (the “Code”) in connection with the
Cablevision Grant, you will not be able to make an election pursuant to Section 83(b) of the Code
in connection with the grant of Restricted Shares under this Agreement.
7. Tax Representations and Tax Withholding. You hereby acknowledge that you have reviewed with
your own tax advisors the federal, state and local tax consequences of receiving the Restricted
Shares. You hereby represent to the Company that you are relying solely on such advisors and not
on any statements or representations of the Company, its Affiliates or any of their respective
agents.
If, in connection with the Restricted Shares, the Company is required to withhold any amounts
by reason of any federal, state or local tax, such withholding shall be effected in accordance with
Section 16 of the Plan.
8. Section 409A. It is the Company’s intent that payments under this Agreement are exempt from
Section 409A of the Code (“Section 409A”), and that the Agreement be administered accordingly.
Notwithstanding anything to the contrary contained in this Agreement, if and to the extent that any
payment or benefit under this Agreement is determined by the Company to constitute “non-qualified
deferred compensation” subject to Section 409A and is payable to you by reason of termination of
your employment, then (a) such payment or benefit shall be made or provided to you only upon a
“separation from service” as defined for purposes of Section 409A under applicable regulations and
(b) if you are a “specified employee” (within the meaning of Section 409A and as determined by the
Company), such payment or benefit shall not be made or provided before the date that is six months
after the date of your separation from service (or your earlier death).
9. Delivery. Unless otherwise determined by the Committee, delivery of the Restricted Shares will
be by book-entry credit to an account in your name that the Company has established at a custody
agent (the “custodian”). The Company’s transfer agent, Xxxxx Fargo Bank, N.A., shall act
as the custodian of the Restricted Shares; however, the Company may in its sole discretion
appoint another custodian to replace Xxxxx Fargo Bank, N.A. On the date your Restricted Shares
vest, if you have complied with your obligations under this Agreement and provided that
your tax obligations with respect to the vested Restricted Shares are appropriately satisfied, we
will instruct the custodian to electronically transfer your Common Shares to a brokerage or other
account on your behalf (or make such other arrangements for the delivery of the Common Shares to
you as we reasonably determine).
10. Right of Offset. You hereby agree that the Company shall have the right to offset against its
obligation to deliver shares of Class A Common Stock, cash or other property under this Agreement
to the extent that it does not constitute “non-qualified deferred compensation” pursuant to Section
409A, any outstanding amounts of whatever nature that you then owe to the Company or any of its
Affiliates.
11. The Committee. For purposes of this Agreement, the term “Committee” means the Compensation
Committee of the Board of Directors of the Company or any replacement committee established under,
and as more fully defined in, the Plan.
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12. Committee Discretion. The Committee has full discretion with respect to any actions to be
taken or determinations to be made in connection with this Agreement, and its determinations shall
be final, binding and conclusive.
13. Amendment. The Committee reserves the right at any time to amend the terms and conditions set
forth in this Agreement, except that the Committee shall not make any amendment or revision in a
manner unfavorable to you (other than if immaterial), without your consent. No consent shall be
required for amendments made pursuant to Section 12 of the Plan, except that, for purposes of
Section 19 of the Plan, Section 3 and Annex 1 of this Agreement are deemed to be “terms of an Award
Agreement expressly refer[ring] to an Adjustment Event.” Any amendment of this Agreement shall be
in writing and signed by an authorized member of the Committee or a person or persons designated by
the Committee.
14. Restricted Shares Subject to the Plan. The Restricted Shares covered by this Agreement are
subject to the Plan.
15. Entire Agreement. Except for any employment agreement between you and the Company or any of
its Affiliates in effect as of the date of the grant hereof (as such employment agreement may be
modified, renewed or replaced), this Agreement and the Plan constitute the entire understanding and
agreement of you and the Company with respect to the Restricted Shares covered hereby and supersede
all prior understandings and agreements. In the event of a conflict among the documents with
respect to the terms and conditions of the Restricted Shares covered hereby, the documents will be
accorded the following order of authority: the terms and conditions of the Plan will have highest
authority followed by the terms and conditions of your employment agreement, if any, followed by
the terms and conditions of this Agreement.
16. Successors and Assigns. The terms and conditions of this Agreement shall be binding upon, and
shall inure to the benefit of, the Company and its successors and assigns.
17. Governing Law. This Agreement shall be deemed to be made under, and in all respects be
interpreted, construed and governed by and in accordance with, the laws of the State of New York.
18. Jurisdiction and Venue. You irrevocably submit to the jurisdiction of the courts of the State
of New York and the Federal courts of the United States located in the Southern District and
Eastern District of the State of New York in respect of the interpretation and enforcement of the
provisions of this Agreement, and hereby waive, and agree not to assert, as a defense that you are
not subject thereto or that the venue thereof may not be appropriate. You agree that the mailing
of process or other papers in connection with any action or proceeding in any manner permitted by
law shall be valid and sufficient service.
19. Securities Law Acknowledgments. You hereby acknowledge and confirm to the Company that (i) you
are aware that the Common Shares are publicly-traded securities and (ii) Common Shares may not be
sold or otherwise transferred unless such sale or transfer is registered under the Securities Act
of 1933, as amended, and the securities laws of any applicable state or other jurisdiction, or is
exempt from such registration.
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20. Waiver. No waiver by the Company at any time of any breach by you of, or compliance with, any
term or condition of this Agreement or the Plan to be performed by you shall be deemed a waiver of
the same, any similar or any dissimilar term or condition at the same or at any prior or subsequent
time.
21. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any term or condition hereof shall not affect the validity or enforceability of
the other terms and conditions set forth herein.
22. Exclusion from Compensation Calculation. By acceptance of this Agreement, you shall be
considered in agreement that the Restricted Shares covered hereby shall be considered special
incentive compensation and will be exempt from inclusion as “wages” or “salary” in pension,
retirement, life insurance and other employee benefits arrangements of the Company and its
Affiliates, except as determined otherwise by the Company. In addition, each of your beneficiaries
shall be deemed to be in agreement that all such shares be exempt from inclusion in “wages” or
“salary” for purposes of calculating benefits of any life insurance coverage sponsored by the
Company or any of its Affiliates.
23. No Right to Continued Employment. Nothing contained in this Agreement or the Plan shall be
construed to confer on you any right to continue in the employ of the Company or any Affiliate, or
derogate from the right of the Company or any Affiliate, as applicable, to retire, request the
resignation of, or discharge you, at any time, with or without cause.
24. Affiliates of the Company. Notwithstanding Section 2(a) of the Plan, for purposes of Sections
1, 4, 10 and 15 and Annex 1 of this Agreement, “Affiliate” of the Company shall mean the direct and
indirect subsidiaries of the Company.
25. Headings. The headings in this Agreement are for purposes of convenience only and are not
intended to define or limit the construction of the terms and conditions of this Agreement.
26. Effective Date. Upon execution by you, this Agreement shall be effective from and as of the
Grant Date.
27. Signatures. Execution of this Agreement by the Company may be in the form of an electronic or
similar signature, and such signature shall be treated as an original signature for all purposes.
| AMC NETWORKS INC. |
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| By: | Xxxxxx Xxxxx | |||
| President and CEO | ||||
| By: | ||||
By your electronic signature, you (i) acknowledge that a complete copy of the Plan and the
final execution version of this Agreement have been made available to you and (ii) agree to all of
the terms and conditions set forth in the Plan and this Agreement.
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In the event of a “Change of Control” of the Company or a “going private transaction,” as defined
below, your entitlement to Restricted Shares shall be as follows:
1. If the Company or the “surviving entity,” as defined below, has shares of common stock (or
partnership units) traded on a national stock exchange or on the over-the-counter market as
reported on NASDAQ, the Committee shall, no later than the effective date of the transaction which
results in a Change of Control or going private transaction either (A) convert your unvested
Restricted Shares into an amount of cash equal to (i) the number of your unvested Restricted Shares
multiplied by (ii) the “offer price per share,” the “acquisition price per share” or the “merger
price per share,” each as defined below, whichever of such amounts is applicable or (B) arrange to
have the surviving entity grant to you an award of shares of common stock (or partnership units) of
the surviving entity on the same terms and with a value equivalent to your unvested Restricted
Shares which will, in the good faith determination of the Committee, provide you with an equivalent
profit potential.
2. If the Company or the surviving entity does not have shares of common stock (or partnership
units) traded on a national stock exchange or on the over-the-counter market as reported on NASDAQ,
the Committee shall convert your unvested Restricted Shares into an amount of cash equal to the
amount calculated as per Paragraph 1(A) above.
3. The cash award provided in Paragraph 1 or 2 shall become payable to you at the earlier of (a)
the date on which your Restricted Shares are scheduled to vest (provided that you remain
continuously employed with the Company or one of its Affiliates through such date), or (b) the date
on which your employment with the Company or the surviving entity is terminated (i) by the Company
or the surviving entity other than for Cause, if such termination occurs within three (3) years of
the Change of Control or going private transaction, (ii) by you for “good reason,” as defined
below, if such termination occurs within three (3) years of the Change of Control or going private
transaction or (iii) by you for any reason at least six (6) months, but not more than nine (9)
months after the effective date of the Change of Control or going private transaction; provided
that clause (iii) herein shall not apply in the event that your rights in the Restricted Shares are
converted into a right to receive an amount of cash in accordance with paragraph (A) of Section 1.
The amount payable in cash shall be payable together with interest from the effective date of the
Change of Control or going private transaction until the date of payment at (a) the weighted
average cost of capital of the Company immediately prior to the effectiveness of the Change of
Control or going private transaction, or (b) if the Company (or the surviving entity) sets aside
the funds in a trust or other funding arrangement, the actual earnings of such trust or other
funding arrangement.
4. As used herein,
“Change of Control” means the acquisition, in a transaction or a series of related transactions, by
any person or group, other than Xxxxxxx X. Xxxxx or members of the immediate family of Xxxxxxx X.
Xxxxx or trusts for the benefit of Xxxxxxx X. Xxxxx or his immediate family (or an entity or
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entities controlled by any of them) or any employee benefit plan sponsored or maintained by AMC
Networks, of the power to direct the management of AMC Networks or substantially all its assets (as
constituted immediately prior to such transaction or transactions).
“Surviving entity” means the entity that owns, directly or indirectly, after consummation of any
transaction, substantially all the assets of the Company as constituted immediately prior to
consummation of such transaction. If any such entity is at least majority-owned, directly or
indirectly, by any entity (a “parent entity”) which has shares of common stock (or
partnership units) traded on a national stock exchange or the over-the-counter market, as reported
on NASDAQ, then such parent entity shall be deemed to be the surviving entity provided that if
there shall be more than one such parent entity, the parent entity closest to ownership of
substantially all the assets of the Company shall be deemed to be the surviving entity. If in
connection with any transaction, a Change of Control or going private transaction occurs and no
entity shall own, after consummation of such transaction, substantially all the assets of the
Company as constituted immediately prior to consummation of such transaction, then, notwithstanding
any other provision of this Paragraph 4 to the contrary, there shall not be deemed to be a
surviving entity so that the provisions of Paragraph 1(B) shall not be applicable.
“Going private transaction” means a transaction involving the purchase of Company securities
described in Rule 13e-3 to the Securities and Exchange Act of 1934.
“Good reason” means
a. without your express written consent any reduction in your base salary or bonus potential,
or any material impairment or material adverse change in your working conditions (as the same may
from time to time have been improved or, with your written consent, otherwise altered, in each
case, after the Grant Date) at any time after or within ninety (90) days prior to the Change of
Control including, without limitation, any material reduction of your other compensation, executive
perquisites or other employee benefits (measured, where applicable, by level or participation or
percentage of award under any plans of the Company), or material impairment or material adverse
change of your level of responsibility, authority, autonomy or title, or to your scope of duties;
b. any failure by the Company to comply with any of the provisions of this Agreement, other
than an insubstantial or inadvertent failure remedied by the Company promptly after receipt of
notice thereof given by you;
c. the Company’s requiring you to be based at any office or location more than thirty-five
(35) miles from your location immediately prior to such event except for travel reasonably required
in the performance of your responsibilities; or
d. any failure by the Company to obtain the assumption and agreement to perform this Agreement
by a successor as contemplated by Paragraph 1.
“Offer price per share” shall mean, in the case of a tender offer or exchange offer which results
in a Change of Control or going private transaction (an “Offer”), the greater of (i) the
highest price per share of common stock paid pursuant to the Offer, or (ii) the highest fair market
value per share of common stock during the ninety-day period ending on the date of a Change of Control or going private transaction.
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Any securities or property which are part or all of the
consideration paid for shares of common stock in the Offer shall be valued in determining the Offer
Price per Share at the higher of (A) the valuation placed on such securities or property by the
Company, person or other entity making such offer or (B) the valuation placed on such securities or
property by the Committee.
“Merger price per share” shall mean, in the case of a merger, consolidation, sale, exchange or
other disposition of assets that results in a Change of Control or going private transaction (a
“Merger”), the greater of (i) the fixed or formula price for the acquisition of shares of
common stock occurring pursuant to the Merger, and (ii) the highest fair market value per share of
common stock during the ninety-day period ending on the date of such Change of Control or going
private transaction. Any securities or property which are part or all of the consideration paid
for shares of common stock pursuant to the Merger shall be valued in determining the merger price
per share at the higher of (A) the valuation placed on such securities or property by the Company,
person or other entity which is a party with the Company to the Merger, or (B) the valuation placed
on such securities or property by the Committee.
“Acquisition price per share” shall mean the greater of (i) the highest price per share stated on
the Schedule 13D or any amendment thereto filed by the holder of twenty percent (20%) or more of
the Company’s voting power which gives rise to the Change of Control or going private transaction,
and (ii) the highest fair market value per share of common stock during the ninety-day period
ending on the date of such Change of Control or going private transaction.
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