RETENTION BONUS AGREEMENT FOR W.K.L. “SCOTT” FERGUSON
Exhibit
10.16
RETENTION
BONUS AGREEMENT FOR W.K.L. “XXXXX” XXXXXXXX
This
(“Agreement”)
is entered into by and between you, W.K.L. “Xxxxx” Xxxxxxxx, Jr., and Grande
Communications Networks LLC, a Delaware limited liability company and
successor-in-interest to Grande Communications Networks, Inc. (the “Company”), and is
effective as of September 14, 2009 (the “Effective
Date”). In the event the Grande Communications Transaction (as
defined herein) is not consummated, this Agreement shall be null and
void.
In
consideration of the mutual promises and considerations set forth herein, the
parties agree as follows:
1. CHANGE IN
POSITION. In connection with the Grande
Communications Transaction, the Company will change your title and position with
the Company. The Company acknowledges and agrees that such change in
title and position involves a material diminution in your duties and
responsibilities with the Company and will constitute a “Good Reason
Termination” under the Employment Agreement entered into between you and Grande
Communications Networks, Inc., dated as of June 28, 2006, as amended as of
February 5, 2008 (the “Employment Agreement”). By entering into this Agreement,
the Company acknowledges and agrees that you have provided the Company with
written notice of the occurrence of this condition that may constitute a Good
Reason Termination within ninety days of its initial occurrence, as required
under Section 9(b)(3) of the Employment Agreement. The Company does
not intend to cure this condition that constitutes Good Reason Termination and
hereby waives its right to cure such condition as is otherwise provided under
Section 9(b)(3) of the Employment Agreement. In the event that you
provide sixty days notice of your intent to terminate employment within one year
of the Effective Date as required under Section 9(b)(3) of the Employment
Agreement, the Company agrees to fulfill its obligations under the Employment
Agreement under Section 9(b)(5) for Severance Pay (as defined under the
Employment Agreement), provided all other conditions thereunder to receipt of
Severance Pay have been satisfied. You agree that, at any time after
the date hereof, the Company may terminate your employment and, upon such
termination, shall be responsible for all obligations associated with such
termination as set forth under the Employment Agreement.
2. RETENTION
BONUS. If (i) you remain in continuous employment with the
Company through the date that is one hundred eighty (180) days following the
Effective Date (the “Bonus Date”) or (ii)
your employment is terminated without Cause (as defined below) by the Company
after the Effective Date but on or before the Bonus Date (each, a “Bonus Triggering
Event”), the Company will pay you a retention bonus equal to $225,000
(less payroll taxes and other applicable withholdings and deductions) (the
“Retention
Bonus”), subject to your execution of a release on a form prepared by the
Company (the “Release”). Upon the
occurrence of a Bonus Triggering Event, the Retention Bonus will be paid in a
single payment within ten (10) business days following the eighth (8th) day
after you sign and deliver the Release; provided that if you revoke the Release
within such eight (8) day period or do not execute and deliver the Release to
the Company within thirty (30) business days after the Bonus Triggering Event,
you will not be entitled to any Retention Bonus under this
Agreement. You are not eligible for the Retention Bonus if you
terminate your employment with the Company prior to the Bonus Date, including if
you terminate it as described in Section 1 above.
3. GRANDE COMMUNICATIONS
TRANSACTION DEFINED. For purposes of this Agreement, the
“Grande Communications Transaction” means the consummation of the transactions
contemplated by the Recapitalization Agreement dated as of August 27, 2009, by
and among ABRY Partners VI, L.P., Grande Communications Networks, Inc., Grande
Communications Holdings, Inc., ABRY Partners, LLC, Grande Investment L.P., and
Grande Parent LLC.
4. TERMINATION BY DEATH OR
PERMANENT DISABILITY. In the event of your death or
Disability, your employment will terminate, and neither you nor your estate will
receive the Retention Bonus described above in Section
2. “Disability” means if you become mentally or physically
incapacitated to the extent that you are unable to perform the usual and normal
duties of your occupation or involvement in the Company for a period of three
(3) months, as determined by the Company following consultation with and the
advice of your attending or family physician or other qualified
physician.
5. TERMINATION FOR
CAUSE. If your employment is terminated by the Company for
Cause before or after the Bonus Date, the Company shall not have any other or
further obligations to you under this Agreement and you shall not receive the
Retention Bonus. For purposes of this Agreement, “Cause” shall mean: (i) your
commission of a felony or a crime involving moral turpitude or the commission of
any other act involving dishonesty, disloyalty or fraud; (ii) conduct by you
tending to bring the Company into substantial public disgrace or disrepute;
(iii) your failure to perform (in any material respect) your obligations under
this Agreement, your obligations under the Employee Confidentiality Information
and Invention Assignment Agreement between you and the Company dated as of May
23, 2000 (the “Confidentiality
Agreement”), or the reasonable directives of the Chief Executive Officer
or the Board, provided, that the Chief Executive Officer or the Board shall give
you notice of such failure and you shall have thirty (30) days to cure such
failure, which if such failure is not cured during said thirty (30) day period,
the Company shall have the immediate right to terminate your employment; (iv)
your gross negligence or willful misconduct in providing the services required
under the Employment Agreement; or (v) any substance abuse of the Executive in
any manner interferes with the performance of his duties.
6. CONFIDENTIALITY AND OTHER
COVENANTS. The Company’s obligations under this Agreement are
contingent upon your performance of your obligations set forth in the Release,
Section 10 of the Employment Agreement, and the obligations as set forth in the
Confidentiality Agreement. Any breach of such obligations under the Release,
Section 10 of the Employment Agreement, or the Confidentiality Agreement will
result in an immediate termination of the Company’s obligation under this
Agreement, in addition to all other remedies available to the Company at law or
in equity. You further agree to hold confidential, and not to disclose to
anyone, any confidential information gained in the course of your employment
with the Company and any of its subsidiaries or affiliates except as necessary
and proper for carrying out your job duties. You also agree to hold
confidential, and not to disclose to anyone, the contents of this Agreement,
including its terms and any monetary consideration paid herein, except as
required by lawful subpoena, for purposes of enforcing this Agreement, to your
attorney, or to your tax advisor.
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7. CANCELLATION OF STOCK
OPTIONS. You
hereby acknowledge receipt of the Cancellation Notice from the Board of
Directors of the Company, whereby the Board of Directors communicated its intent
to terminate all options in connection with the Grande Communications
Transaction pursuant to Section 15(c)(iii) of the Grande Communications
Holdings, Inc. 2000 Stock Incentive Plan. You further acknowledge and
agree that it is your sole responsibility to exercise the vested portion of any
options under the Plan that you hold by the Cancellation Date (as defined in the
Cancellation Notice) and that any such vested options that are not so exercised
will expire upon the Cancellation Date.
8. ENTIRE
AGREEMENT. You understand and agree that this Agreement
contains and constitutes the entire understanding and agreement between you and
the Company with respect to its subject matter, that all prior agreements and
understandings, written or oral, with respect to the subject matter of this
Agreement are superseded and canceled (except that any prior written agreements
signed by you regarding confidential information and intellectual property will
remain in full force and effect), and that this Agreement may not be modified in
any manner except by a written document signed by all the parties to this
Agreement.
9. SEVERABILITY OF ANY
UNENFORCEABLE PROVISION. You understand and agree that if any
provision of this Agreement is held to be unenforceable, such provision shall be
severed from the other remaining provisions of this Agreement and it shall not
affect the validity or enforceability of the remaining provisions.
10. 409A. Notwithstanding
any provision of this Agreement to the contrary, if all or any portion of the
payments and/or benefits under this Agreement upon a termination of employment
are determined to be “nonqualified deferred compensation” subject to Xxxxxxx
000X xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended (the “Code”), and the
Company determines that you are a “specified employee” as defined in Section
409A(a)(2)(B)(i) of the Code and the final regulations promulgated thereunder
(the “Treasury Regulations”) and other guidance issued thereunder, then such
payments and/or benefits (or portion thereof) shall be paid no earlier than the
first day of the seventh month following your termination of employment (with
the first such payment being a lump sum equal to the aggregate payments and/or
benefits you would have received during such six-month period if no such payment
delay had been imposed.) For purposes of this Section 10,
“termination of employment” shall mean your “separation from service”, as
defined in Section 1.409A-1(h) of the Treasury Regulations, including the
default presumptions thereunder.
11. PARACHUTE
LIMITATIONS. Notwithstanding
any other provision of this Agreement or of any other agreement, contract, or
understanding heretofore or hereafter entered into by you with the Company or
any affiliate of the Company, except an agreement, contract, or understanding
hereafter entered into that expressly modifies or excludes application of this
paragraph (an “Other Agreement”), and notwithstanding any
formal or informal plan or other arrangement for the direct or indirect
provision of compensation to you, whether or not such compensation is deferred,
is in cash, or is in the form of a benefit to or for you (a “Benefit
Arrangement”), if you are a “disqualified individual,” as defined in
Section 280G(c) of the Internal Revenue Code of 1986, as amended, (the
“Code”), any payment (or portion thereof) under this Agreement shall not be made
(i) to the extent that such payment, taking into account all other rights,
payments, or benefits to or for you under this Agreement, all Other Agreements,
and all Benefit Arrangements, would cause any payment or benefit to you under
this Agreement to be considered a “parachute payment” within the meaning of
Section 280G(b)(2) of the Code as then in effect (a “Parachute Payment”)
and (ii) if, as a result of receiving a Parachute Payment, the aggregate
after-tax amounts that you would receive from the Company under this Agreement,
all Other Agreements, and all Benefit Arrangements would be less than the
maximum after-tax amount that you could receive without causing any such payment
or benefit to be considered a Parachute Payment. In the event that
the receipt of any such right to payment under this Agreement, in conjunction
with all other rights, payments, or benefits to or for you under any Other
Agreement or any Benefit Arrangement would cause you to be considered to have
received a Parachute Payment under this Agreement that would have the effect of
decreasing the after-tax amount that you receive as described in clause (ii) of
the preceding sentence, then you shall have the right, in your sole discretion,
to designate those rights, payments, or benefits under this Agreement, any Other
Agreements, and any Benefit Arrangements that should be reduced or eliminated so
as to avoid having the payment or benefit under this Agreement be deemed to be a
Parachute Payment.
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12. GOVERNING
LAW/VENUE. This Agreement shall be construed and interpreted
in accordance with the laws of the State of Texas. The sole and
exclusive venue for any dispute arising out of this Agreement shall be in a
court of competent jurisdiction located in Xxxxxx County, Texas.
13. EMPLOYMENT
AT-WILL. Except as explicitly provided in this Agreement, your
employment with the Company is “at will,” and either the Company or you may
terminate the employment relationship at any time, with or without cause, for
any or no reason.
14. NOTICES. Any
notice required or permitted to be given under this Agreement shall be deemed
properly given if in writing and personally delivered or mailed by certified
U.S. mail, postage prepaid with return receipt requested, in the case of notices
mailed to Employee, at the address set forth below or, in the case of notices to
the Company, to its principal office at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxx
00000, to the attention of its President.
15. MISCELLANEOUS.
(a) This
Agreement may be executed in one or more counterparts, each of which will be
deemed an original but all of which together will constitute one and the same
instrument. This Agreement will become effective when one or more
counterparts have been signed by each party and delivered to the other party,
which delivery may be made by exchange of copies of the signature page by .pdf
or other facsimile transmission.
(b) The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of subsequent breach by any party. The
language of this Agreement shall be construed as a whole, according to its fair
meaning, and shall not be construed strictly for or against either of the
parties.
(c) Neither
this Agreement nor any right, interest or obligation hereunder may be assigned
(by operation of law or otherwise) by Employee without the prior written consent
of the Company and any attempt to do so will be void.
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(d) All
provisions of this Agreement which by their terms are intended to survive
termination or expiration of this Agreement shall survive such termination or
expiration in accordance with their terms.
[Signature
page follows]
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BY
SIGNING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD ITS
TERMS AND MEANING, THAT YOU HAVE CONFERRED WITH OR HAD THE OPPORTUNITY TO CONFER
WITH AN ATTORNEY REGARDING THE TERMS AND MEANING OF THIS AGREEMENT, THAT NO
REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO SIGN THIS AGREEMENT, AND
THAT YOU HAVE SIGNED THIS AGREEMENT KNOWINGLY AND VOLUNTARILY.
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GRANDE
COMMUNICATIONS NETWORKS LLC
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EMPLOYEE
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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/s/
W.K.L. “Xxxxx” Xxxxxxxx, Jr.
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Name:
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Xxxxxxx
X. Xxxxxxx
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W.K.L.
“Xxxxx” Xxxxxxxx, Jr.
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Title:
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Chief
Financial Officer
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Date
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Date:
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Signature
Page to Xxxxxxxx Retention Bonus Agreement
