SEPARATION AGREEMENT AND RELEASE FOR WAYNE DAVIS
Exhibit
99.1
FOR
XXXXX XXXXX
This
Separation Agreement and Release (this “Agreement”) is entered into between
Charter Communications, Inc. (the “Company” or “Charter”) and me, Xxxxx Xxxxx,
as a condition to and in order to receive payments under my Employment Agreement
with Charter dated as of September 7, 2005 (the “Employment Agreement”) as a
result of a separation from employment as of March 23, 2006 other than for
Cause. The Company and I agree as follows:
(a) Payments
And Benefits Payable Per The Employment Agreement:
In
exchange for this Agreement, and subject to my execution of this Agreement
(and
the failure to revoke the same within seven (7) days after I sign and deliver
it), the Company will provide me with the payments and benefits called for
by
Section 5.5.1 of the Employment Agreement, which consist of the
following:
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(i)
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I
will receive the amount of base salary that would have been paid
to me,
calculated at the current annual rate of $450,000, from the date
my
employment terminated until and ending September 30, 2007 (the “Separation
Term”); provided that the total of all such payments shall not exceed,
in
the aggregate, the gross amount of $693,000. Subject to the provisions
of
Section 5.6 of the Employment Agreement, this amount (the “Separation
Payment”) will be paid over the remainder of 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 March 23, 2006 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;
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(ii)
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The
amount of my incentive compensation for 2006 (prorated for the period
from
the beginning of the year in question until the effective date of
termination) if and to the extent a bonus otherwise is payable under
the
terms of the applicable incentive bonus plan as determined by the
Board,
based upon results for the entire year. This amount will be payable
no
later than April 1, 2007 (and in no event earlier than the first
day after
the six month anniversary of the date my employment with Charter
terminated). 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;
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(iii)
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A
lump sum payment (net after deduction of taxes and other required
withholdings) equal to the product of (x) eighteen (18) times (y)
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 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;
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(v)
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To
the extent authorized and permitted by the terms of the applicable
plan,
any stock options and restricted stock previously awarded to me will
continue to vest under such plan for the remainder of the Separation
Term.
This period of time 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
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Stock
Incentive Plan). Notwithstanding the foregoing, no stock option shall remain
exercisable beyond the latest date on which the term of the stock option could
be extended without causing the stock option to be treated as deferred
compensation subject to Section 409A of the Internal Revenue Code.
These
payments and benefits will be paid and/or provided as and when called for by
the
Employment Agreement after all conditions to the effectiveness of this Agreement
and the releases called for by this Agreement have been satisfied. The right
to
retain the same shall be subject to compliance with this Agreement and the
terms
of the Employment Agreement. In the event I die before all payments and amounts
due to me hereunder are paid, any remaining payments will be made to my spouse,
if she survives me and, if not, to my estate.
Whether
or not I sign this Agreement, I will receive my wages for all time worked
through and ending March 23, 2006. I acknowledge receiving payment of the
amounts specified in this paragraph by my signature on this Agreement.
(b) Resignation;
Complete Release:
I
hereby resign 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. Subject to the
limitations described below, I unconditionally and irrevocably release Charter,
its current and former parents, plans, subsidiaries, and affiliates, and their
respective current or former employees, directors and agents and related
parties, from all known and unknown claims, lawsuits and causes of action,
if
any, that I presently could have for any event that has occurred prior to my
signing this Agreement, from any claims, lawsuits and causes of action arising
out of or relating to my employment with Charter and/or any of its subsidiaries
or affiliates to date, from any claims, lawsuits and causes of action in any
way
arising out of or based upon the Employment Agreement or any decision, promise,
agreement, policy, practice, act or conduct prior to this date of or by any
person or entity I am releasing, and from any claims, lawsuits, and causes
of
action in any way arising out of or based upon any facts occurring prior to
the
date I sign this Agreement. I understand that this means that, subject to the
limitations described below, I am releasing Charter and such other persons
and
entities from, and may not bring claims against any of them under (a) Title
VII
of the Civil Rights Act of 1964 or Sections 1981 and 1983 of the Civil Rights
Act of 1866, which prohibit discrimination based on race, color, national
origin, ancestry, religion, or sex; (b) the Age Discrimination in Employment
Act, which prohibits discrimination based on age; (c) the Equal Pay Act, which
prohibits paying men and women unequal pay for equal work; (d) the Americans
with Disabilities Act and Sections 503 and 504 of the Rehabilitation Act of
1973, which prohibit discrimination based on disability; (e) the WARN Act,
which
requires that advance notice be given of certain workforce reductions; (f)
the
Employee Retirement Income Security Act, which among other things, protects
employee benefits; (g) the Fair Labor Standards Act of 1938, which regulates
wage and hour matters; (h) the Family and Medical Leave Act of 1993, which
requires employers to provide leaves of absence under certain circumstances;
(i)
the Xxxxxxxx-Xxxxx Act of 2002, which, among other things, provides
Whistleblower protection or any other federal or state law, regulation, or
executive order prohibiting discrimination or retaliation or for breach of
contract; (j) any of the laws of the State of Missouri or any political
subdivision of any such State; or (k) any other 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 misrepresentation, defamation,
and
similar or related claims, and any other law relating to salary, commission,
compensation, benefits, and other matters. I specifically represent 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
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 and that
by virtue of the termination of
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my
employment I am not entitled to any payments under the 2005 Executive Cash
Award
Plan. 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, or 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-the-job injuries that have
already been reported.
(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, and I will withdraw with prejudice
any
such lawsuit, administrative charge or other legal action that may already
be
pending. I promise never to seek or accept any damages, remedies, or other
relief for myself personally (any right to which I hereby waive) by prosecuting
a charge with any administrative agency, or otherwise, with respect to any
claim
purportedly released by this Agreement. 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:
I will
make no statement or announcement concerning my departure from Charter except
as
may be reviewed and approved by Charter in advance. 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
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. 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. 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
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
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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 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 on March 20, 2006. 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.
(i) Return
of Property:
I will
return to the Company when my employment ends (or such later date as the Company
may establish) all files, memoranda, documents, records, credit cards, keys,
computers, cellular telephone, other equipment, badges, vehicles, Confidential
Information and any other property of the Company then in my possession or
control as directed by the Company. 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.
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This
Agreement was presented to me on March 20, 2006. I have been advised to take
this Agreement home, read it, and carefully consider all of its provisions
before signing it. I will have 21
days,
to and
including April 13, 2006 in which to consider it, sign it and return it to
Xxxxx
Xxxxxx. This agreement will not become effective until it has been executed
by
the Company representative named below.
I
have
carefully read this Agreement, I fully understand what it means, and I am
entering into it voluntarily.
Presented
By:
Name: /s/
Xxxx Xxxxxxxx Date
Delivered: March
23,
2006
Employee:
Signature:
/s/
Xxxxx X. Xxxxx Date
Signed: March
30,2006____
Printed
Name: Xxxxx
X. Davis________
Company:
Signature: /s/
Xxxxx X. Ramsey_____ Date
Received: April
5, 2006 ___
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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