SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
Current
Report
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): November
14, 2005
Charter
Communications, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or Other Jurisdiction of Incorporation or Organization)
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000-27927
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43-1857213
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(Commission
File Number)
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(I.R.S.
Employer Identification
Number)
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12405
Powerscourt Drive
St.
Louis, Missouri 63131
(Address
of principal executive offices including zip code)
(314)
965-0555
(Registrant's
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR
240.13e-4(c))
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On
November 14, 2005, Charter Communications, Inc. ("Charter"), executed an
employment agreement with Grier C. Raclin, effective as of October 10, 2005.
The
agreement provides that Mr. Raclin shall be employed in an executive capacity
as
Executive Vice President and General Counsel with management responsibility
for
Charter's legal affairs, governmental affairs, compliance and regulatory
functions and to perform such other legal, executive, managerial and
administrative duties as are assigned or delegated by the Chief Executive
Officer or the equivalent position, at a salary of $425,000, to be reviewed
on
an annual basis. The agreement also provides for a one time signing bonus
of
$200,000, the grant of 50,000 restricted shares, an option to purchase 100,000
shares of Charter common stock under the Incentive Stock Plan, an option
to
purchase 145,800 shares of Charter common stock under the Long Term Incentive
portion of the Incentive Stock Plan, and 62,775 performance shares under
the
Incentive Stock Plan. He shall be eligible to participate in the incentive
bonus
plan, the 2005 Executive Cash Award Plan, and to receive such other employee
benefits as are available to other senior executives. The term of this agreement
is two years from the effective date of the agreement. In the event that
Mr.
Raclin is terminated by Charter without "cause'' or by Mr. Raclin for "good
reason,'' as those terms are defined in the employment agreement, Raclin
will
receive (a), if such termination occurs before the first scheduled payout
of the
executive cash award plan (unless that failure is due to his failure to execute
the required related agreement), or at any time within one year after a change
of control as defined in the agreement, two (2) time his salary or (b) if
such
termination occurs at any other time, his salary for the remainder of the
term
of the agreement or twelve months' salary, whichever is greater; a pro rata
bonus for the year of termination; a lump sum payment equal to payments due
under COBRA for the greater of twelve months or the number of full months
remaining in the term of the agreement; and the vesting of options and
restricted stock for as long as severance payments are made. The employment
agreement contains a one-year non-compete provision (or until the end of
the
term of the agreement, if longer) in a Competitive Business, as such term
is
defined in the agreements, and two-year non-solicitation clauses. Mr. Raclin
is
entitled to relocation assistance pursuant to Charter's executive homeowner
relocation plan and the costs for temporary housing until he consummates
the
purchase of a home in the St. Louis area or August 16, 2006, whichever occurs
first.
The
full
text of Mr. Raclin's employment agreement is filed herewith as Exhibit
99.1.
The
following exhibit is filed pursuant to Item 1.01:
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Exhibit
Number
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Description
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99.1
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Employment
Agreement of Grier C. Raclin.*
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*
Filed
herewith.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, Charter
Communications, Inc. has duly caused this Current Report to be signed on its
behalf by the undersigned hereunto duly authorized.
CHARTER
COMMUNICATIONS, INC.
Registrant
Dated:
November 14, 2005
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By:/s/
Paul E. Martin
Name:
Paul E. Martin
Title:
Senior
Vice President,
Interim
Chief Financial Officer,
Princial
Accounting Officer and
Corporate
Controller
(Principal
Financial Officer and
Principal
Accounting
Officer)
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EXHIBIT
INDEX
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Exhibit
Number
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Description
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99.1
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Employment
Agreement of Grier C. Raclin.*
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*
Filed
herewith.
Exhibit
99.1
EMPLOYMENT
AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(this
“Agreement”) is entered into as of the 10th day of October, 2005 by and between
Charter
Communications, Inc.,
a
Delaware corporation (“Charter”), and Grier C. Raclin, an individual (the
“Executive”). For purposes of this Agreement, except with respect to Charter’s
obligations to Executive, the term “Company” includes Charter and all direct and
indirect subsidiaries and controlled affiliates,
W
I T N E S S E T H:
WHEREAS:
(1) Charter
and Executive desire for Executive to be employed by Charter upon and subject
to
the terms and conditions set forth in this Agreement;
(2) Charter
has offered employment to Executive upon the terms set out below, and Executive
is willing and desires to accept employment with Charter upon those terms;
and
(3) Executive’s
agreement to the terms and conditions of Sections 6 and 7 are a material and
essential condition of Executive’s employment with Charter hereafter under the
terms of this Agreement;
Now,
Therefore, in consideration of the premises, and the promises and agreements
set
forth below, the parties, intending to be legally bound, agree as
follows:
1. Employment
Terms and Duties.
1.1 Employment.
Charter
hereby employs Executive in an executive capacity as Executive Vice President
and General Counsel, and Executive hereby accepts employment by Charter in
an
executive capacity as Executive Vice President and General Counsel, upon the
terms and conditions set forth in this Agreement and under a relationship of
trust and confidence. Executive will be nominated for election as Corporate
Secretary and will serve in that capacity if so elected at the discretion of
the
Board.
1.2 Term.
The
“Effective Date” of this Agreement is Executive’s first day of active employment
with Charter, which is October 10, 2005. Executive’s employment under this
Agreement commences as of the Effective Date and unless earlier terminated
pursuant to the provisions of Section 5 below, shall terminate on the second
anniversary of the Effective Date (the “Term”). If Executive continues in
Charter’s employ thereafter, Executive’s employment shall be on an at will
basis, and only the provisions of Section 5.5.1 (a) and (b)(to the extent then
applicable), Sections 6-7, and provisions directly related to their enforcement,
shall continue to have any application or effect.
1.3 Duties.
Executive is employed as Executive Vice President and General Counsel with
management responsibility for Charter’s legal affairs, governmental affairs,
compliance and regulatory functions, and to perform such other legal, executive,
managerial and administrative duties, as are assigned or delegated to Executive
from time to time by the Chief Executive Officer (or equivalent position, if
there is no Chief Executive Officer). It is anticipated this will include
performing the functions of corporate secretary if so elected by the Board.
Executive will report directly to the Chief Executive Officer of Charter (or
equivalent position, if there is no Chief Executive Officer) and will work
out
of Charter’s corporate
headquarters
in the St. Louis, Missouri metropolitan area. Executive will devote
substantially all Executive’s business time and attention to the business of the
Company, will act in good faith to promote the success of the Company’s
business, and will cooperate fully with the Executive Officers of Charter
and
the Board of Directors of Charter in the advancement of the best interests
of
the Company. Executive will perform Executive’s duties to the best of
Executive’s abilities using Executive’s best efforts and in accordance with
applicable law, and will comply with and carry out all Company policies and
codes of conduct. Executive will travel from time to time to the extent
reasonably necessary to the performance of Executive's duties hereunder.
Nothing
in this Section 1.3, however, will prevent Executive from engaging
in
additional activities in connection with personal investments and community
affairs, and from serving on the board of directors of other companies, that
are
not inconsistent with Executive’s duties under this Agreement (which community
affairs and board positions shall be disclosed to and subject to approval
by the
Chief Executive Officer and/or Chairman of the Board of Directors); provided
such activities do not create the appearance of or an actual conflict of
interest and do not violate any other provisions of this Agreement.
1.4 Service
for Subsidiaries And Affiliates; Indemnification.
Executive may be nominated and appointed to an office with Charter, and/or
to
one or more boards of directors or offices of subsidiaries and affiliates of
Charter during Executive’s employment. At a minimum, Executive will be nominated
by Charter for election to the office of Corporate Secretary for Charter no
later than at the Board of Directors’ next regularly scheduled meeting. While
serving as an officer of Charter, or as a director or officer of any such
subsidiary or affiliate, and while performing any duties for any such subsidiary
or affiliate, Executive will serve and fulfill all duties without additional
compensation. Executive will be covered in such capacities by any directors
and
officers insurance policy Charter may have in place from time to time and by
the
Company’s indemnification policies as may be in effect from time to time, as
applicable.
2. Compensation.
2.1 Basic
Compensation; Signing Bonus.
(a) Base
Salary.
Starting
the Effective Date, Executive will be paid a base salary at an annual rate
of
not less than Four Hundred Twenty-Five Thousand Dollars ($425,000) (the
“Salary”) during Executive’s employment. The Salary will be payable in equal
periodic installments according to Charter’s customary payroll practices, but no
less frequently than monthly. Executive’s salary will be reviewed on an annual
basis generally at or near April 1st
of each
year, with merit increase adjustments awarded based on performance as determined
by the “Board” (the term “Board” meaning, whenever used herein, the Board of
Directors of Charter or the Compensation Committee or other designated committee
of the Board of Directors of Charter), but shall not be reduced below the rate
set forth above without Executive’s written consent. When increased or decreased
in accordance with the terms of this Agreement, the new minimum base annual
salary shall be deemed Executive’s “Salary” for all purposes of this
Agreement.
(b) Signing
Bonus.
Executive will be paid a one time signing bonus of Two Hundred Thousand Dollars
($200,000), within fifteen (15) days after Executive signs and delivers this
Agreement to Charter.
(c) Relocation
Assistance.
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(1) Executive
will be entitled to relocation assistance with regard to relocation from
Executive’s current home in Maryland to the St. Louis, Missouri metropolitan
area as and to the extent permitted by Charter’s current executive homeowner
relocation plan, through Charter’s relocation provider, Primacy. These
relocation benefits include Primacy’s paying or reimbursing Executive for
brokerage fees, transfer taxes and moving expenses, and other benefits described
below in Section 2.1 (c). A copy of this policy has been provided to Executive.
This benefit requires that a repayment agreement be signed which stipulates
that
relocation expenses must be repaid if Executive departs from the organization
within 12 months of the Effective Date of this Agreement for voluntary reasons
(other than a permitted termination of employment by Executive for Good Reason
(defined below) as provided for in Section 5).
(2) Executive
must complete the move from Maryland to the St. Louis, Missouri metropolitan
area no later than 60 days following the completion of the 2005-2006 school
year
(August 16, 2006). In the interim, as soon as practicable following the
Effective Date Executive will live in Charter supplied corporate housing in
the
St. Louis metropolitan area, or in lieu of corporate supplied housing, then
in a
mutually agreeable hotel of appropriate quality during the work week. The costs
for this temporary housing/hotel will be covered by Charter’s homeowner
relocation plan until Executive consummates the purchase of a home in the St.
Louis metropolitan area, or August 16, 2006, whichever first occurs.
(3) If
Executive’s family moves to the St. Louis metropolitan area before August 16,
2006, but before Executive purchases a home in the St. Louis metropolitan area,
then between the time of the move and the time Executive purchases a home in
the
St. Louis metropolitan area, Executive and Executive’s family may stay in
Charter-supplied corporate housing (that accommodates three children and a
dog)
in the St. Louis metropolitan area. The costs for this housing will be covered
by Charter’s homeowner relocation plan, as it is for Executive’s temporary
housing, but not for housing after November 15, 2006.
(4) Until
Executive’s family relocates to the St. Louis metropolitan area (which must
occur by August 16, 2006), Charter will reimburse Executive for all reasonable
and necessary costs incurred by Executive to travel to and from Executive’s
Maryland residence to St. Louis (and, to the extent corporate housing is not
provided, then as part of travel costs, the reasonable cost for staying during
the week at an agreed hotel of suitable quality for Charter executives) on
a not
more than weekly basis during this time period. In addition, Charter will pay
for the travel costs for up to three (3) house hunting / school visit trips
for
Executive and Executive’s family under and per the terms of Charter’s relocation
policy. This is on the accepted understanding that Executive will act in good
faith to make reasonable efforts to minimize the costs associated with such
travel. All travel costs incurred will be reimbursed under Charter’s normal
expense reimbursement policies as soon as administratively practicable after
submission of the expenses and associated required documentation. To the extent
such expense reimbursements are considered taxable income, Charter will
reimburse Executive for those expenses on a “grossed up” basis for such taxes
(i.e., including any taxes on such tax reimbursement to the degree it also
is
deemed income) based on Executive’s taxable compensation from Charter in that
year, calculated on an annualized basis. Under Charter’s current practice, such
gross up payments are made at year end.
2.2 Incentive
Compensation.
(a)
Bonus
Plan. During
Executive’s employment, Executive shall be entitled to participate in an
incentive bonus program established by the Board to measure and reward
management for the financial performance of Charter that applies to senior
executive officers of Charter generally,
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(excluding
any special incentive or bonus plan, that is not a plan or program generally
applicable to other senior executives, that may be developed by the Board for
the President and/or Chief Executive Officer, the Chief Operating Officer and/or
another specific executive officer of Charter (unless specifically designated
as
a participant in such plan by the Board, in their sole discretion)), with a
target bonus percentage for the plan described below of not less than sixty
percent (60%) of Salary (i.e., Executive shall receive a lump sum bonus payment
equal to 60% of Salary if the conditions for full target bonus payment under
that plan are met). In all cases, the payment of any incentive compensation
shall be at the discretion of the Board, which may consider any factors it
deems
relevant, including the assessment of the performance of Executive and Charter
during the relevant time period, provided the criteria used to determine whether
Executive should receive a bonus under the plan shall be substantially
consistent with those used to determine whether another senior executive
participating in that same plan receives a bonus under the plan. The terms
of
any incentive compensation or bonus plan and any payouts or awards thereunder
shall be established and determined from time to time by the Board in its
discretion, provided that the terms applicable to Executive shall be consistent
with those applicable to other participants in the same plan. In no event,
however, shall payment of any such amount be made later than two and one-half
months after the end of the calendar year in which all conditions to payment
are
satisfied and the amount otherwise was determined to be payable. For fiscal
years falling within the term of this Agreement, Executive will be entitled
to
participate in the Company’s bonus plan for executive vice presidents generally
with a target bonus of at least sixty percent (60%) of Salary. Participation
for
2005, and the target bonus for 2005, shall be pro rated based upon that portion
of the fiscal year during which Executive is employed by Charter.
(b) Cash
Award Plan.
Executive will participate in the Charter Communications Inc. 2005 Executive
Cash Award Plan (the “Cash Award Plan”), a copy of which is attached hereto as
Exhibit 2, on the same terms as are applicable generally to participants in
the
Cash Award Plan. For 2005, an amount equal to 100% of Executive’s base salary
($425,000) will be credited on Executive’s start date as a book entry to
Executive’s Plan Award Account under the Cash Award Plan.
2.3 Equity
Awards.
(a) Restricted
Stock.
(1) On
the
date Executive starts employment with Charter, Executive shall be granted an
award of 50,000 restricted shares of Charter common stock upon and subject
to
the terms of the Charter Communications, Inc. 2001 Stock Incentive Plan (the
“Stock Incentive Plan”) and the standard restricted stock agreement issued under
that Stock Incentive Plan, in the same manner as other similarly situated
officers generally. These restricted shares will vest, during Executive’s
employment, annually in equal installments over a three (3) year time period
from the grant date.
(2) During
Executive’s employment, Executive will be treated on an equivalent basis with
other Executive Vice Presidents at the same reporting level as Executive with
respect to the right to participate in any types of major non-performance based
awards of restricted stock or similar equity participations made after the
Effective Date, excluding situations where awards of restricted stock or similar
equity participations are made as part of an offer of employment to a new
executive, or where a special plan or special award is granted or made available
by the Board or the CEO to a single executive.
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(b) Stock
Options.
On the
Effective Date, Executive shall be granted the following options to purchase
shares of Charter common stock pursuant to and under the terms of the Incentive
Stock Plan and the standard stock option agreement issued under that plan:
(1)
an option to purchase 100,000 shares of Charter common stock under the Incentive
Stock Plan, and (2) an option to purchase 145,800 shares of Charter common
stock
under the Long Term Incentive portion of the Incentive Stock Plan (it being
understood that entitlement to such options shall not be tied to any particular
performance criteria, but will vest as set forth below during employment).
These
options will vest, during Executive’s employment, annually in equal installments
over a four (4) year time period from the grant date. The option price shall
be
the fair market value for the shares as of the Effective Date as determined
according to Charter’s standard practices.
(c) Performance
Shares. Executive
will be granted, on the Effective Date, with an award of 62,775 performance
shares under and upon the terms of the Incentive Stock Plan, which Executive
will be eligible to earn on the same terms that apply to other executives
generally under that plan. For purposes of this participation, Executive will
be
eligible to earn these shares over the three (3) year performance cycle January
2006-December 2008, based on performance against objective performance criteria
established by the Board and applicable to other senior executive participants.
Executive’s ability to earn these performance shares shall not be based upon
performance prior to January 1, 2006.
(d) Long
Term Incentive Plan. Executive
will participate in Charter’s Long Term Incentive Plan at a level commensurate
with other Executive Vice Presidents at the same level receiving future option,
performance share, restricted share and/or long-term incentive compensation
as
determined by the Board in its discretion and excluding situations where awards
of restricted stock and/or options are made as part of an offer of employment
to
a new executive, or where a special plan or special award is granted or made
available by the Board or the CEO to a single executive.
2.4 Welfare
Benefits. During
Executive’s employment, Executive will be permitted to participate in such
pension, profit sharing, life insurance, disability insurance, hospitalization,
major medical, directors and officers indemnification or insurance policy,
and
other employee benefit plans of Charter that may be in effect from time to
time
generally for other senior executives of Charter having the same pay grade
as
Executive, and with the same co-pays and contribution requirements applicable
to
Charter senior management employees generally, all to the extent Executive
is
eligible under the terms of such plans (collectively, the “Benefits”). The
Benefits shall be subject to change and discontinuation from time to time as
the
same may be changed or discontinued as to Charter employees in the same pay
grade as Executive and/or Company employees generally.
2.5 Business
Expenses and Perquisites. During
Executive’s employment, Charter will
promptly reimburse Executive (or pay directly to the supplier of services)
for
all reasonable and necessary out-of-pocket expenses actually incurred by
Executive in connection with the performance of Executive's duties hereunder
(including without limitation, appropriate business entertainment activities,
expenses incurred by Executive in attending approved conventions, seminars,
and
other business meetings, necessary state licensing, continuing legal education
and bar membership fees for up to three (3) state bar memberships, membership
costs for professional organizations that are reasonably supportive of
Executive’s performance, and promotional activities); in each case subject to
Executive's furnishing Charter with evidence reasonably satisfactory to Charter
(such as receipts) substantiating the claimed expenditures (such expenses being
commensurate with the office and position of Executive and within
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budgetary
limitations), subject to compliance with the terms of any expense reimbursement
policy from time to time in effect (including with respect to pre-approvals),
and subject to Executive providing Charter with such other information and
documentation as may be necessary or required by Charter to deduct such expenses
for purposes of the United States Internal Revenue Code of 1986, as amended
(the
“Code”). All such payments will be made no later than two and one-half months
after the end of the calendar year in which Executive became entitled to
receive
such payment.
3. Facilities
and Expenses. During
Executive’s employment, Charter will furnish Executive office space, equipment,
supplies, and such other facilities and personnel as Charter deems necessary
or
appropriate for the performance of Executive’s duties under this Agreement.
Charter will pay Executive’s dues in such state bar associations as Executive
belongs or is licensed per this Agreement and such other professional
organizations as the Chief Executive Officer approves as reasonably supportive
of Executive’s performance.
4.
Vacations
and Holidays. Executive
will be entitled to three (3) weeks paid vacation per contract year in
accordance with the vacation policies of Charter in effect for its executive
officers from time to time. Vacation must be taken by Executive at such time
or
times as approved by the Chief Executive Officer and/or the designee thereof.
Executive will also be entitled to the paid holidays as and to the extent set
forth in Charter’s policies as the same may change from time to time for
employees generally.
5. Termination.
5.1 Events
of Termination.
Executive’s employment, Salary, Benefits, and Incentive Compensation, and any
and all other rights of Executive under this Agreement (excluding accrued rights
and benefits), will terminate prior to the expiration of the Term specified
in
Section 1.2:
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(a)
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upon
the death of Executive;
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(b)
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upon
the Disability of Executive (as defined in Section 5.2) immediately
upon notice from either party to the
other;
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(c)
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for
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
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(d)
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without
Cause (as defined in Section 5.3), immediately upon notice
from
Charter to Executive, or at such later time as such notice may
specify;
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(e)
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for
Good Reason (as defined in Section 5.4) upon not less than
thirty
days’ (nor more than ninety (90) days) prior notice from Executive to
Charter; or
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(f)
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without
Good Reason, immediately upon notice from Executive to
Charter.
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5.2 Definition
of “Disability.”
For
purposes of Section 5.1, and 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 5.2, 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
-6-
offered
by Charter in which Executive participates. The Disability of Executive will
be
determined by a medical doctor selected by written agreement of Charter 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 Charter 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 5.2 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 5.2, and to other
specialists designated by such medical doctor, and Executive hereby authorizes
the disclosure and release to Charter of such determination and all supporting
medical records. If Executive is not legally competent, Executive’s legal
guardian or duly authorized attorney-in-fact will act in Executive’s stead under
this Section 5.2 for the purposes of submitting Executive to the
examinations, and providing the authorization of disclosure, required under
this
Section 5.2.
5.3 Definition
of “Cause.”
For
purposes of Section 5.1, and this Agreement, the term “Cause” means:
(a) Executive’s
breach of a material obligation or representation under this Agreement or breach
of any fiduciary duty owed to Charter; or any act of fraud or knowing
misrepresentation or concealment on behalf of or to Charter or the Board of
Directors;
(b) Executive’s
failure to adhere in any material respect to (i) any Company 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;
(c)
Executive’s
failure or refusal to perform any lawful duty or assignment normally considered
to be within the scope of the duties of a general counsel; or the appropriation
(or attempted appropriation) of a material business opportunity of the Company,
including attempting to secure or securing any personal profit in connection
with any transaction entered into on behalf of the Company (other than through
stock options, bonuses and other incentives provided by Charter to Executive);
(d)
Executive’s misappropriation (or attempted misappropriation) of any of the
Company’s funds or property; or any breach of fiduciary duty to the Company or
any plan or program sponsored by the Company;
(e) 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 the Company or its reputation; or the
institution of criminal charges against Executive, which are not dismissed
within sixty (60) days after institution, for fraud, embezzlement, any offense
involving dishonesty or constituting a breach of trust, or any felony (including
without limitation a crime in any jurisdiction other than the United States
or
-7-
any
state
thereof in which Company does business which would constitute such a felony
under the laws of the United States or any state thereof);
(f) Executive’s
admission of liability of, or finding of liability for, the 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;
(g) conduct
by Executive in connection with Executive’s employment that constitutes willful
misconduct, recklessness, or gross neglect of any duty or responsibility
required under this Agreement;
(h)
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 Company
premises; “excessive” meaning either repeated unprofessional use or any single
event of consumption giving rise to significant intoxication or unprofessional
behavior; or
(i)
Executive’s
material violation of any federal, state or local law that may result in a
direct or indirect financial loss to the Company or damage the Company’s
reputation.
If
Executive commits or is charged with committing any offense of the character
or
type specified in Section 5.3 (e), (f) or (i) above, then Charter 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
and
all other compensation or other amounts paid hereunder during such suspension
of
Executive’s employment, and (x) (unless otherwise precluded by or because of the
terms of the applicable plan) any of the restricted stock or options that vested
during such suspension of Executive’s employment shall forthwith be cancelled,
and (y) if any such stock options, the shares subject thereto, or the restricted
shares that vested during such suspension of Executive’s employment have
theretofore been sold by Executive, the cash value thereof shall be repaid
to
Charter immediately.
5.4 Definition
of “Good Reason.”
For
purposes of Section 5.1, and this Agreement, the term “Good Reason” shall mean
(a) any reduction in Executive’s Salary, (b) with respect to the target bonus
percentage specified in Section 2.1 (a), a reduction in the target bonus
percentage assigned to the Executive for a plan year from the target bonus
percentage for such plan assigned to Executive in the immediately preceding
plan
year (it being understood that, with respect to application of this provision
to
the 2006 plan year, the target bonus percentage assigned to the Executive in
the
prior year shall be 60%), (c) instruction to relocate Executive’s primary
workplace to a location that is more than fifty (50) miles from the office
where
Executive is initially assigned to work as Executive’s principal office, or
outside the greater metropolitan area where such office is located, whichever
is
greater, or (d) without Executive’s consent, a reduction in Executive’s title, a
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), or a transfer or reassignment to another executive of major
responsibilities assigned to Executive that are part of the responsibilities
and
functions assigned to a General Counsel of a public company; in each case if
Executive objects in writing within 10 days, unless Charter retracts and/or
rectifies the reduction in Salary, the
-8-
reduction
in title, the change in reporting structure, the transfer or reassignment
of
major responsibilities, or instruction to relocate, within 30 days following
Charter’s receipt of timely written objection from Executive.
5.5 Termination
Pay.
Effective upon the termination of Executive’s employment, Charter 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 5.5 and in Section 4, except to the extent otherwise
provided for in the Incentive Stock Plan, any Charter stock incentive or stock
option plan, or any Charter cash award plan (including, among others, the Cash
Award Plan), approved by the Board. For purposes of this Section 5.5,
Executive’s designated beneficiary will be such individual beneficiary or trust,
located at such address, as Executive may designate by notice to Charter from
time to time or, if Executive fails to give notice to Charter of such a
beneficiary, Executive’s estate. Notwithstanding the preceding sentence, Charter
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.
5.5.1 Termination
by Executive for Good Reason or by Charter without Cause.
(a) If
(x)
prior to the time when Executive receives the first scheduled payout under
the
Cash Award Plan (except in the event that Executive’s failure to execute the
agreement contemplated by Article 7 of the Cash Award Plan is the sole reason
for non payment of the scheduled payout, in which case the time period will
be
established according to when the Executive first became eligible to receive
the
first scheduled payout under the Cash Award Plan) or (y) at any time within
the
one (1) year period of time after a Change in Control (as said term is defined
in the Stock Incentive Plan; it being understood that cessation of Charter’s
status as a “public company” shall not in and of itself constitute a Change in
Control), Executive terminates Executive’s employment for Good Reason, or
Charter terminates Executive’s employment other than for Cause (but not because
of the Disability or death of Executive), Executive will be entitled to receive
on and subject to the conditions of this Agreement:
(1) Two
(2)
times Executive’s then-existing Salary. Subject to the provisions of Section
5.6, this amount (the “Separation Payment”) will be paid over the balance of the
Term at the time employment terminated or twelve (12) months, whichever was
greater, in equal bi weekly installments on the Company’s regular pay days for
executives, and commencing with the first payday after all conditions in Section
5.6 are satisfied; provided that, to the extent required to avoid the tax
consequences of Section 409A of the Code, 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 after the six (6) month anniversary of the date
Executive’s employment terminates.
(2) The
amount of Executive’s incentive compensation for the year during which the
termination is effective (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 as and when incentive compensation under such plan for
the year in question is paid to other participants generally but not later
than
two and one-half months after the end of the calendar year in which the
termination is effective; provided that, to the extent required to avoid the
tax
consequences of Section
-9-
409A
of
the Code, the payment shall be delayed until the day after the six (6) month
anniversary of the date Executive’s employment terminates. 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 Executive’s
employment;
(3) 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;
(4) a
lump
sum payment (net after deduction of taxes and other required withholdings)
equal
to the product of (x) the greater of (i) the number of full months remaining
in
the Term at the time Executive’s employment terminated, or (ii) twelve (12),
times (y) 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 5.5.1 (a) (1), and will not take into account
future increases in costs during the applicable time period; and
(5)
to
the
extent authorized and permitted by the terms of the applicable plan, any stock
options and restricted stock previously awarded to Executive will continue
to
vest under such plan for the period of time immediately following termination
of
Executive’s employment that is equal to the period of time used to calculate the
payment under Section 5.5.1 (a) (1). This period of time qualifies, in the
case
of a payment under Section 5.5.1, as the period of time during which Executive
is receiving severance for purposes of Section 5.4 of the 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) (1) above qualifies as “severance” for purposes of Section 5.4 of the Stock
Incentive Plan.
Executive
shall be entitled to no other compensation or benefits except as expressly
provided in this paragraph or as determined by the Board or its designee.
(b) If
during
the Term (except in a case where Section 5.5.1 (a) applies) Executive terminates
Executive’s employment for Good Reason within the meaning of Section 5.4 (a) or
(b), or Charter terminates Executive’s employment other than for Cause (but not
because of the Disability or death of Executive), Executive will be entitled
to
receive on and subject to the conditions of this Agreement:
(1) Executive’s
then-existing Salary for the remainder of the Term specified in Section 1.2,
or
a period of twelve (12) months, whichever is greater. Subject to the provisions
of Section 5.6, this amount (the “Separation Payment”) will be paid over the
period of time used to calculate the Separation Payment (i.e., the balance
of
the Term at the time employment terminated or twelve (12) months, whichever
was
greater) in equal bi weekly installments on the Company’s regular pay days for
executives, and commencing with the first payday after all conditions in Section
5.6 are satisfied; provided that, to the extent required to avoid the tax
consequences of Section 409A of the Code, 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 after the six (6) month anniversary of the date
Executive’s employment terminates.
(2) The
amount of Executive’s incentive compensation for the year during which the
termination is effective (prorated for the period from the beginning of the
year
in question until the effective
-10-
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 as and when incentive
compensation under such plan for the year in question is paid to other
participants generally but not later than two and one-half months after the
end
of the calendar year in which the termination is effective; provided that,
to
the extent required to avoid the tax consequences of Section 409A of the
Code,
the payment shall be delayed until the day after the six (6) month anniversary
of the date Executive’s employment terminates. 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 Executive’s
employment;
(3) 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;
(4) A
lump
sum payment (net after deduction of taxes and other required withholdings)
equal
to the product of (x) the greater of (i) the number of full months remaining
in
the Term at the time Executive’s employment terminated, or (ii) twelve (12),
times (y) 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 5.5.1 (a) (1), and will not take into account
future increases in costs during the applicable time period; and
(5)
To
the
extent authorized and permitted by the terms of the applicable plan, any stock
options and restricted stock previously awarded to Executive will continue
to
vest under such plan for the period of time immediately following termination
of
Executive’s employment that is equal to the period of time used to calculate the
payment under Section 5.5.1 (a) (1). This period of time qualifies, in the
case
of a payment under Section 5.5.1, as the period of time during which Executive
is receiving severance for purposes of Section 5.4 of the 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) (1) above qualifies as “severance” for purposes of Section 5.4 of the Stock
Incentive Plan.
Executive
shall be entitled to no other compensation or benefits except as expressly
provided in this paragraph or as determined by the Board or its designee.
5.5.2 Termination
by Executive without Good Reason or by Charter for Cause.
If prior
to the expiration of the Term or thereafter, Executive terminates Executive’s
employment without Good Reason or if Charter terminates this Agreement for
Cause, Executive will be entitled to receive Executive’s then-existing 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. Executive shall be
entitled to no other compensation or benefits except as expressly provided
in
this paragraph or as determined by the Board or its designee.
5.5.3 Termination
upon Disability.
If prior
to the expiration of the Term, Executive’s employment is terminated by either
party as a result of Executive’s Disability, as determined under
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Section 5.2,
Charter will pay Executive his or her then-existing Salary through the remainder
of the calendar month during which such termination is Effective and for
the
lesser of (i) six consecutive months thereafter, or (ii) the date on which
any
disability insurance benefits commence under any disability insurance coverage
furnished by Charter to Executive; provided, however, that in the event the
Company has no long term disability insurance plan in force at the time of
termination under this Section 5.5.3, then Charter instead will pay Executive
in
accordance with the provisions of Section 5.5.1 (b)(1). Any unvested options
and
shares of restricted stock shall terminate upon a termination for Disability
unless otherwise provided for in any applicable plan or award agreement.
Executive shall be entitled to no other compensation or benefits except as
expressly provided in this paragraph or as determined by the Board or its
designee.
5.5.4 Termination
upon Death.
If
Executive’s employment terminates because of Executive’s death, Executive will
be entitled to receive Executive’s then-existing Salary through the end of the
calendar month in which the death occurs and shall be paid 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 upon Death unless otherwise provided for in any applicable
plan or award agreement. Executive shall be entitled to no other compensation
or
benefits except as expressly provided in this paragraph or as determined by
the
Board or its designee.
5.5.5 Benefits.
Except
as otherwise required by law, Executive’s accrual of, or participation in plans
providing for, the Benefits will cease at the effective date of the termination
of employment, and Executive will be entitled to accrued benefits pursuant
to
such plans only as provided in such plans.
5.6 Conditions
To Payments. To
be
eligible to receive (and continue to receive) and retain the payments and
benefits described in Section 5.5.1 (a) or Section 5.5.1 (b), Executive must
comply with the provisions of Sections 6 and 7 and first execute and deliver
to
Charter, and comply with, an agreement (the “Separation Agreement”) prepared by
Charter that is in the form attached hereto as Exhibit 1, with such changes
and
additions as Charter’s outside legal counsel considers necessary and appropriate
to enforce the same, including revisions to comply with and/or address changes
in applicable laws and recent court decisions. This Separation Agreement 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). Payments under and/or benefits provided by Sections 5.5.1 (a) or (b)
(as
applicable) will not be made unless and until Executive executes and delivers
the Separation Agreement to Charter within twenty-one (21) days after delivery
of the document (or such lesser time as Charter’s outside legal counsel (other
than Executive) may specify in the document) and all conditions to the
effectiveness of that Separation Agreement and the releases contemplated thereby
have been satisfied (including without limitation the expiration of any
applicable revocation period without revoking acceptance). It is understood
and
agreed that if a form of Separation Agreement is not presented to Executive
within forty-five (45) days after Executive’s employment terminated, then the
requirement that Executive executes and delivers the Separation Agreement will
be deemed to be satisfied.
5.7 Excise
Tax Limitation.
(a)
Except
as provided in Section 5.7 (c), to the extent that any payment, distribution,
or
acceleration of vesting to or for the benefit of the Executive by Charter
(within the meaning of Section 280G of the Code and regulations thereunder),
whether paid or payable or distributed or distributable pursuant to
-12-
the
terms
of this Agreement, the Incentive Stock Plan, the Cash Award Plan, 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) if and to the extent that a reduction in the Total
Payments would result in the Executive retaining a larger amount, on an
after-tax basis (taking into account federal, state and local income taxes
and
the Excise Tax), than if the Executive received the entire amount of such Total
Payments. Unless the Executive shall have given prior written notice specifying
a different order to Charter to effectuate the foregoing, Charter 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 each case in reverse order beginning with payments or
benefits which are to be paid the farthest in time from the Determination (as
hereinafter defined). Any notice given by the Executive pursuant to the
preceding sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing the 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 5.7 (a), and the amount of such reduction, shall be made at Charter's
expense by an accounting firm selected by the Executive from among the six
largest accounting firms in the United States or at the Executive's expense
by
an attorney selected by the Executive. Such accounting firm or attorney (the
"Determining Party") shall provide its determination (the "Determination"),
together with detailed supporting calculations and documentation to Charter
and
the Executive within ten (10) days of the termination of Executive's employment.
If the Determining Party determines that no Excise Tax is payable by the
Executive with respect to the Total Payments, it shall furnish the Executive
with an opinion reasonably acceptable to the 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 Charter and the
Executive. If the Determining Party determines that an Excise Tax would be
payable, Charter shall have the right to accept the Determination of the
Determining Party as to the extent of the reduction, if any, pursuant to Section
5.7 (a), or to have such Determination reviewed by an accounting firm selected
by Charter, at Charter's expense. If Charter's accounting firm and the
Determining Party do not agree, a third accounting firm shall be jointly chosen
by the Determining Party and Charter, in which case the determination of such
third accounting firm shall be binding, final and conclusive upon Charter and
the Executive.
(c) Notwithstanding
the foregoing Sections 5.7 (a) and (b), if, after the date hereof, Charter
shall
agree to pay or reimburse an employee other than the CEO for any Excise Taxes
that may be applied to payments to such employee under Sections 280G or 4999
of
the Code, such reimbursement (or “gross-up”) shall also be paid by Charter or
reimbursed by Charter to Executive so that Executive receives the full benefit
of all payments specified hereunder without regard to such Excise Tax and
without reducing the Total Payments to Executive.
6. Non-Disclosure
Covenant; Employee Inventions.
6.1 Acknowledgments
by Executive.
Executive acknowledges that (a) during the Employment Period and as
a part
of Executive’s employment, Executive 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, Charter desires to obtain exclusive
ownership of each invention by Executive, and Charter will be at a substantial
competitive disadvantage if it
-13-
fails
to
acquire exclusive ownership of each invention by Executive; and (d) the
provisions of this Section 6 are reasonable and necessary to prevent
the
improper use or disclosure of Confidential Information and to provide Charter
with exclusive ownership of all inventions and works made or created by
Executive.
6.2 Confidential
Information.
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.
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
Charter:
(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 are 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 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) communications
made by or to Executive or one of Executive’s direct or indirect reports that is
subject to the attorney client privilege, and any other information that
constitutes or is protected by the work product doctrine;
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(g) non-public
or personal information concerning the Company’s employees, officers, directors
and shareholders; and
(h)
any
other trade secret or information of a confidential or proprietary
nature.
Executive
shall not make or use any notes or memoranda relating to any Confidential
Information except for the benefit of the Company, and will, at Charter’s
request, destroy or 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.
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 available to Executive on a non-confidential basis from any
third party, the disclosure of which to Executive does not to Executive’s
knowledge violate any contractual, ethical 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 was or became generally available
to
the public other than as a result of a wrongful disclosure by Executive or
by
any other person bound by a confidentiality obligation to the Company in respect
of such Confidential Information.
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 Charter) 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 Charter 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 Charter during the Term,
Executive will return to Charter all of the Proprietary Items in Executive’s
possession or subject to Executive’s control, and Executive shall not retain any
copies, abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
6.3 Proprietary
Developments.
6.3.1 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 Charter and shall be
Charter’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 or general know how acquired by
Executive in the course of Executive’s employment with Charter. Executive hereby
transfers and assigns to Charter 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 Charter’s counsel, to effect and confirm such assignment,
transfer and waiver, to direct the issuance of patents, trademarks, or
copyrights
-15-
to
Charter with respect to such Developments as are to be Charter’s exclusive
property or to vest in Charter title to such Developments; provided, however,
that the expense of securing any patent, trademark or copyright shall be borne
by Charter.
The
parties agree that Developments shall constitute Confidential
Information.
6.3.2 "Work
Made for Hire."
Any work
performed by Executive during Executive's employment with Charter 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 Charter. 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 Charter all of Executive’s right,
title, and interest in such work product including, but not limited to, all
copyrights and other proprietary rights.
6.3.3 Cooperation.
Both
during the Term and thereafter, 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. Charter shall bear all costs in
connection with Executive's compliance with the terms of this
section.
7. Non-Competition
and Non-Interference.
7.1 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 7 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.
7.2 Covenants
of Executive.
For
purposes of this Section 7.2, the term “Restricted Period” shall mean the period
commencing on the Effective Date and terminating on the later of (i) the second
anniversary (or, in the case of Section 7.2 (a), the first anniversary) of
the
date Executive’s employment terminated, or (ii) the end of the Term. In
addition, 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 5.5. In consideration of
the
acknowledgments by Executive, and in consideration of the compensation and
benefits to be paid or provided to Executive by Charter, Executive covenants
and
agrees that during the Restricted 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:
(a) in
the
United States or any other country or territory where the Company then conducts
its business: engage in, operate, finance, control or be associated with 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 with a Competitive Business, as an employee,
consultant, contractor, or in any other capacity (excluding employment, work
or
consultation that strictly involves providing legal advice to a Competitive
Business that is not otherwise prohibited by any ethical obligation); 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
-16-
any
business, person or entity who or which is engaged in a Competitive Business
(excluding services, advice or consultation that strictly involves providing
legal advice to a Competitive Business that is not otherwise prohibited by
any
ethical obligation). 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-based internet based or wireless system for
delivering television, music or other entertainment programming, provides
telephony services using cable connection, provides data or internet service,
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 7.2(a) 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; (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, 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 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;
and
(iii) so as to prohibit Executive from engaging in the authorized practice
of
law (it being understood that this does not relieve Executive, or constitute
a
waiver by Charter, of any ethical obligation concerning the representation
of
any client in a matter adverse to Charter or one of its subsidiaries or
affiliates);
(b) contact,
solicit or provide any service (excluding the practice of law or legal advice
that is not otherwise prohibited by any ethical obligation) in competition
with
the Company 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 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
(c) personally
solicit or recruit for employment, any person or persons who are employed by
Charter 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 personally assist anyone
else in recruiting any such employee to work for another company or business
or
discuss with any such person his or her engaging in a business activity in
competition with the Company. This provision shall not apply to secretarial,
clerical, custodial or maintenance employees;
(d) perform
any work as an employee, consultant, contractor, or in any other capacity with
(excluding employment, services or consultation that strictly involves providing
legal advice to a Competitive Business that is not otherwise prohibited by
any
ethical obligation), directly or indirectly invest
-17-
or
own
any interest in, serve as an officer, director or advisor or consultant to,
or
directly or indirectly provide any services or advice to Cequel III (or any
of
its affiliates, or any entity invested in or owned or controlled by Cequel
III
or any of its principals, excluding publicly traded corporations in which
such
person(s) or entities own or control less than a 5% interest), or any company
or
business in which Cequel III or any of Cequel III’s principals own an interest
(other than a publicly traded corporation in which such person(s) and entities
own or control less than a 5% interest). It is understood that the principals
of
Cequel III are Jerry Kent and Howard Wood. The provisions of this Section
7.2(d)
shall not be construed or applied so as to prohibit Executive from engaging
in
the authorized practice of law (it being understood that this does not relieve
Executive, or constitute a waiver by Charter, of any ethical obligation
concerning the representation of any client in a matter adverse to Charter
or
one of its subsidiaries or affiliates); or
(e) disparage
or criticize, or make any derogatory or critical statement about, Charter or
any
of its subsidiaries or affiliates, or any of their respective present or former
directors, officers, employees, or agents.
If
Executive violates any covenant contained in this Section 7.2, then the term
of
the covenants in this Section shall be extended by the period of time Executive
was in violation of the same.
The
covenants contained in this Section shall be interpreted and applied in a manner
which complies with Missouri Supreme Court Rules of Professional Conduct Rule
4-5.6 and which does not in any way violate the Missouri Supreme Court Rules
of
Professional Conduct.
7.3 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 7.2 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 Executive’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, Charter shall be entitled to equitable relief by way
of
injunction or otherwise. If any provision of Section 6 or 7 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 Charter
(or , in the case of Section 7.6, Executive) the maximum restriction on
Executive’s activities (or, in the case of Section 7.6, Charter’s activities)
permitted by applicable law in such circumstances. Charter’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 Charter or by Charter’s failure to exercise any of its rights under
any such agreement.
7.4 Notices.
In
order to preserve Charter’s rights under this Agreement, Charter 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 Charter shall not be liable
for
doing so.
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7.5 Injunctive
Relief and Additional Remedy.
Executive acknowledges that the injury that would be suffered by Charter as
a
result of a breach of the provisions of this Agreement (including any provision
of Sections 6 and 7) would be irreparable and that an award of monetary
damages to Charter for such a breach would be an inadequate remedy.
Consequently, Charter 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
Charter will not be obligated to post bond or other security in seeking such
relief. Without limiting Charter’s rights under this Section or any other
remedies of Charter, if Executive breaches any of the provisions of
Section 6 or 7, Charter will have the right to cease making any payments
otherwise due to Executive under this Agreement.
7.6 Covenants
Of Charter.
After
termination of Executive’s employment, Charter’s executive officers and Human
Resource employees will not criticize, denigrate, disparage, or make any
derogatory or critical statement about Executive to any third party entity,
non-director third party, or other person not affiliated with Charter (including
but not limited to in any internet publication, posting, message board or
weblog), or instruct others to do so. This provision shall cease to apply when
the provisions of Section 7.2 (e) cease to apply to Executive. A breach or
violation of the provisions set forth above in this Section 7.6 shall not bar,
preclude, limit or be a defense to Charter’s right to enforce, and/or Charter’s
right to recover damages or other relief for any breach of, any of the covenants
or agreements of Executive set out in Section 6 or 7.2 of this Agreement.
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.
7.7 Covenants
of Sections 6 and 7 are Essential and Independent
Covenants.
The
covenants by Executive in Sections 6 and 7 are essential elements of
this
Agreement, and without Executive’s agreement to comply with such covenants,
Charter would not have entered into this Agreement or employed Executive.
Charter 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
Charter. Executive’s covenants in Sections 6 and 7 are independent
covenants and the existence of any claim by Executive against Charter, under
this Agreement or otherwise, will not excuse Executive’s breach of any covenant
in Section 6 or 7. 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 6 and
7.
Charter’s right to enforce the covenants in Sections 6 and 7 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 6 and 7, 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
6 or 7 of this Agreement.
8. Executive’s
Representations And Further Agreements.
8.1 Executive
represents, warrants and covenants to Charter that:
-19-
(a) 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;
(b) On
or
prior to the date hereof, Executive has furnished to Charter 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;
(c) 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
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
(d) Executive
has not provided, nor been requested by Charter to provide, to Charter, 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.
8.2 During
and subsequent to expiration of the Term, the Executive will
cooperate with Charter, and furnish any and all complete and truthful (to the
best of Executive’s knowledge)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
Charter and its representatives concerning such matters. 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 Charter 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 Charter 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 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.
9. General
Provisions.
9.1 Binding
Effect; Delegation of Duties Prohibited.
Neither
this Agreement nor any rights or obligations of Charter under this Agreement
may
be assigned or transferred by Charter except that such Agreement, rights and/or
obligations may be assigned or transferred pursuant to a merger or
consolidation, or the sale or liquidation of all or substantially all of the
assets of Charter, provided that the assignee or transferee is the successor
to
all or substantially all of the assets of Charter and such assignee or
transferee assumes the liabilities, obligations and duties of Charter, as
contained in this Agreement, either contractually or as a matter of law. 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
-20-
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). Charter
also shall have the right, with Executive’s consent, to delegate its duties
under this Agreement and assign its rights under this Agreement to any
subsidiary or affiliate. Any actual or attempted delegation or assignment
in
contravention of this Section 9.1 shall be null and void ab
initio.
9.2 Notices.
All
notices and other communications under this Agreement must be in writing and
will be deemed to have been duly given when (a) delivered by hand (with
written confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by registered mail,
return receipt requested, or (c) when received by the addressee, if
sent by
a nationally recognized overnight delivery service (receipt requested). Notices
and other communications under this Agreement shall be sent, in the case of
Charter to the attention of the Chairman of the Board of Directors at Charter’s
principal business office and, in the case of Executive, to the address or
facsimile number set forth below (or to such other address or facsimile number
as Executive may designate by notice to Charter) or which may be designated
by
Executive and Executive’s home address in Charter’s employment records
(according to the last address on file).
Mr.
Grier
C. Raclin
202
Primrose Street
Chevy
Chase, MD 20815
9.3
Entire
Agreement; Amendments.
(a)
This
Agreement contains the entire agreement between the parties with respect to
its
subject matter and supersedes all prior oral and written communications,
agreements and understandings between the parties with respect to terms and
conditions of employment, including, without limitation, specifically that
certain November 22, 2004 memorandum regarding severance guidelines for
executives; provided, however, that this Agreement does not relieve Executive
of
Executive’s obligations under any agreement concerning confidentiality of
information, non competition, non solicitation of employees or customers, non
disparagement or assignment of inventions. Superseding such other agreements
shall be deemed to not be a termination thereunder.
(b)
Neither this Agreement nor any of its terms may be amended, added to, changed
or
waived except in a writing signed by Executive and the President and/or Chief
Executive Officer of Charter or designee thereof. Notwithstanding anything
herein to the contrary, Charter hereby reserves the right to unilaterally amend
this Agreement as necessary to avoid the imposition of liability under or as
a
consequence of the application of the provisions of Section 409A of the Code.
(c)
Executive shall not be entitled to, and waives any rights under or with respect
to, severance or other benefits under any existing or future severance plans,
policies, programs or guidelines established or published by Charter, including,
but not limited to, that certain November 22, 2004 memorandum regarding
severance guidelines for executives.
9.4 Survival,
Captions. This
Agreement shall inure to the benefit of Charter, its successors and assigns.
This Agreement shall survive the termination of Executive’s employment. The
captions used in this Agreement do not limit the scope of the provisions. And
shall not be used to interpret the meaning of
-21-
the
terms
of this Agreement. Unless otherwise expressly provided, the word “including”
does not limit the preceding words or terms.
9.5 Governing
Law; Jurisdiction and Venue.
This
Agreement is deemed to be accepted and entered into in the State of Missouri
and
shall be governed by and construed and interpreted according to the internal
laws of the State of Missouri without reference to conflicts of law principles.
In any suit to enforce this Agreement, venue and jurisdiction is proper in
the
St. Louis County Circuit Court and (if federal jurisdiction exists) the U.S.
District Court for the Eastern District of Missouri, and Executive waives all
objections to jurisdiction in any such forum and any defense or claim that
either such forum is not a proper forum, is not the most convenient forum,
or is
an inconvenient forum.
9.6 Severability.
If any
provision of this Agreement is held invalid or unenforceable by any court of
competent jurisdiction, the other provisions of this Agreement will remain
in
full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to
the
extent not held invalid or unenforceable.
9.7 Counterparts;
Effective by Facsimile Signatures.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. This
Agreement may be executed by facsimile signatures.
9.8 Successors;
Binding Agreement.
Subject
to the provisions of Section 9.1, this Agreement shall inure to the benefit
of
and be binding upon personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees of
Executive and successors and assigns of Charter. Other than Company and
Executive, and, subject to Section 9.1 hereof, their respective successors
and assigns, there are no intended beneficiaries of this Agreement.
9.9 Withholding
Taxes; Delay In Payments.
Company
may withhold from any amounts payable under this Agreement such Federal, state
and local taxes as may be required to be withheld pursuant to any applicable
law
or regulation. In no event shall Charter be required to make, or Executive
be
required to receive, any payment called for by this Agreement if such payment
at
that time shall result in the application of the tax consequences spelled out
in
Section 409A of the Code. In that case, payment will be made at such time as
will not result in the imposition of any adverse tax consequences spelled out
in
Section 409A of the Code.
9.10 General
Satisfaction.
Except
as otherwise specified in this Agreement, this Agreement supersedes and replaces
any prior employment or other agreement between Executive and Charter, and
Charter shall not have any further liability arising out or in connection with
any such prior agreement, whether oral or written, made on or before the
Effective Time with or for the benefit of Executive.
Remainder
of this page is intentionally left blank.
-22-
IN
WITNESS WHEREOF,
the
parties have executed and delivered this Agreement as of the date first written
above.
CHARTER
COMMUNICATIONS, INC.
Date: November
14,
2005 By:
/s/ Neil
Smit
Date: November
14,
2005
/s/ Grier C.
Raclin
Grier
C. Raclin
-23-
Exhibit
1
SEPARATION
AGREEMENT AND RELEASE
FOR
<NAME>
This
Separation Agreement and Release (this “Agreement”) is entered into between
Charter Communications, Inc. (the “Company” or “Charter”) and me,
<NAME>,
as a
condition to and in order to receive payments under my Employment Agreement
with
Charter (the “Employment Agreement”). 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 payments and benefits called for by
Sections 5.5.1 ____ of the Employment Agreement, which consist of the
following:
[Insert
specific payments and benefits here based on the particular provision in
question]
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.
(b) Complete
Release:
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 or 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 or causes of action in any
way
arising out of or based upon 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 rights, lawsuits, causes of action or claims 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 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
-24-
requires
employers to provide leaves of absence under certain circumstances; (i) the
Sarbanes-Oxley 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; (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. 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, restricted stock award agreement or the 2005 Executive
Cash Award Plan based upon my service to and ending the date my employment
terminates, 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.
-25-
(e) Non-Disparagement:
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. Charter hereby agrees that its executive officers
and
Human Resource employees will not criticize, denigrate, disparage, or make
any
derogatory or critical statement about me to any third party entity,
non-director third party, or other person not affiliated with Charter (including
but not limited to in any internet publication, posting, message board or
weblog), or instruct others to do so. 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 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 ___________ [Insert date of termination]. 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
-26-
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 97) 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) 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.
(j) 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.
This
Agreement was presented to me on [_____]. 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 [_____]in which to consider it, sign it and return it to Lynne Ramsey.
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:
Employee:
-27-
Signature:
________________________ Date
Signed:
________________________
Printed
Name:
________________________
Company:
Charter Communications, Inc.
Signature:
____________________________ Date
Received:
______________
Printed
Name: ___________________________
Please
Return To:
Lynne
Ramsey
Charter
Communications, Inc.
12405
Powerscourt Drive
St.
Louis, MO 63131-3647
-28-