Exhibit 10.22
AMENDED AND
RESTATED
CHANGE IN CONTROL SEVERANCE
AGREEMENT
This Amended and Restated Change In
Control Severance Agreement (this
“Agreement” ) is entered into by and
between Fisher Communications, Inc., a Washington corporation (the
“Company” ), and Colleen Brown (
“Executive” ), effective as of the close
of business on December 31, 2008.
The Company and Executive agree as
follows:
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1.
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Commitment
of Executive
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In the event that any person extends
any proposal or offer that is intended to or may result in a Change
in Control (defined below), Executive shall, at the Company’s
request, assist the Company in evaluating such proposal or offer.
Further, subject to the additional terms and conditions of this
Agreement, in order to receive the Change in Control Payment
(defined below), Executive cannot resign from the Company during
any period from the receipt of a specific Change in Control
proposal up to the consummation or abandonment of the transaction
contemplated by such proposal.
“Change in
Control” means
a change in the ownership or effective control of the Company, or
in the ownership of a substantial portion of the assets of the
Company, within the meaning of Section 409A(a)(2)(A)(v) of the
Internal Revenue Code; provided however, that an internal
reorganization of the Company shall not constitute a Change in
Control.
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3.1
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Closing of
Change In Control
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If (i) Executive remains
employed with the Company through the closing of a Change in
Control, (ii) Executive complies with his or her obligations
under Section 1 of this Agreement, and (iii) Executive is
not offered a Comparable Position with the Company upon such Change
in Control, then Executive shall receive a single cash payment in
an amount equal to two (2) times Executive’s annual base
salary for the calendar year immediately preceding such Change in
Control. Upon payment of such amount to Executive, this Agreement
shall terminate. For purposes of this Agreement,
“Comparable Position” means a position
with respect to which the authority, responsibilities, compensation
and benefits are substantially comparable in the aggregate with the
authority, responsibilities, compensation and benefits associated
with Executive’s position immediately preceding the closing
of a Change in Control.
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3.2
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Termination
Prior to Change In Control
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If (i) the Company terminates
Executive’s employment without Cause or Executive resigns for
Good Reason before a Change in Control, and (ii) within six
(6) months thereafter, the Company enters into an agreement
for a Change in Control or the Company announces or is
Exhibit 10.22
required by law to announce a prospective Change
in Control of the Company, then upon the closing of such Change in
Control, Executive shall receive a single cash payment in an amount
equal to two (2) times Executive’s annual base salary
for the calendar year immediately preceding such termination or
resignation, as the case may be. Upon payment of such amount to
Executive, this Agreement shall terminate.
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3.3
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Change in
Control Payment Defined
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Any payment under Section 3.1
or Section 3.2 of this Agreement is referred to in this
Agreement as a “Change in Control Payment”.
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3.4
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Parachute
Payment Limitation
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Notwithstanding anything in this
Agreement to the contrary, if the total of the Change in Control
Payment, together with any other payments or benefits received from
the Company, will be an amount that would cause them to be a
“parachute payment” within the meaning of
Section 280G(b)(2)(A) of the Internal Revenue Code of 1986, as
amended (the “Parachute Payment Amount”
), then the Change in Control Payment shall be reduced so that the
total amount thereof is $1 less than the Parachute Payment
Amount.
Notwithstanding any
other provision of this Agreement, payment of the Change in Control
Payment or any other amounts due under this Agreement is
conditioned upon execution by Executive, within sixty
(60) days (or such shorter period as is specified in the
release) after the occurrence of the Change in Control, of an
effective release of any and all claims, known or unknown, arising
out of or relating to Executive’s employment with the
Company, with the exception of claims arising under this Agreement
and claims that are not legally subject to waiver.
Executive’s release shall be binding upon any person or
entity that Executive can legally bind, and the released parties
will include not only the Company but also any other person or
entity against whom the released claims could be asserted. If
Executive executes the release required by this Section 3.5
within the time period specified above, payment of the Change in
Control Payment will be made within thirty (30) days following
the effective date of such release; provided, however, that in any
event, such payment shall be made no later than two and one-half
(2 1 / 2 ) months after the end of
the calendar year in which the Change in Control occurs. If
Executive fails to execute the release required by this
Section 3.5 within the time period specified above, then
Executive shall forfeit any Change in Control Payment to which she
would otherwise be entitled under this Agreement.
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4.
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Termination
of Agreement
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This Agreement terminates
immediately if, at any time before a Change in Control transaction
closes, (i) the Company terminates Executive’s
employment for Cause, (ii) Executive resigns from the Company
without Good Reason, (iii) Executive dies, or
(iv) Executive is unable to perform his or her duties and
obligations to the Company for a period of 90 consecutive days as a
result of a physical or mental disability, unless with reasonable
accommodation Executive could continue to perform such duties and
making these accommodations would not pose an undue
hardshi