Exhibit 10.52a
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “
Agreement ”), dated and effective the 1
st day of August (the “ Effective Date
”) is made by and between CHARTER COMMUNICATIONS, INC., a
Delaware corporation (the “ Company ”), and
Marwan Fawaz , an adult resident of Colorado (the “
Executive ”).
RECITALS:
WHEREAS, the Executive and the Company have previously
entered into that certain Employment Agreement dated August 1,
2006 (the " Old Employment Agreement ") and the
parties desire to amend and restate in its entirety the Old
Employment Agreement;
WHEREAS, it is the desire of the Company to assure itself
of the services of Executive by engaging Executive as its Executive
Vice President and Chief Technical Officer and the Executive
desires to serve the Company on the terms herein
provided;
WHEREAS, in connection with the entry into the Agreement,
the Executive will be granted performance units and restricted
shares of Company Stock pursuant to the Company's
2001 Stock Incentive Plan, as amended as of the date hereof
(the “ Special Equity
”);
WHEREAS, Executive’s agreement to the terms and
conditions of Sections 17 and 19 are a material and essential
condition of Executive’s employment with the Company
hereafter under the terms of this Agreement;
NOW, THEREFORE , in consideration of the foregoing and of the
respective covenants and agreements set forth below, the parties
hereto agree as follows:
(a) “Allen”
shall mean Paul G. Allen (and his heirs or beneficiaries under his
will(s), trusts or other instruments of testamentary disposition),
and any entity or group over which Paul G. Allen has Control and
that constitutes a Person as defined herein. For the
purposes of this definition, “ Control ” means
the power to direct the management and policies of an entity or to
appoint or elect a majority of its governing board.
(b) “Annual
Base Salary” shall have the meaning set forth in Section
5.
(c) “Board”
shall mean the Board of Directors of the Company.
(d) “Bonus”
shall have the meaning set forth in Section 6.
(e) The
Company shall have “Cause” to terminate
Executive’s employment hereunder upon
Executive’s:
(i) Executive’s
breach of a material obligation (which, if curable, is not cured
within ten business (10) days after Executive receives written
notice of such breach)
or
representation under this Agreement or breach of any fiduciary duty
to the Company which, if curable, is not cured within ten business
(10) days after Executive receives written notice of such breach;
or any act of fraud or knowing material misrepresentation or
concealment upon, to or from the Company or the Board;
(ii) Executive’s
failure to adhere in any material respect to (i) the
Company’s 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;
(iii) Executive’s
misappropriation (or attempted misappropriation) of a material
amount of the Company’s funds or property;
(iv) 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 or could reasonably be expected to adversely
affect the Company or its business reputation; or the institution
of criminal charges against Executive, which are not dismissed
within sixty (60) days after institution, for fraud, embezzlement,
any felony offense involving dishonesty or constituting a breach of
trust or moral turpitude;
(v) Executive’s
admission of liability of, or finding of liability, for a knowing
and deliberate 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;
(vi) conduct by
Executive in connection with Executive’s employment that
constitutes gross neglect of any material duty or responsibility,
willful misconduct, or recklessness which, if curable,
is not cured within ten business (10) days after Executive receives
written notice of such breach;
(vii) 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;
(viii) willful or grossly
negligent commission of any other act or failure to act in
connection with the Executive’s duties as an executive of the
Company which causes or reasonably may be expected (as of the time
of such occurrence) to cause substantial
economic injury
to or substantial injury to the business reputation of the Company
or any subsidiary or affiliate of the Company, including, without
limitation, any material violation of the Foreign Corrupt Practices
Act, as described herein below.
If Executive commits or is charged with
committing any offense of the character or type specified in
subparagraphs 1(e)(iv), (v) or (viii) above, then the Company 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 compensation paid in cash hereunder from the
date of the suspension. Notwithstanding anything to the
contrary in any stock option or equity incentive plan or award
agreement, all vesting and all lapsing of restrictions on
restricted shares shall be tolled during the period of suspension
and all unvested options and restricted shares for which the
restrictions have not lapsed shall terminate and not be exercisable
by or issued to Executive if during or after such suspension the
Executive 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 offense specified in subparagraphs 1(e)(iv), (v) or (viii)
above or any matter that gave rise to the suspension.
(f) “Change
of Control” shall be deemed to have occurred if:
(i) any
Person is or becomes a “beneficial owner” (as
determined for purposes of Regulation 13D-G, as currently in
effect, of the Exchange Act), directly or indirectly, of securities
representing the Applicable Percentage (as defined below) or more
of the total voting power of all of the Company’s then
outstanding voting securities. For purposes of this
Section 1(f), the term “Person” shall not
include: (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, or (C) an underwriter temporarily holding
securities pursuant to an offering of said securities, or (D)
Allen. For purposes of this Agreement, in the case of a
recapitalization or other exchange involving the exchange of
Company voting stock for the Company's debt, the group of
debtholders that acquires such Company voting stock as the result
of such recapitalization or exchange shall not be treated as a
single Person solely by reason of such recapitalization or
exchange; or
(ii) the
occurrence of a merger, consolidation or sale
or other disposition of all or substantially all of the assets of
the Company (a “Business Combination”), in each case,
unless following such Business Combination: (A) all
or substantially all of the individuals and entities who were the
“beneficial owners” (as determined for purposes of
Regulation 13D-G, as currently in effect, of the Exchange Act) of
the outstanding voting securities of the Company immediately prior
to such Business Combination beneficially own, directly or
indirectly, securities representing more than fifty percent (50%)
of the total voting power of the then outstanding voting securities
of the entity resulting from such Business Combination (or such
assets as the case may be) or the parent of such entity in
substantially the same proportionate ownership as in effect
immediately prior to the Business Combination (the “Resulting
Entity”); and (B) a majority of the members of the board
of directors or other governing body of the Resulting Entity were
members of the Board at the
time of the
execution of the initial agreement, or at the time of the action of
the Board, providing for such Business Combination; or
(iii)
the consummation of a plan of complete liquidation or dissolution
of the Company; or
(iv)
if and when Allen shall no longer have the power to appoint a
majority of the Board, during any period of two (2) consecutive
calendar years, individuals who either (A) at the beginning of such
period are members of the Board ("Incumbent Directors"), or (B)
whose election to the Board during such period is approved by a
vote of the majority of those members of the Board who are
Incumbent Directors at the time of such approval, whereupon such
individual so approved shall be treated as an Incumbent Director
with respect to future approvals, cease for any reason to
constitute a majority of the Board.
Notwithstanding the
foregoing subsections 1(f)(i) through (iii), a Change of
Control shall not include any transaction or series of
transactions, including any transactions described above if,
following such transaction or transactions, (x) Allen has the
largest percentage ownership of the voting securities in the
Company or any successor or surviving corporation held by any
Person (other than any Person that includes Allen), provided
such percentage ownership is more than twenty-five percent or (y)
Allen has the power to appoint a majority of the members of the
Board of Directors.
For purposes of this
definition, (A) at all times that Allen is or are the
“beneficial owner(s)” (as determined for purposes of
Regulation 13D-G, as currently in effect, of the Exchange Act) of
securities representing in the aggregate at least fifty percent
(50%) of the total voting power of all of the Company’s then
outstanding voting securities, “Applicable Percentage”
means fifty percent (50%); and (B) at all times that Allen is or
are the beneficial owner(s) of securities representing in the
aggregate less than fifty percent (50%) of the total voting power
of all of the Company’s then outstanding voting securities,
“Applicable Percentage” means any percentage that is
more than the greater of (1) the percentage of the total voting
power of all of the Company’s then outstanding voting
securities represented by securities beneficially owned by Allen or
(2) twenty-five percent (25%).
(g) “Code”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
(h) “Committee”
shall mean either the Compensation and Benefits Committee of the
Board, or a Subcommittee of such Committee duly appointed by the
Board or the Committee.
(i) “Company”
shall have the meaning set forth in the preamble hereto.
(j) “Company
Stock” shall mean the $.10 par value common stock of the
Company.
(k) “Date
of Termination” shall mean (i) if Executive’s
employment is terminated by Executive’s death, the date of
Executive’s death and (ii) if Executive’s employment is
terminated pursuant to Section 14(a)(ii) – (vi), the date of
termination of employment, as defined in 409(A) regulations under
the Code.
(l) For
purposes of 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, 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 offered by
Company in which Executive participates. The Disability
of Executive will be determined by a medical doctor selected by
written agreement of Company 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 Company 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 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, and to other specialists designated
by such medical doctor, and Executive hereby authorizes the
disclosure and release to Company 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 for the purposes of submitting Executive to the
examinations, and providing the authorization of disclosure,
required under this Section.
(m) “Executive”
shall have the meaning set forth in the preamble hereto.
(n) “Good
Reason” shall mean any of the events described herein that
occur without Executive's prior written consent: (i) any reduction
in Executive’s Annual Base Salary, Target Bonus Percentage,
or title except as permitted hereunder, (ii) any failure to pay
Executive's compensation hereunder when due; (iii) any material
breach by the Company of a term hereof; (iv) relocation
of Executive’s primary workplace to a location
that is more than fifty (50) miles from the office where
Executive is then assigned to work as Executive’s principal
office; (v) a transfer or reassignment to another executive of
material responsibilities that have been assigned to Executive (and
were not identified by the Company to be assigned only on an
interim basis at the time of assignment or thereafter) and
generally are part of the responsibilities and functions assigned
to a Chief Technical Officer of a public corporation or (vi)
any 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)" (in each case
“(i)” through “(vi)” only if Executive
objects in writing within 30 days after being informed of such
events and unless Company retracts and/or rectifies the claimed
Good Reason within 30 days following Company’s receipt of
timely written objection from Executive); (vii) if within six
months after a Change of Control, Executive has not received an
offer from the surviving company to continue in his or her position
immediately prior to such Change of Control under at least the same
terms and conditions
(except that
the value of equity-based compensation after such Change of Control
need only be commensurate with the value of equity-based
compensation given to executives with equivalent positions in the
surviving company, if any) as set herein; (viii) the Company's
decision not to renew this Agreement at the end of its term, or
(ix) the failure of a successor to the business of the Company to
assume the Company's obligations under this Agreement in the event
of a Change of Control during its term. A
(o) “Notice
of Termination” shall have the meaning set forth in Section
14(b).
(p) “Options”
shall have the meaning set forth in Section 7
(q) “Performance
Unit” and “Performance Shares” shall have the
meaning set forth in Section 9 hereof.
(r) “Person”
shall have the meaning set forth in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934.
(s) “Plan”
shall mean the 2001 Stock Incentive Plan as amended by the Company
from time to time.
(s) “Restricted
Shares” shall have the meaning set forth in Section
8.
(t) “Term”
shall have the meaning set forth in Section 2.
(u) "Voluntary"
and "Voluntarily" in connection with Executive's termination of
employment shall mean a termination of employment resulting from
the initiative of the Executive, excluding a termination of
employment attributable to Executive's death or Disability. A
resignation by Executive that is in response to a communicated
intent by the Company to discharge Executive other than for Cause
is not considered to be "Voluntary" and shall be considered to be a
termination by the Company for the purposes of this
Agreement.
2.
Employment Term
. The Company hereby employs the Executive, and the
Executive hereby accepts his employment, under the terms and
conditions hereof, for the period (the “ Term ”)
beginning on the Effective Date hereof and terminating upon the
earlier of (i) July 31, 2010 (the “ Initial
Term” ) and (ii) the Date of Termination as defined in
Section 1(k), and, if not terminated earlier, will be automatically
renewed at the end of its Initial Term and on each anniversary
thereafter for a period of one (1) year unless either party shall
give written notice of cancellation to the other party not later
than ninety (90) days prior to the end of the Initial Term or
anniversaries thereof.
3.
Position and Duties . Executive shall
serve as Executive Vice President and Chief Technical
Officer reporting to the Chief Executive Officer, with such
responsibilities, duties and authority as are customary for such
role, including, but not limited to, overall management
responsibility for technology and engineering in the
Company. Executive shall devote all necessary business
time and attention, and employ Executive’s reasonable best
efforts, toward the fulfillment and execution of all assigned
duties, and the satisfaction of defined annual and/or longer-term
performance criteria.
4.
Place of Performance . In connection with
Executive’s employment during the Term, Executive's initial
primary workplace shall be the Company’s offices in or near
Denver, CO except for necessary travel on the Company’s
business.
5.
Annual Base Salary. During the Term, Executive
shall receive a base salary at a rate not less than
$470,025.00 per annum (the “ Annual Base Salary
”), less standard deductions, paid in accordance with the
Company’s general payroll practices for executives, but no
less frequently than monthly. The Annual Base Salary
shall compensate Executive for any official position or
directorship of a subsidiary or affiliate that Executive is asked
to hold in the Company or its subsidiaries or affiliates as a part
of Executive’s employment responsibilities. No
less frequently than annually during the Term, the Committee, on
advice of the Company’s Chief Executive Officer, shall review
the rate of Annual Base Salary payable to Executive, and may, in
its discretion, increase the rate of Annual Base Salary
payable hereunder; provided, however , that any increased
rate shall thereafter be the rate of “Annual Base
Salary” hereunder.
6.
Bonus . Except as otherwise provided for
herein, for each fiscal year or other period consistent with the
Company’s then-applicable normal employment practices during
which Executive is employed hereunder on the last day (the “
Bonus Year ”), Executive shall be eligible to receive
a bonus in an amount up to 70 % of Executive’s Annual
Base Salary (the “ Bonus ” and bonuses at such
percentage of Annual Base Salary being the “ Target
Bonus ”) pursuant to, and as set forth in, the terms of
the Executive Bonus Plan as such Plan may be amended from time to
time, plus such other bonus payments, if any, as shall be
determined by the Committee in its sole discretion, with such Bonus
being paid on or before February 28 of the year next following the
Bonus Year, or as soon as is administratively practicable
thereafter (e.g., after the public disclosure of the
Company’s financial results for the prior year on SEC Form
10-K or on such replacement form as the SEC shall determine, for
those years as the Company’s securities are traded publicly,
and the Company’s annual financial results are reported to
the shareholders, for those (if any) years as the Company’s
securities are not traded publicly).
7.
Stock Options . The Company has previously
granted to Executive options to purchase shares of Company Stock as
set forth in Exhibit A hereto, and may, in the Committee’s
discretion, grant to Executive additional options to purchase
shares of Company Stock (all of such options, collectively, the
“ Options ”) pursuant to the terms of the Plan,
any successor plan and an associated Stock Option
Agreement.
8.
Restricted Shares . The Company has
previously granted to Executive Restricted Shares of Company Stock
as set forth in Exhibit A hereto, and may, in the Committee’s
discretion, grant to Executive Restricted Shares (collectively, the
“ Restricted Shares ”), which shall be subject
to restrictions on their sale as set forth in the Plan and an
associated Restricted Shares Grant Letter.
9.
Performance Shares Units . The Company has
previously granted to Executive Performance Share Units of which
some have been converted into Performance Shares (which are not
aggregated in the forgoing description of Restricted Shares) as set
forth in Exhibit A hereto, and may, in the Committee’s
discretion, grant to Executive further Performance Share Units
(collectively, the “ Performance Units ”), which
shall be subject to restrictions on their sale as set forth in the
Plan and an associated Performance Unit Grant Letter.
10.
Executive Cash Bonus Plan . Executive
currently is a participant in the Company’s 2005 Executive
Cash Award Plan – amended for 2006 with a Plan
Award (as defined in such Plan) as set forth in Exhibit B and shall
remain a participant in such Plan under the terms therefore for the
term of this Agreement.
11.
Benefits . Executive shall be entitled to
receive such benefits and to participate in such employee group
benefit plans, including life, health and disability insurance
policies, and financial planning services, and other perquisites
and plans as are generally provided by the Company to its senior
executives of comparable level and responsibility in accordance
with the plans, practices and programs of the Company, as amended
from time to time.
12.
Expenses . The Company shall reimburse
Executive for all reasonable and necessary expenses incurred by
Executive in connection with the performance of Executive’s
duties as an employee of the Company in accordance with the
Company’s generally applicable policies and
procedures. Such reimbursement is subject to the
submission to the Company by Executive of appropriate documentation
and/or vouchers in accordance with the customary procedures of the
Company for expense reimbursement, as such procedures may be
revised by the Company from time to time hereafter.
13.
Vacations . Executive shall be entitled to
paid vacation in accordance with the Company’s vacation
policy as in effect from time to time provided that , in no
event shall Executive be entitled to less than three (3) weeks
vacation per calendar year. Executive shall also be
entitled to paid holidays and personal days in accordance with the
Company’s practice with respect to same as in effect from
time to time.
(a) Executive’s
employment hereunder may be terminated by the Company, on the one
hand, or Executive, on the other hand, as applicable, without any
breach of this Agreement, under the following
circumstances:
(i)
Death . Executive’s employment hereunder
shall automatically terminate upon Executive’s
death.
(ii)
Disability . If Executive has incurred a
Disability, the Company may give Executive written notice of its
intention to terminate Executive’s employment. In
such event, Executive’s employment with the Company shall
terminate effective on the 14th day after delivery of such notice
to Executive, provided that within the 14 days after such
delivery, Executive shall not have returned to full-time
performance of Executive’s duties. Executive may
provide notice to the Company of Executive's resignation on account
of a bona fide Disability at any time.
(iii)
Cause . The Company may terminate
Executive’s employment hereunder for Cause effectively
immediately upon delivery of notice to Executive, taking into
account any procedural requirements set forth under Section 1(e)
above.
(iv)
Good Reason . Executive may terminate
Executive’s employment herein for Good Reason upon (i)
satisfaction of any advance notice and other procedural
requirements set forth under Section 1(n) above for any termination
pursuant to Section 1(n)(i) through (vi) or (ii) at least 30
days’ advance written notice by the Executive for any
termination pursuant to Section 1(n)(vii) through (ix).
(v)
Without Cause . The Company may terminate
Executive’s employment hereunder without Cause upon at least
30 days’ advance written notice to the Executive.
(vi)
Resignation Without Good Reason . Executive may
resign Executive’s employment without Good Reason upon at
least fourteen (14) days’ written notice to the
Company.
(b)
Notice of Termination . Any termination of
Executive’s employment by the Company or by Executive under
this Section 14 (other than pursuant to Sections 14(a)(i)) shall be
communicated by a written notice (the “ Notice of
Termination ”) to the other party hereto, indicating the
specific termination provision in this Agreement relied upon,
setting forth in reasonable detail any facts and circumstances
claimed to provide a basis for termination of Executive’s
employment under the provision so indicated, and specifying a Date
of Termination which notice shall be delivered within the
applicable time periods set forth in subsections 14(a)(ii)-(vi)
above ( the “ Notice Period ”); provided
that the Company may pay to Executive all Annual Base
Salary, benefits and other rights due to Executive during such
Notice Period instead of employing Executive during such Notice
Period.
(c)
Resignation from Representational Capacities
. Executive hereby acknowledges and agrees that upon
Executive's termination of employment with the Company for whatever
reason, [s]he shall be deemed to have, and shall have in fact,
effectively resigned from all executive, director or other
positions with the Company or its affiliates at the time of such
termination of employment, and shall return all property owned by
the Company and in Executive’s possession, including all
hardware, files and documents, at that time.
(d)
Termination in Connection with Change in Control.
If Executive’s employment is terminated by the
Company without Cause either upon or within thirty days before or
thirteen (13) months after a Change of Control, or prior to a
Change in Control at the request of a prospective purchaser whose
proposed purchase would constitute a Change in Control upon its
completion, such termination shall be deemed to have occurred
immediately before such Change in Control for purposes of this
Agreement and the Plan.
(a)
Effective upon the termination of Executive’s employment,
Company 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 15, except to the extent otherwise provided for in
any Company stock incentive, stock option or cash award plan
(including, among others, the Plan), approved by the
Board. For purposes of this Section 15,
Executive’s designated beneficiary will be such individual
beneficiary or trust, located at such
address, as
Executive may designate by notice to Company from time to time or,
if Executive fails to give notice to Company of such a beneficiary,
Executive’s estate. Notwithstanding the preceding
sentence, Company 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.
(b)
Termination by Executive for Good Reason or by Company without
Cause . If prior to expiration of the Term,
Executive terminates his or her employment for Good Reason,
or if the Company terminates Executive’s
employment other than for Cause or Executive’s death or
Disability, Executive will be entitled to receive, subject to the
conditions of this Agreement, the following:
(i) (A)
all Annual Base Salary and Bonus duly payable under the applicable
plan for performance periods ending prior to the Date of
Termination, but unpaid as of the Date of Termination, plus (B) in
consideration for Executive’s obligations set forth in
Section 19 hereof, an amount equal to two (2) times the
Executive’s then-current rate of Annual Base Salary and
Target Bonus, which total sum shall be payable following the Date
of Termination in fifty-two (52) equal bi-weekly installments in
accordance with the Company’s normal payroll practices
provided that , if a Change of Control occurs (or is deemed
pursuant to Sec. 14(d) hereof to have occurred after such
termination) during such twenty-four (24) month period (and such
Change of Control qualifies either as a “change in the
ownership or effective control” of the Company or a
“change in the ownership of a substantial portion of the
assets” of the Company as such terms are defined under
Section 409A of the Code), any amounts remaining payable to
Executive hereunder shall be paid in a single lump sum immediately
upon such Change of Control.
(ii) if
Executive’s employment is terminated by the Company without
Cause either upon or within thirty days before or thirteen
(13) months after a Change of Control, or prior to a Change in
Control at the request of a prospective purchaser whose proposed
purchase would constitute a Change in Control upon its completion,
the Company shall treat as earned all unvested Performance Units
for which the performance term has not expired as of such Change of
Control at the rate calculated pursuant to the Plan and the
applicable Grant Letter, and shall immediately convert those Units
into Restricted Shares and accelerate as of the Date of Termination
the removal of restrictions on such shares.
(iii) 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, which amount will be paid within thirty (30) days after
the submission by Executive of properly completed reimbursement
requests on the Company’s standard forms;
(iv) a
lump sum payment (net after deduction of taxes and other required
withholdings) equal to twenty-four (24) times 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 15(b)(i) and will
not take into account future increases in costs during the
applicable time period; and
(v) notwithstanding
anything to the contrary in any award agreement, Executive shall be
deemed to be actively employed during the twenty-four (24) month
period following termination of employment for purposes of vesting
of all stock options, performance units and restricted stock;
provided that if a Change of Control occurs (or
is deemed pursuant to Sec. 14(d) hereof to have occurred after such
termination) within such period, all remaining stock options
that would have vested in the twenty-four (24) month period shall
vest, and all remaining restricted stock and performance units
whose restrictions would have lapsed in the twenty-four (24) month
period shall have their restrictions lapse immediately upon
such Change of Control; provided, however, that with respect to any
equity-based compensation awards subject to Section 409A of the
Code (as determined by independent tax counsel retained by the
Company), vesting and/or the lapse of restrictions will only be
accelerated if such Change of Control qualifies either as a
“change in the ownership or effective control” of the
Company or a “change in the ownership of a substantial
portion of the
