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Exhibit
10.4a
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “
Agreement
”), dated and effective the 1
st day of August, 2007
(the “ Effective Date
”) is made by and between CHARTER COMMUNICATIONS, INC., a
Delaware corporation (the “ Company
”), and Eloise E.
Schmitz , an adult resident of Missouri,
RECITALS:
WHEREAS, the Executive and the Company have previously
entered into that certain Employment Agreement dated October 1,
2005 (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 Senior Vice
President Strategic Planning 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:
1.
Certain Definitions.
(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) any change in reporting structure such
that Executive no longer reports directly to the officer (by
function) to whom Executive reports at the time of the
execution of this Agreement (or equivalent position if the
Company has changed functional responsibilities of its senior
executive staff) (in each case “(i)” through
“(v)” 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 R eason within 30 days following Company’s
receipt of timely written objection from Executive); (vi) if
within six months after a Change of Control, Executive has not
received an offer from the surviving company to continue in an
equivalent position in terms of title, responsibility and
compensation (except that the
value of equity-based compensation after such Change of Control
need only be commensurate with
the value of equity-bas ed compensation given to executives with
equivalent positions in the surviving company, if any)
as set herein; (vii) the Company's decision not to renew this
Agreement
at the end of its term, or (viii) 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.
(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 Senior Vice President Strategic
Planning initially reporting to the Chief Executive Officer
but with such other reporting relationships as shall be determined
by the Chief Executive Officer from time to time”, with such
responsibilities, duties and authority as are customary for such
role, including, but not limited to, overall management
responsibility for financial strategic planning 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 St. Louis, MO. 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 $365,575.00 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 50 % 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 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.
14.
Termination
.
(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 (v) or (ii) at
least 30 days’ advance written notice by the Executive
for any termination pursuant to Section 1(n)(vii) through
(viii).
(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.
15.
Termination
Pay
(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 one (1)
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 twenty-six (26) 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 twelve (12) 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 twelve (12) 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 twelve (12)
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 twelve (12) month period
shall vest, and all remaining restricted stock and performance
units whose restrictions would have lapsed in the twelve (12)
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
assets” of the Company as such terms are defined under
Section 409A of the Code, or the first subsequent time at
which such distribution may be made in compliance with Section
409A of the Code; and
(vi) pay
the cost of up to twelve (12) months, as required, of
executive-level out-placement services (which provides as part
of the outplacement the use of an office and secretarial
support as near as reasonably practicable to Executive’s
residence).
provided, however ,
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