EXHIBIT 10.1
Amended and Restated Employment and
Termination Agreement dated as of June 1, 2000, between Time
Warner Cable, a division of Time Warner Entertainment Company,
L.P., a Delaware limited partnership (the “Company”),
and the employee whose name appears on the last page hereof (the
“Employee”). Employee and the Company (or its
predecessor) previously entered into the original Employment and
Termination Agreement dated as of June 29, 1989 (as amended
from time to time, the “Original Agreement”).
The Company and Employee hereby agree
to amend and restate the Original Agreement in its entirety, and to
continue Employee’s employment with the Company, on the
following terms and conditions:
1. Term . The Company
hereby employs Employee and Employee hereby accepts such employment
upon the terms and conditions hereof for a term commencing on the
date of this Agreement as set forth above and, subject to the
following sentences of this Section, ending on December 31,
2002. Unless Employee’s employment under this Agreement is
otherwise terminated in accordance with Sections 5, 6 or 7,
during the period between November 1st to November 30th of
2000 and each year thereafter, the Company shall notify Employee in
writing (using the form attached hereto as Exhibit A) of its
determination either to extend the term of this Agreement on the
same terms and conditions for an additional year, or to terminate
Employee’s employment under this Agreement in accordance with
Section 6(b), effective as provided in such notice. If the
Company shall so notify Employee of its determination to extend the
term of this Agreement and Employee accepts such extension in
writing prior to December 20th of such year, then, unless
Employee’s employment under this Agreement is otherwise so
terminated, this Agreement shall as of the January 1st immediately
thereafter have a remaining unexpired term of
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three
calendar years. If Employee fails to accept (using such form) any
such extension in writing prior to any such December 20th,
Employee shall be deemed to have given written notice of
termination without cause as provided in Section 5(a); such
termination shall be effective 90 days after such
December 20th and the provisions of Section 5(a) shall govern
as to the terms of such termination. Except as provided in this
Section 1 and Sections 5, 6 or 7, Employee’s
employment under this Agreement may not be terminated.
Sections 8 through 23 and 25 through 32 shall survive any
termination of Employee’s employment under this
Agreement.
2. Duties . Employee
shall serve in his or her current management position with the
title indicated on the last page hereof or, subject to
Section 5, in such other senior management position as the
Company shall determine. Subject to the foregoing, Employee shall
perform such duties as may be assigned by the Company to Employee
from time to time, and shall travel for business purposes to the
extent reasonably necessary or appropriate in the performance of
such duties.
Employee shall perform such duties on
a full time basis (subject to the Company’s written policies
on vacations, illness, government service, sabbaticals, etc.
applicable to employees at Employee’s level); provided
, however , that Employee shall not be precluded from
devoting such time to personal affairs as shall not interfere with
the performance of his or her duties hereunder. In performing his
or her duties hereunder, Employee shall comply with the
Company’s and Time Warner Inc.’s (“TWI”)
written policies on conflict of interest, service as a director of
another company and other policies and procedures of the Company
and TWI, including as described in TWI’s Statement of
Corporate Policy and Compliance Program Manual, as may be amended
or revised from time to time, copies of which, as currently in
effect, Employee acknowledges having received. References in this
Agreement to employees at
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Employee’s level shall mean members of the Executive Group
(defined as individuals with an assigned executive compensation
level with eligibility for the Long Term Cash Plan and Tier I Level
Stock Options, or such other substitute plans as the Company may
designate from time to time).
3. Compensation . The
Company shall pay Employee an annual salary in respect of each
calendar year of not less than the amount set forth on the last
page hereof and an annual bonus in respect of each calendar year
based on a target percentage of the annual salary paid to Employee
during such calendar year of not less than the percentage set forth
on the last page hereof. Subject to Section 5, Employee
acknowledges that his or her actual annual bonus (the “Annual
Bonus”) may vary, depending on actual performance of the
Company and Employee; provided , however , that
Employee shall be entitled to a minimum Annual Bonus in respect of
each calendar year equal to one-half of the bonus calculated based
on such target percentage (the “Target Bonus”) for such
calendar year. Employee shall also be eligible to participate in
any stock bonus, stock option, restricted stock, long-term
incentive, deferred compensation or other executive compensation
plan, whether now existing or established hereafter, to the extent
employees at Employee’s level are generally deemed eligible
to participate therein (collectively, the “Incentive
Plans”).
The Company shall evaluate the
performance of Employee at least annually in accordance with the
Company’s personnel evaluation practices, as may be in effect
from time to time, and shall determine, in its sole discretion, but
subject to Section 5 and the second sentence of this Section
3, the amount of any annual salary increase, the amount of any
Annual Bonus, whether to increase the target percentage of
Employee’s Annual Bonus, and the extent of Employee’s
participation, if any, in the Incentive Plans.
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The Company shall pay or reimburse
Employee, in accordance with Company policies applicable to
employees at Employee’s level, for all travel, entertainment
and other business expenses actually incurred or paid by Employee
(while an active employee) in the performance of his or her duties
hereunder, if properly substantiated and submitted.
4. Benefits . Employee
shall be eligible to participate in any pension, profit-sharing,
employee stock ownership, deferred compensation, vacation,
insurance, hospitalization, medical, health, disability and other
employee benefit or welfare plan, program or policy whether now
existing or established hereafter (collectively, the “Benefit
Plans”), to the extent that employees at Employee’s
level are generally deemed eligible under the general provisions
thereof.
5. Termination By
Employee .
(a)
General . Except as provided in Sections 1 or 5(b) or
by reason of Employee’s retirement under the terms of Section
5(c) or of any retirement plan in which employees of the Company
are generally eligible to participate, Employee may not terminate
his or her employment under this Agreement except upon 90 days
prior written notice and only if notice of termination has not
previously been given under any other Section hereof. Upon the
effectiveness of such termination, Employee’s employment with
the Company will terminate and Employee shall be entitled to
receive (i) any earned and unpaid portion of annual salary
accrued through the date of such termination, and (ii) subject
to the terms thereof, all benefits which may be due to Employee
under the provisions of any Benefit Plan and Incentive Plan.
Employee hereby disclaims any right to receive a pro rata portion
of his or her Annual Bonus with respect to the year in which such
termination occurs.
(b)
Following a Change in Control .
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(i) Provided
that notice of termination has not previously been given under any
other Section hereof, Employee shall have the right to terminate
his or her employment with the Company under this Agreement for
cause upon 30 days prior written notice delivered to the
Company at any time within 180 days after Employee has actual
knowledge of the occurrence of any of the following events, but
only if any such event occurs within three years following a Change
in Control, indicating in such notice which event has
occurred:
A. A
change in the location of Employee’s office or (if the
Employee’s work is located at the Company’s principal
executive offices) of the Company’s principal executive
offices, to a place which is more than 50 miles from the location
of Employee’s office or the location of the Company’s
principal executive offices, immediately prior to the occurrence of
a Change in Control;
B. A
material reduction in Employee’s decision-making, budgetary,
operating, staff and other responsibilities, taken as a whole, from
such responsibilities immediately prior to the occurrence of a
Change in Control, or a change in the person or persons to whom
Employee reported immediately prior to the occurrence of a Change
in Control, to a person or persons of lesser rank, title or
responsibility;
C. A
reduction in the aggregate cash compensation (consisting of annual
salary and Annual Bonus) paid or to be paid to Employee by the
Company in respect of any calendar year to an amount which is more
than 10% below the highest such aggregate cash compensation paid to
Employee by the Company with respect to any preceding calendar
year;
D. A
reduction in the aggregate benefits granted to Employee under the
Benefit Plans and Incentive Plans in any calendar year such that
the aggregate value
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thereof
to Employee is reduced by more than 10% from the highest value of
the benefits granted to Employee (determined on a consistent basis)
for any calendar year after 1987;
E. Any
failure by the Company to obtain the express written assumption of
the Agreement by agreement of any successor of the Company of any
assignee of all or substantially all of its assets at or prior to
such succession or assignment (such assumption not relieving the
Company of any liability hereunder); or
F. Any
material breach of this Agreement by the Company.
(ii) Upon
the expiration of the 30-day notice period provided in
Section 5(b)(i), Employee’s employment shall be
terminated and Employee shall be relieved of his or her management
position with the Company and his or her duties hereunder. Upon
Employee’s termination of employment with the Company under
this Section 5(b), Employee shall receive:
(t) subject
to the terms thereof, all benefits which may be due to Employee
under the provisions of any Benefit Plan and Incentive Plan;
(u) a
lump sum severance payment within 30 days following the
effective date of such termination in an amount equal to three
times the sum of (1) Employee’s annual salary (including
for this purpose any deferred salary, if such a program has been
offered by the Company) at the rate in effect as of
Employee’s termination of employment or immediately prior to
the Change in Control, whichever is greater, plus (2) the
greater of (xx) the average of the two most recent Annual
Bonuses received by Employee immediately prior to Employee’s
termination of employment or immediately prior to the Change in
Control, whichever is greater, and (yy) Employee’s then
applicable Target Bonus amount or the
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Employee’s applicable Target Bonus amount in effect
immediately prior to the Change in Control, whichever is
greater;
(v) in
addition to any retirement benefits to which Employee is entitled
under any defined benefit pension plan, any supplemental retirement
or excess benefit plan maintained by the Company, TWI or any of
their respective subsidiaries or any successor plans thereto
(hereinafter collectively referred to as the “Pension
Plans”), a lump sum severance payment within 30 days
following Employee’s termination of employment, in an amount
equal to the excess of (1) over (2), where (1) equals the
aggregate retirement pension to which Employee would have been
entitled under the terms of the Pension Plans (without regard to
any amendment to the Pension Plans made subsequent to the Change in
Control and on or prior to Employee’s date of termination of
employment, which amendment adversely affects in any manner the
computation of retirement benefits thereunder), determined
(A) as if Employee were fully vested thereunder, (B) as
if Employee had continued to be employed by the Company (after any
termination pursuant to this Section 5) for such additional
period of time (the “Pension Period”), not exceeding
three years, which would provide the maximum payment to Employee
under this subparagraph (v) but in no event shall Employee be
deemed to have continued to be employed by the Company after his or
her normal retirement age as defined in the Time Warner Cable
Pension Plan, (C) as if Employee had accumulated compensation
during the Pension Period in an amount equal to the amount computed
in Section 5(b)(ii)(u) and as if such compensation was paid to
Employee at the time each such amount would have been paid had
Employee remained an employee of the Company (as limited by
Section 401(a)(17) of the Internal Revenue Code of 1986, as
amended (the Code”)) and (D) by taking into account any
early retirement subsidies associated therewith and
Employee’s actual age at the expiration of the
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Pension
Period and based on the assumptions provided in the Time Warner
Cable Pension Plan for purposes of calculating alternative forms of
benefits, as a lump sum payment commencing at age 65 or any earlier
date, but in no event earlier than the expiration of the Pension
Period, whichever lump sum value is greatest; and where
(2) equals the aggregate vested retirement pension (taking
into account any early retirement subsidies associated therewith
and determined, based on the assumptions provided in the Time
Warner Cable Pension Plan for purposes of calculating alternative
forms of benefits as a lump sum benefit commencing at age 65 or any
earlier date, but in no event earlier than the date of
Employee’s termination of employment, whichever lump sum
value is greatest) to which Employee is then entitled pursuant to
the provisions of the Pension Plans;
(w) in
addition to any benefits to which Employee is then entitled under
any defined contribution employee benefit plan maintained by the
Company, TWI or any of their respective subsidiaries or any
successor plan thereto (the “Savings Plan”), a lump sum
payment within 30 days following Employee’s termination
in an amount equal to three times Employee’s eligible
compensation (as defined below) times (1) the employer’s
rate of contribution as a percentage of eligible compensation to
Employee’s accounts under the Savings Plan and any employer
matching contribution as a percentage of eligible compensation to
Employee’s account under the Savings Plan, in each case, for
the calendar year immediately prior to Employee’s termination
of employment or the calendar year immediately prior to the Change
in Control, whichever is greater, with Employee’s eligible
compensation defined as the lump sum severance payment in
Section 5(b)(ii)(u) above divided by three but subject to the
limitations set forth in the definition of Compensation in each
Savings Plan, respectively, for each calendar year, or (2) if
Employee was not eligible to participate in the Savings Plan
during
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the
calendar year immediately prior to Employee’s termination of
employment and the calendar year immediately prior to the Change in
Control on account of Employee’s failure to satisfy the
minimum age and/or service requirements, if any, for participation
in the Savings Plan, the amount which would have been contributed
as employer contributions to Employee’s account under the
Savings Plan, had Employee been eligible to so participate, and had
Employee participated at the highest contribution rate permissible
under the terms of the Savings Plan for the calendar year
immediately prior to Employee’s termination of employment or
the calendar year immediately prior to the Change in Control,
whichever calendar year yields the greater contribution with
Employee’s compensation defined as the lump sum severance
payment in Section 5(b)(ii)(u) above divided by three, but
subject to the limitation set forth in the definition of
Compensation in each Savings Plan, respectively, for each calendar
year (the total cash payments payable to Employee under these
Sections 5(b)(ii)(u), (v) and (w) are hereinafter
referred to as the “Severance Payment”);
(x) for
a period of three years beginning with Employee’s termination
of employment, continued eligibility and enrollment (including
family coverage, if any), without a premium charge therefore, in
hospital, medical and dental insurance plans providing
substantially equivalent benefit coverage to those plans in which
Employee was enrolled immediately prior to the Change in Control
unless waived in writing by Employee (or, in the event such
coverage cannot be provided, substantially similar benefits);
provided , however , that benefits otherwise
receivable by Employee pursuant to this Section 5(b)(ii)(x)
shall be reduced to the extent comparable benefits are actually
received by Employee from a subsequent employer during the
three-year period following Employee’s termination of
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employment, which comparable benefits actually received by Employee
shall be reported by the Employee to the Company upon the
Company’s request;
(y) for
a period beginning with Employee’s termination of employment
under this Section 5(b) (or any other Section hereof expressly
referencing this provision) and ending on the earlier to occur of
(1) the expiration of one year or (2) his or her
commencement of full-time employment with a subsequent employer,
the Company shall provide to Employee, without charge to Employee,
the use of reasonable office space and reasonable office facilities
as designated by the Company, together with reasonable secretarial
services in each case appropriate to an employee of
Employee’s position and responsibilities prior to such
termination of employment; and
(z) reimbursement
of fees and expenses incurred for financial and tax counseling
services selected by Employee; provided that such reimbursement
shall not exceed $10,000.
(c)
Retirement Option . Provided that, at the time of election,
the Employee (x) is actively employed by the Company,
(y) has reached the age of 55, and (z) has been employed
by the Company as member of the Executive Group for at least five
years the Employee may elect, by providing written notice to the
Company in the form attached hereto as Exhibit B, the
Retirement Option, as outlined below:
(i) Within
15 days of the Employee’s exercise of the Retirement
Option, the Company and the Employee will attempt to agree upon the
length a “Transition Period” of between six and
12 months. The Transition Period shall commence as of the date
of Employee’s written notice to the Company of Retirement
Option.
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A. If
the parties are unable, within the 15-day period, to agree on the
length of the Transition Period, then the Transition Period shall
be for six months.
B. During
the Transition Period, the Employee will remain actively employed,
at Employee’s then-current rate of compensation, and, in
addition to Employee’s other regular functions and
responsibilities, will assist the Company in identifying,
recruiting, and training the Employee’s replacement. The
Employee will continue to be responsible for the management,
direction, and performance of his/her division, operating unit or
department during the Transition Period to the full extent that
Employee was so responsible prior to the Transition Period.
(ii) At
the conclusion of the Transition Period, the term of employment
hereunder will cease and Employee will become an advisor to the
Company (the “Advisory Period”) as follows:
A. The
Advisory Period will extend for 36 months. During the Advisory
Period, the Employee will receive compensation as follows:
(x) for the first 12 months, Employee’s
then-current annual salary and bonus; (y) for the second
12 months, annual salary, plus 50% bonus; and (z) for the
third 12 months, annual salary only. The bonus amount paid in
(x) and (y) will be calculated as follows: The bonus
amount paid will be the greater of Target Bonus or the average of
the two most recent full year Annual Bonuses. All payments pursuant
to this subsection shall be made in accordance with the
Company’s ordinary timing and procedures for salary and bonus
compensation.
B. The
Employee will continue to vest in any outstanding stock options and
long-term cash incentives (or any other similar plan) during the
Advisory Period; however, the Employee will not be entitled to any
additional awards or grants. The
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Employee
will also continue to be eligible to participate in any benefit
plan (including medical, dental and vision care, long-term
disability, and life insurance) as if he/she were actively employed
during the Advisory Period. If the Employee elected premium
reimbursement from the Company in lieu of full group term life
insurance, the payments in effect at the end of the Transition
Period will be continued until the end of the Advisory Period. If
the Employee did not elect premium reimbursement from the Company,
group term life insurance equal to the amount provided at the end
of the Transition Period will be continued until the end of the
Advisory Period.
C. The
Employee will not be provided with office space or secretarial
services by the Company during the Advisory Period. However, as
soon as possible following the end of the Transition Period, the
Employee will receive a lump-sum payment of $10,000, less
appropriate taxes and deductions, as reimbursement for office
expenses incurred during the Advisory Period. No further payments
or reimbursements will be made for office space or secretarial
services during the Advisory Period.
D. During
the Advisory Period, the Employee will be eligible for
reimbursement of financial and estate planning expenses, in the
same amount and under the same terms as other employees at
Employee’s level.
E. The
Employee shall not be eligible for a Company-provided car or car
allowance during the Advisory Period. Any Company-provided car in
the possession of the Employee will be returned by Employee to the
Company prior to commencement of the Advisory Period.
F. During
the Advisory Period, the Employee will provide such advisory
services concerning the business, affairs and management of the
Company as may
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be
requested by the Company’s management, but shall not be
required to devote more than five days per month (up to eight hours
per day), to such services. The services shall be performed at a
time and place mutually convenient to both parties. The Company
will reimburse the Employee for any expenses reasonably and
necessarily incurred in providing such services, other than
expenses of the nature set forth in Section 5(c)(ii)(C). The
Company may require proof of the expenses incurred, via receipts or
other appropriate documentation.
G. The
election of this Retirement Option, including the compensation and
benefits payable during the Transition Period and the Advisory
Period described herein above, are in lieu of any and all benefits,
compensation, and payments otherwise available under this
Agreement. Employee shall have no further rights to such
compensation and benefits hereunder, except as outlined in this
Section 5(c), once Employee elects this Retirement Option.
Employee will continue to be bound to Employee’s obligations
under this Agreement, except where expressly modified herein.
H. If
the Employee accepts other employment during the Advisory Period,
(1) he/she will be terminated from payroll and will receive a
lump-sum payment for the balance of the salary and bonuses payable
during the Advisory Period and (2) his/her participation in
all incentive, benefit and insurance plans or perquisites of the
Company including Stock Option and Long Term Cash Plans, shall be
determined in accordance with Company procedures and plan
documents. Notwithstanding the preceding sentence, if the Employee
accepts employment with any not-for-profit Entity (defined as an
entity that is exempt or in the process of obtaining exemption from
federal taxation under Section 50l(c)(3) of the Internal
Revenue Code), then the Employee shall be entitled to remain on the
payroll of the Company and receive the payments as provided
above.
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I. Unless
specifically requested by the Company, the Employee will not be
expected to attend any management meetings, trade shows,
conferences, or other similar events or activities, and will not be
reimbursed for the costs of such activities during the Advisory
Period.
J. The
Employee’s election of the Retirement Option as outlined
herein shall be irrevocable.
K. The
Employee shall, in partial consideration for the payments to be
made pursuant to Employee’s election of the Retirement
Option, execute and deliver to the Company a release as described
in Section 6(b).
6. Termination by
Company .
(a)
For Cause . Provided that notice of termination has not
previously been given under any other Section hereof, the Company
shall have the right to terminate Employee’s employment for
cause upon written notice to Employee at any time. In such event,
Employee’s employment with the Company shall terminate
immediately and Employee shall be entitled to receive (i) any
earned and unpaid annual salary accrued through the date of such
termination, and (ii) subject to the terms thereof, any
benefits which may be due to Employee under the provisions of any
Benefit Plan and Incentive Plan. Employee hereby disclaims any
right to receive a pro rata portion of his or her Annual Bonus with
respect to the year in which such termination occurs. For purposes
hereof, “cause” shall mean that Employee (x) has
materially breached this Agreement resulting in material financial
loss or substantial embarrassment to the Company and, after having
been given written notice thereof by the Company, Employee has
failed to correct such breach within 30 days after receipt of
such notice, or (y) has been convicted
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of, or
has pleaded nolo contendere to, a felony, whether or not related to
the affairs of the Company, and whether or not any right to appeal
has been exercised.
(b).
Other . Provided that notice of termination has not
previously been given under any other Section hereof, the Company
shall have the right at any time to terminate Employee’s
employment under this Agreement without cause, by giving written
notice thereof to Employee.
(i) If
such notice is given to Employee within three years following the
occurrence of a Change in Control, Employee shall be entitled to
receive, subject to the terms thereof, all benefits which may be
due to Employee under the provisions of any Benefit Plan and
Incentive Plan and all other payments and benefits in the amounts
and upon the terms and conditions provided in
Sections 5(b)(ii)(u), (v), (w), (x), (y) and (z).
(ii) If
such notice is so given to Employee prior to the occurrence of a
Change in Control, or more than three years following a Change in
Control, Employee shall be entitled to receive, subject to the
terms thereof, all benefits which may be due to Employee under the
provisions of any Benefit Plan and Incentive Plan, and to elect,
within 30 days after receiving such notice, either (A) to
receive an amount equal to the payment provided in
Section 5(b)(ii)(u) or (B) be placed on a leave of
absence (the “Leave”) as an inactive employee of the
Company for a period (as determined by Employee) of up to three
years following the date notice of termination is given by the
Company pursuant to this Section 6(b), in which case Employee
shall be relieved of his or her management position with the
Company and his or her duties hereunder, and shall continue to
receive both annual salary at an annual rate equal to his or her
annual rate in effect immediately prior to his or her termination
of employment and Annual Bonuses in respect of each of such three
calendar years (in each case payable in accordance with the
regular
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practices of the Company), each such bonus to be in an amount equal
to the greater of (xx) the average of the two most recent full
year Annual Bonuses earned by the Employee immediately prior to his
or her termination of employment and (yy) Employee’s
then applicable Target Bonus amount; provided ,
however , that if Employee accepts full time employment with
any other person or corporation, partnership, trust, government or
other entity (“Entity”) during such three-year period
or notifies the Company in writing of his or her intention to
terminate his or her employment during such period, Employee shall
cease to be an employee of the Company effective upon the
commencement of such employment, or the effective date of such
termination as specified by Employee in such notice, and shall be
entitled to receive, subject to the terms thereof, all benefits due
to Employee under the provisions of any Benefit Plan and Incentive
Plan and a lump sum cash payment for the balance of the salary and
bonuses Employee would have been entitled to receive pursuant to
this Section 6(b)(ii)(B) had Employee remained on the
Company’s payroll until the end of the three-year period;
provided further , however , that Employee
shall not be entitled to receive such lump sum cash payment if he
or she accepts full-time employment with any subsidiary or
Affiliate of the Company. For purposes of this Agreement, the term
“Affiliate” shall mean any Entity which, directly or
indirectly, controls, is controlled by, is under the control of, or
is under common control with, the Company.
For the period beginning when
Employee receives such notice of termination from the Company, and
ending one year thereafter, Employee will, without charge to
Employee, have use of reasonable office space and facilities as
designated by the Company, together with reasonable secretarial
services in each case appropriate to an employee of
Employee’s position and responsibilities prior to such
termination of employment. Employee will continue to be eligible to
participate in the Company’s Benefit Plans and to receive,
subject to the terms thereof, all
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benefits
which are received by other employees at Employee’s level
thereunder; however, except as otherwise provided herein, Employee
will not be entitled to any awards or grants under any Incentive
Plan, and Employee shall not be entitled to a Company-provided
vehicle. Employee shall return any Company provided vehicle to the
Company within 30 days of the date of the Company’s
Notice of Termination of Employee.
If Employee leaves the payroll of the
Company within one year after notice of termination is given to
Employee under this Section 6(b), any aggregate lump sum
payment due to Employee in accordance with Section 6(b)(ii)(B)
shall be paid in two installments as follows: 75% of such amount
shall be paid at the time Employee leaves the Company’s
payroll, and the remaining 25% shall be paid to Employee on the
date which is one year after such notice of termination has been
given.
In the event that Employee’s
employment is terminated, then, in partial consideration for the
Company’s obligation to make the payments described in this
Section 6(b), Employee shall execute and deliver to the
Company a Release containing language similar to the form as set
forth in Exhibit C. The Company shall deliver such Release to
Employee within a reasonable period of time after Employee has made
the election provided for in this Section 6(b). If Employee
shall fail to execute and deliver to the Company such Release with
30 days of Employee’s receipt thereof from the Company,
Employee’s employment with the Company shall terminate
effective at the end of such 30-day period and Employee shall
receive, in lieu of the severance arrangements described in Section
6(b)(ii), a lump sum cash payment in an amount determined in
accordance with the personnel policies of the Company then
applicable.
7. Death Benefit; Life
Insurance; Disability . Provided that the term of employment
has not been earlier terminated hereunder, upon the death of the
Employee, this Agreement and
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all
benefits hereunder shall terminate (except as otherwise provided in
any benefit, savings, incentive or other plan or program of the
Company), except that the Employee’s estate (or a designated
beneficiary thereof) shall be entitled to receive: 1) If Company
paid Life Insurance above $50,000 has been waived, Company paid
Life Insurance of $50,000 (and Employee will be entitled to his/her
Group Universal Life Insurance death benefit from the insurance
company if any has been elected); or, 2) Company paid Life
Insurance equal to three years’ of Employee’s Base
Salary plus bonus compensation based on the greater of (a) the
average of the regular Annual Bonus amounts (excluding the amount
of any special or spot bonuses) received by the Employee from the
Company for the most recent two years, times 3, or (b) the
Employee’s then applicable Target Bonus amount multiplied by
3.
Further, during the period the
Employee is receiving periodic payments under Section 6(b)(ii)(B),
the Employee will be provided with the Life Insurance benefit
available prior to termination. If the Employee elected premium
reimbursement from the Company in lieu of Company-paid group term
life insurance, the payments in effect prior to the date notice of
termination is given will be continued through the end of the
salary continuation period. If the Employee did not elect premium
reimbursement from the Company, group term life insurance equal to
the amount provided prior to the date notice of termination is
given will be continued through the end of the salary continuation
period.
(b)
Disability . Provided that notice of termination has not
previously been given under any Section hereof, if Employee becomes
ill or is injured or disabled during the term of this Agreement
such that Employee fails to perform all or substantially all the
duties to be rendered hereunder and such failure continues for a
period in excess of 26 consecutive weeks (a
“Disability”), the Company may terminate the employment
of Employee under this Agreement
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upon
written notice to Employee at any time and thereupon Employee shall
be entitled to receive (i) any earned and unpaid annual salary
accrued through the date of such termination, (ii) subject to the
terms thereof, any benefits which may be due to Employee under the
provisions of any Benefit Plan and Incentive Plan, and (iii) a
lump sum cash payment equal to three times Employee’s then
current annual salary and then applicable Target Bonus
amount.
8. Stock Options and Other
Incentive Awards . Upon Employee’s termination of
employment with the Company for any reason, Employee’s rights
to benefits and payments under any stock options, restricted shares
or other Incentive Plans shall be determined in accordance with the
terms and provisions of such Plans and any agreements under which
such stock options, restricted shares or other awards were granted.
Subject to the terms of such Plans, in the event of a termination
of this Agreement pursuant to the terms hereof, Employee shall
continue to be an employee of the Company for purposes of any stock
option and restricted shares agreements and any other Incentive
Plan awards until such time as Employee shall leave the payroll of
the Company.
9. Change in Control .
For purposes of this Agreement, a “Change in Control”
of TWI shall be deemed to have occurred in the event (i) the
Board of Directors of TWI (the “Board”) (or, if
approval of the Board is not required as a matter of law, the
stockholders of TWI) shall approve (a) any consolidation or
merger of TWI in which TWI is not the continuing or surviving
corporation or pursuant to which shares of Common Stock of TWI
(“Common Stock”) would be converted into cash,
securities or other property (other than a merger of TWI in which
the holders of Common Stock immediately prior to the merger have
the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, such as, for example, a
merger effected solely in order to change the state of
19
incorporation of TWI), or (b) any sale, lease, exchange, or
other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of TWI’s assets,
or (c) the adoption of any plan or proposal for the
liquidation or dissolution of TWI, or (ii) any person (as such
term is defined in Sections 13(d)(3) and 14(d)(2), of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) or Entity (other than TWI or any benefit plan
sponsored by TWI or any subsidiary) (a) shall purchase any of
TWI’s Common Stock (or securities convertible into
TWI’s Common Stock) for cash, securities or any other
consideration pursuant to a tender offer or exchange offer, without
the prior consent of the Board, or (b) shall become the
“beneficial owner” (as such term is defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of TWI representing 20% or more of the combined voting
power of TWI’s then outstanding securities ordinarily (and
apart from rights accruing under special circumstances) having the
right to vote in the election of directors (calculated as provided
in paragraph (d) of such Rule 13d-3 in the case of rights
to acquire TWI’s securities), or (iii) during any period
of two consecutive years, individuals who at the beginning of such
period constitute the entire Board shall cease for any reason to
constitute a majority thereof unless the election, or the
nomination for election by TWI’s stockholders, of each new
direc
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