SEPARATION AGREEMENT AND RELEASE FOR GRIER C. RACLIN
Exhibit
99.1
FOR
XXXXX X. XXXXXX
This
Separation Agreement and Release (this “Agreement”) is entered into between
Charter Communications, Inc. (the “Company” or “Charter”) and me, Xxxxx X.
Xxxxxx, as a condition to my receiving payments pursuant to my Amended and
Restated Employment Agreement with Charter dated August 1, 2007, as amended (as
amended, the “Employment Agreement”), in connection with the termination of my
employment with Charter as of December 15, 2009 (the “Termination
Date”). The Company and I hereby agree as follows:
(a) Payments And Benefits
Payable Per The Employment Agreement: Provided I am not
terminated for breach of the terms of this Agreement or of my Employment
Agreement prior thereto, I shall remain employed by Charter pursuant to the
terms of my Employment Agreement through the Termination Date, I shall receive
salary at my current annual rate of $486,757.89 in bi-weekly installments as
such installments are normally paid to senior executives (with all salary
installments due but not paid prior to my execution of this Agreement to be paid
on the first payday after all conditions in Section 15(g) of the Employment
Agreement are satisfied); I shall continue to receive all benefits, without
interruption, including, without limitation, health insurance; and I shall
continue to participate in all medical and child-care flex spending accounts I
have previously selected, all through the Termination Date. I may
elect COBRA, if I choose to participate, and this Agreement does not constitute
my election for COBRA. As of December 15, 2009, I will cease to make
contributions to the Charter PAC. In addition, in exchange for my
execution and delivery of this Agreement, specifically including the
effectiveness of the release set forth in section “b” hereof (and the failure to
revoke same within seven (7) days after I sign and deliver it), the Company will
provide me with the following payments and benefits as set forth herein in
satisfaction of the requirements of Section 15(b) of the Employment
Agreement and any other claim I may hold against Charter or its
employees:
(i) An
amount equal to two times (a) my current base salary, calculated at the current
annual rate of $486,757.89 per annum, and (b) my annual target bonus of
$365,068.42, payable in equal installments bi-weekly from the date my employment
is terminated through December 15, 2011 (the “Separation Term); provided that, the
total of such payments shall be but shall not exceed, in the aggregate, the
gross amount of $1,703,652.62; provided further
that, without conceding the applicability of Section 409A of the Internal
Revenue Code of 1986 (the “Code”), in order to avoid any tax consequences of
Section 409A, the first payment, totaling $425,913.15 for severance due
prior to that date which amount shall be in addition to the payments due under
Paragraphs (a)(iii), (a)(iv) and (a)(vi) hereof, shall be made to me on June 16,
2010 for the period (the “Initial Payment Period”) beginning on December 16,
2009 and ending on the six (6) month anniversary of the date I have a separation
from service for purposes of Code Section 409A;
(ii) To
the extent not previously paid, a lump sum bonus payment for the period from
January 1, 2009 through June 30, 2009 in the amount of $182,534, under the terms
of the 2009 Executive Bonus Plan;
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(iii) A
lump sum payment (net after deduction of taxes and other required withholdings)
equal to $16,702.56 (or twenty-four (24) times the monthly cost, at the
time my employment is terminated) for me to receive, at my option under COBRA,
the paid coverage for health, dental and vision benefits then being provided for
me and my family at the Company’s cost at the time my employment is
terminated. This amount will be paid to me on June 16, 2010, and such
payment will not take into account future increases in costs during the
applicable time period;
(iv) To
the extent authorized and permitted by the terms of the applicable plan, any
performance cash or restricted cash awards shall continue to vest and be paid,
with the first such payment to be paid on June 16, 2010 and the remaining
payment to be paid as called for under such applicable plan for and during the
Separation Term, in accordance with the schedule attached hereto as Schedule
A;
(v) The
Company will provide, at its expense, the full cost of executive-level
out-placement services. These services will continue through July 31,
2010; and
(vi) A
cash payout of $37,441.60 for any remaining hours of accrued and unused vacation
calculated as of December 15, 2009 at my rate of base salary in effect as of
December 15, 2009, to be paid on June 16, 2010.
These
payments and benefits will be paid and/or provided as and when called for by the
Employment Agreement, unless otherwise provided in this Agreement, after all
conditions to the effectiveness of this Agreement and the releases called for by
this Agreement have been satisfied. The right to retain the same
shall be subject to compliance with this Agreement and the terms of the
Employment Agreement. In the event I die before all payments and
amounts due to me hereunder are paid, any remaining payments will be made to my
spouse, if she survives me and, if not, then to my estate.
I
acknowledge I have received full payment under the Company's Executive Cash
Award Plan ("ECAP") and the Company hereby waives any, and acknowledges that
there is no applicable repayment provision pursuant to the payment agreement
which I executed to receive the payments under the ECAP. I also
acknowledge I have received full payment of my RVP Bonus and am not entitled to
any further payments under the Company's Value Creation Plan and the Company
acknowledges that there is no repayment provision with respect to the RVP
Bonus.
Complete
Release: I hereby understand and agree to the termination of
all offices, directorships, manager positions and other similar offices I hold
with Charter or any of its subsidiaries or related or affiliated corporations,
limited liability companies and partnerships and all employment by Charter
effective the close of business on December 15, 2009. In
consideration for the payments I am to receive hereunder, I unconditionally and
irrevocably release, waive and give up any and all known and unknown claims,
lawsuits and causes of action, if any, that I now may have or hold against
Charter, its current and former parents, plans, subsidiaries, and related or
affiliated corporations, ventures, limited liability companies and partnerships,
and their respective current and former employees, directors, fiduciaries,
administrators, insurers, members, managers, partners, and agents and related
parties, in any way arising out of, in connection with or based upon
(i) any event or fact that has occurred prior to the date I sign this
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Agreement,
(ii) my employment with Charter and/or any of its subsidiaries or
affiliates to date and any event or occurrence occurring during such employment,
(iii) the termination of my employment, (iv) any breach of the
Employment Agreement, (v) any claim to payment under or from the ECAP or
for salary, bonus, stock options or restricted shares, or performance or
restricted cash awards, other than as specifically granted pursuant to this
Agreement; or (vi) any decision, promise, agreement, statement, policy,
practice, act or conduct prior to this date of or by any person or entity I am
releasing, and from any claims, lawsuits. I understand that this means that,
subject to the limitations described below, I am releasing Charter and such
other persons and entities from, and may not bring claims against any of them
under (a) Title VII of the Civil Rights Act of 1964 or Sections 1981
and 1983 of the Civil Rights Act of 1866, which prohibit discrimination based on
race, color, national origin, ancestry, religion, or sex; (b) the Age
Discrimination in Employment Act, which prohibits discrimination based on age;
(c) the Equal Pay Act, which prohibits paying men and women unequal pay for
equal work; (d) the Americans with Disabilities Act and Sections 503
and 504 of the Rehabilitation Act of 1973, which prohibit discrimination based
on disability; (e) the WARN Act, which requires that advance notice be
given of certain workforce reductions; (f) the Missouri Human Rights Act,
chapter 213, R.S. Mo., which prohibits discrimination in employment, including
but not limited to discrimination and retaliation based on race, gender,
national origin, religion, age and disability; (g) the Employee Retirement
Income Security Act, which among other things, protects employee benefits;
(h) the Family and Medical Leave Act of 1993, which requires employers to
provide leaves of absence under certain circumstances; (i) the
Xxxxxxxx-Xxxxx Act of 2002, which, among other things, provides Whistleblower
protection; (j) any federal or state law, regulation, decision, or
executive order prohibiting discrimination or retaliation or for breach of
contract; (k) any of the laws of the State of Missouri or any political
subdivision of such State; (l) any law prohibiting retaliation based on
exercise of my rights under any law, providing whistleblowers protection,
providing workers’ compensation benefits, protecting union activity, mandating
leaves of absence, prohibiting discrimination based on veteran status or
military service, restricting an employer’s right to terminate employees or
otherwise regulating employment, enforcing express or implied employment
contracts, requiring an employer to deal with employees fairly or in good faith,
providing recourse for alleged wrongful discharge, tort, physical or personal
injury, emotional distress, fraud, negligent or other misrepresentation,
defamation, and similar or related claims, and any other law relating to salary,
commission, compensation, benefits, and other matters. I specifically
represent and agree that I have not been treated adversely on account of age,
gender or other legally protected classification, nor have I otherwise been
treated wrongfully in connection with my employment with the Company and/or any
of its subsidiaries or affiliates and that I have no basis for a claim under the
Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964,
or any applicable law prohibiting employment or other discrimination or
retaliation. I acknowledge that the Company relied on the
representations and promises in this Agreement in agreeing to pay me the
benefits described in subsection (a). I understand that I am
releasing claims for events that have occurred prior to my signing this
Agreement that I may not know about. This release does not include
claims arising after the date I sign this Agreement, any claim under a stock
option plan or award agreement, incentive stock plan, or the restricted stock
award agreement based upon my service to and ending the date my employment
terminates, any claim under a group health insurance plan in which I participate
for claims accrued as of the date my employment terminated, a breach of the
provisions of this Agreement (including but not limited to a breach of
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any
obligation to provide me with the payments and benefits called for by
Sections 15 (b) of the Employment Agreement, as specified in paragraph
(a) above) and any pending claims for workers compensation that have
already been filed or for on-the-job injuries that have already been reported,
or any claim for indemnification by Charter for actions taken by me within the
course and scope of my employment to the degree such actions are subject to
indemnification under Charter’s policies and practices.
Charter
hereby states and acknowledges that, to the best current knowledge of its Chief
Executive Officer, Chief Operating Officer and General Counsel, Charter has no
claim against me for breach of my employment agreement or other claim of
material liability.
(b) Promise Not to File
Claims: I promise never to file, prosecute or pursue any
lawsuit based on a claim purportedly released by this Agreement, or (absent
court order) to assist others in filing or prosecuting similar claims against
Charter. I understand and agree that nothing in this Agreement
precludes me from filing a charge of discrimination under applicable federal or
state law, although I have personally released such claims with regard to
matters and facts occurring prior to this date. I specifically
acknowledge and agree that I am not entitled to severance or any other benefits
under the Charter Communications Special One-Time Severance Plan or other
severance plan or contract, or to any payments following termination of my
employment under or by reason of the Employment Agreement (other than the
payments and benefits called for by Sections 15(b) of the Employment
Agreement, as specified in paragraph (a) above), and that the payments and
benefits described in this Agreement are in lieu of any severance or other
benefits to which I may be entitled under such plan or any other policy,
program, plan or agreement and satisfy and are in lieu of any payments to which
I may be entitled under the Employment Agreement or any other such plan, policy,
program or arrangement, and I specifically waive any rights I may have under
that plan and any such agreement, if any.
(c) Non-admission of
Liability: This Agreement is not an admission of fault,
liability or wrongdoing by me or any released party, and should not be
interpreted or construed as such I understand that all released parties
specifically deny engaging in any liability or wrongdoing.
(d) Non-Disparagement: Neither
Charter nor I will make any statement or announcement concerning my performance
at, employment with, or departure from Charter except as may be reviewed and
approved by the other party in advance; provided that, both
Charter and I may inform third parties that my employment will terminate or was
terminated (as the case may be) through mutual agreement on December 15,
2009. During the balance of and subsequent to my employment with
Charter and/or any of its subsidiaries or affiliates, I agree not to criticize,
denigrate, disparage, or make any derogatory statements about the Company
(including any subsidiaries, or affiliates), its business plans, policies and
practices, or about any of its officers, employees or former officers or
employees, to customers, competitors, suppliers, employees, former employees,
members of the public (including but not limited to in any internet publication,
posting, message board or weblog), members of the media, or any other person,
nor shall I take any action reasonably expected to harm or in any way adversely
affect the reputation and goodwill of the Company. During the balance
of and subsequent to my employment with Charter and/or any of its subsidiaries
or affiliates, Charter agrees, for itself, its directors and executive employees
not to criticize, denigrate, disparage, or make any derogatory statements
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about me
or my performance at or employment with Charter to customers, competitors,
suppliers, employees, former employees, potential employers, members of the
public (including but not limited to in any Internet publication, posting,
message board or weblog), members of the media, or any other person, nor shall
Charter, its directors, employees, or agents, take any action reasonably
expected to harm or in any way adversely affect my
reputation. Nothing in this paragraph shall prevent anyone from
giving truthful testimony or information to law enforcement entities,
administrative agencies or courts or in any other legal proceedings as required
by law, including, but not limited to, assisting in an investigation or
proceeding brought by any governmental or regulatory body or official related to
alleged violations of any law relating to fraud or any rule or regulation of the
Securities and Exchange Commission.
(e) Future
Cooperation: I agree, at no cost to myself, to make myself
reasonably available by telephone, e-mail or in person to meet and speak with
representatives of Charter regarding events, omissions or other matters
occurring during my employment with Charter of which I have personal knowledge
or involvement that give rise or may give rise to a legal claim against
Charter. I, at no out-of-pocket cost to myself, also shall reasonably
cooperate with Charter in the defense of such claims, provided that, the
requirement for such cooperation with Charter shall terminate seven years from
the date of the identification of any such claim or claims. To the
fullest extent possible, Charter shall schedule any telephone conferences or
meetings with me for places near my residence and at times outside my normal
work schedule and shall take all other reasonable measures to ensure that my
schedule is disrupted to the least extent possible. To the fullest
extent possible, Charter will seek to avoid having me travel to locations
outside the metropolitan area within which I reside. If the Company
requires me to travel outside the metropolitan area in the United States where I
then reside to provide any testimony or otherwise provide any such assistance,
then Charter will reimburse me for any reasonable, ordinary and necessary travel
and lodging expenses incurred by me to do so, provided I submit all
documentation required under Charter’s standard travel expense reimbursement
policies and as otherwise may be required to satisfy any requirements under
applicable tax laws for Charter to deduct those expenses. I shall
respond to requests by Charter for nominal assistance (such as occasional
requests for factual recollections) at no charge but shall be compensated for my
time and assistance providing more than nominal amounts of historical factual
information or testimony at the rate of $100 per hour; provided, that any legal
services beyond such nominal assistance or provision of historical factual
information or testimony I am requested to provide to Charter in the future
shall be paid for at whatever rate is agreed by the parties at the
time. Nothing in this Agreement shall be construed or interpreted as
requiring me to provide any testimony, sworn statement or declaration that is
not complete and truthful.
(f) Confidential and Proprietary
Information; Covenant Not To Compete: I reaffirm my
obligations under and agree to remain bound by and to comply with the provisions
of Sections 17, 18 and 19 of my Employment Agreement with Charter, and
agree those provisions continue to apply to me, notwithstanding the termination
of my employment, the reason for termination of employment, or any act, promise,
decision, fact or conduct occurring prior to this date. The
“Restricted Period” for purposes of Section 19 of my Employment Agreement
shall start for all purposes on December 16, 2009 and shall end (a) for (and
solely for) the purposes of section 19(b)(i) of the Employment Agreement, on
December 15, 2010, and (b) for (and solely for) the purposes
of section 19(b)(ii) and (iii) of the Employment Agreement, on
December 15, 2011. In addition, I reaffirm my obligations under and
agree to remain bound by and to comply
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with any
other agreement or policy relating to confidential information, invention,
non-solicitation, non-competition, or similar matters to which I am now
subject.
(g) Consideration of
Agreement: The Company advised me to take this Agreement home,
read it, and carefully consider all of its terms before signing
it. The Company gave me, and I understand that I have, 21 days in
which to consider this Agreement, sign it and return it to the
Company. I waive any right I might have to additional time within
which to consider this Agreement. I understand that I may discuss
this Agreement with an attorney, at my own expense during this period I
understand that I may revoke this Agreement within 7 days after I sign it by
advising Xxxxxxx X. Xxxxxxxx, Vice President, Associate General Counsel, and
Corporate Secretary, orally or in writing within that seven (7) day time period
of my intention to revoke this Agreement. I have carefully read this
Agreement, I fully understand what it means, and I am entering into it
voluntarily. I am receiving valuable consideration in exchange for my
execution of this Agreement that I would not otherwise be entitled to receive,
consisting of the benefits described in Paragraph (a) of this
Agreement. If I revoke my acceptance of this Agreement within such 7
day time period, or if I fail to accept this Agreement within the 21-day period,
then Charter shall have no obligations under this Agreement, including but not
limited to any obligation to pay or provide the payments specified in this
Agreement or under the Employment Agreement. I further understand
that I cannot sign this Agreement prior to December 15, 2009, or it will not be
effective.
(h) Return of
Property: I will return to the Company on or prior to the
Termination Date all files, memoranda, documents, records, credit cards, keys,
equipment (other than my Blackberry cell phone and laptop computer, although I
understand that I will no longer be provided service for such equipment after my
Termination Date (except that the Blackberry cell phone number will be
transferred or ported to me and Blackberry cell phone service will continue
until January 31, 2010 or such earlier time as I am able to transfer the phone
number for my Blackberry to a personal account; and I will reimburse the Company
for my usage during such period); , badges, vehicles, Confidential Information
(as defined in the Employment Agreement) and any other property of the Company
then in my possession or control as directed by the Company; provided that,
subject to the confidentiality requirements set forth herein and in my
Employment Agreement, I may keep copies of Company files currently residing on
my laptop computer but shall return the laptop computer and Blackberry cell
phone to the Company as soon as reasonably possible after the date hereof so
that the hard drive containing Company files and information (but not including
documents contained in the “Personal” folders residing on the computer), and all
programs allowing access to Company systems can be removed from the computer and
replaced with a hard drive containing copies of all other programs and all
documents and records (including, without limitation, the “Personal” folders
currently residing on the computer and provided further
that the Company shall provide me with Outlook Web access to the
“xxxxx.xxxxxx@xxxxxxxxxx.xxx” e-mail address until February 28,
2010. I also will reveal to the Company at the Company’s request all
access codes to any computer or other program or equipment.
(i) Choice of
Law: This Agreement was drafted in Missouri, and the Company’s
Corporate offices are in Missouri. Therefore, this Agreement
(including, without limitation, any covenants not to compete) is to be governed
by and interpreted according to the internal laws of the State of
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Missouri
without reference to conflicts of law principles, and this Agreement shall be
deemed to have been accepted and entered into in the State of
Missouri.
(j) Amendment,
Miscellaneous: Neither this Agreement nor any of its terms may
be amended, changed, waived or added to except in a writing signed by both
parties. The Company has made no representations or promises to me to
sign this Agreement, other than those in or referred to by this
Agreement. If any provision in this Agreement is found to be
unenforceable, all other provisions will remain fully enforceable.
This
Agreement was originally presented to me on December 11, 2009. I have
been advised to read it and carefully consider all of its provisions before
signing it. I will have 21 days in which to consider it, sign it and
return it to Xxxx Xxxxxxxx. To accept this Agreement, I understand
that it must be signed and returned to Xxxx Xxxxxxxx on or after December 15,
2009.
THIS
AGREEMENT AND RELEASE IS NOT VALID IF EXECUTED PRIOR TO DECEMBER 15,
2009.
I have
carefully read this Agreement, I fully understand what it means, and I am
entering into it voluntarily.
Presented
By:
Name:
______________________________
Date
Delivered: December 11, 2009
Employee:
Signature: /s/ Xxxxx X.
Xxxxxx
Date
Signed: December 19,
2009
Printed
Name: Xxxxx X. Xxxxxx
Company:
Signature:
/s/ Xxxxxxx X.
Xxxxxx
Date
Signed: December 21,
2009
Printed
Name: Xxxxxxx X. Xxxxxx
EVP & COO
Please Return
to:
Xxxxxxx
X. Xxxxxxxx
Vice
President, Associate General Counsel and Corporate Secretary
Charter
Communications, Inc.
00000
Xxxxxxxxxxx Xxxxx
Xx.
Xxxxx, XX 00000
000-000-0000
(Telephone)
000-000-0000
(Facsimile)
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Schedule A for Xxxxx Xxxxxx
Separation Agreement and Release
|
Performance Bank
|
||||
|
3/18/2008
Original
Grant
|
$ | 300,000 | ||
|
Performance
Attainment Adjustment
Applied
|
83.4 | % | ||
|
Deposit
to Performance
Bank
|
$ | 250,200 | ||
|
Payout
– 1/3rd
of Performance Bank
Balance
|
$ | (83,392 | ) | |
|
Performance
Bank Net Balance
|
$ | 166,808 | ||
|
Interest
Adjustment – Unknown
|
$ | |||
|
(The
2008 grant will be adjusted by a 2009 interest adjustment)
|
||||
|
Performance
Bank Balance after 2009 Interest
adjustment
|
$ | 166,808 | * | |
|
March
2010 Payout – 1/3rd of Performance Bank
Balance
|
$ | 55,597 | * | |
|
March
2011 Payout – 1/3rd of Performance Bank Balance
|
$ | 37,070 | * | |
| 2009 LTIP Actions – Xxxxx Xxxxxx did not receive a 2009 Performance Cash or Restricted Cash Grant | ||||
*Amounts
are estimated based on performance bank balance at December 11, 2009; to be
adjusted by 2009 interest adjustment in 2010.
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