exhibit10_9.htm


    Exhibit
10.9

     

    
      SECOND AMENDMENT TO AMENDED
AND RESTATED EMPLOYMENT AGREEMENT

       

      THIS
SECOND AMENDMENT (“Amendment”) is dated
November __, 2009, and is entered into between Charter Communications, Inc., a
Delaware corporation (the “Company”) and Marwan
Fawaz (“Executive”).  Capitalized
terms used but not defined herein have the meanings ascribed to such terms in
the Agreement (defined below).

       

      WHEREAS,
Executive and the Company entered into an amended and restated employment
agreement dated as of August 1, 2007 (the “Agreement”), pursuant
to which Executive continued to serve as Executive Vice President and Chief
Technical Officer of the Company.

       

      WHEREAS,
the Company and Executive desire to amend the Agreement as provided in this
Amendment and agree that all other terms and conditions of the Agreement shall
otherwise remain in place, except as expressly amended herein.

       

      NOW
THEREFORE, for and in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties to this Amendment hereby agree as
follows:

       

      I. Amendments to
Agreement.  The parties hereby agree to amend the Agreement as
follows:

       

      A. Section
1(f) of the Agreement shall be deleted in its entirety and replaced with the
following:

       

      ““Change
in Control” shall mean the occurrence of any of the following
events:

       

      (i)           
an acquisition of any voting securities of the Company by any “Person” or
“Group” (as those terms are used for purposes of Section 13(d) or 14(d) of the
Exchange Act of 1934, amended (the “Exchange Act”)), immediately after which
such Person has “Beneficial Ownership” (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of thirty-five percent (35%) or more of the
combined voting power of the Company’s then outstanding voting securities;
provided, however, that voting securities which are acquired in a “Non-Control
Transaction” (as hereinafter defined) assuming that the acquisition of voting
securities for this purpose qualifies as Merger (as hereinafter defined) shall
not constitute a Change in Control; and provided further that an acquisition of
Beneficial Ownership of less than fifty percent (50%) of the Company’s then
outstanding voting securities by any Equity Backstop Party (as defined in the
Joint Plan) or the Allen Entities (as defined in the Joint Plan) shall not be
considered to be a Change in Control under this clause (i);

       

      (ii)           the
individuals who, as of immediately after the effective date of the Company’s
Chapter 11 plan of reorganization (the “Emergence Date”), are members


       

      
        
          
          

        

        
          
          

          
            

          

        

        
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        of the
Board (the “Incumbent Board”), cease for any reason to constitute a majority of
the Board; provided, however, that if the election, or nomination for election
by the Company’s common stockholders, of any new director (excluding any
director whose nomination or election to the Board is the result of any actual
or threatened proxy contest or settlement thereof) was approved by a vote of at
least two-thirds of the Incumbent Board, such new director shall, for purposes
of this Agreement, be considered as a member of the Incumbent
Board;

      

       

      (iii)           the
consummation of a merger, consolidation or reorganization with or into the
Company or in which securities of the Company are issued (a “Merger”), unless
such Merger is a Non-Control Transaction. A “Non-Control Transaction” shall mean
a Merger where: (1) the stockholders of the Company, immediately before such
Merger own directly or indirectly immediately following such Merger more than
fifty percent (50%) of the combined voting power of the outstanding voting
securities of the entity resulting from such Merger or its controlling parent
entity (the “Surviving Entity”), (2) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such Merger constitute at least a majority of the members of the board of
directors (or similar governing body) of the Surviving Entity, and (3) no Person
other (X) than the Company, its subsidiaries or affiliates or any of their
respective employee benefit plans (or any trust forming a part thereof) that,
immediately prior to such Merger was maintained by the Company or any subsidiary
or affiliate of the Company, or (Y) any Person who, immediately prior to such
Merger had Beneficial Ownership of thirty-five percent (35%) or more of the then
outstanding voting securities of the Company, has Beneficial Ownership of
thirty-five percent (35%) or more of the combined voting power of the
outstanding voting securities or common stock of the Surviving Entity; provided
that this clause (Y) shall not trigger a Change in Control solely because, after
such Merger, any Equity Backstop Party or any Allen Entity has Beneficial
Ownership of more than thirty-five percent (35%) but less than fifty percent
(50%) of the combined voting power of the outstanding voting securities or
common stock of the Surviving Entity;

       

      (iv)           complete
liquidation or dissolution of the Company (other than where assets of the
Company are transferred to or remain with subsidiaries of the Company);
or

       

      (v)           the
sale or other disposition of all or substantially all of the assets of the
Company and its direct and indirect subsidiaries on a consolidated basis,
directly or indirectly, to any Person (other than a transfer to a subsidiary or
affiliate of the Company unless, such sale or disposition constitutes a
Non-Control Transaction with the disposition of assets being regarded as a
Merger for this purpose or the distribution to the Company’s stockholders of the
stock of a subsidiary or affiliate of the Company or any other
assets).

       

      Notwithstanding
the foregoing a Change in Control shall not occur solely based on a filing of a
Chapter 11 reorganization proceeding of the Company or the implementation of the
Joint Plan.”

       

      
        
          
          

        

        
          
          

          
            

          

        

        
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      B. Section
1(h) of the Agreement shall be amended by adding the following to the end
thereof:

      “or any successor to the functions
thereof.”

      


      C. Section
1(j) of the Agreement shall be deleted in its entirety and replaced with the
following:

       

      ““Company
Stock” shall mean the common stock of the Company issued in connection with the
Company’s emergence from its Chapter 11 reorganization proceeding in process on
April [  ], 2009 and any stock received in exchange
therefor.”

      


      D. The
definition of “Plan” in Section 1(s) of the Agreement shall be deleted in its
entirety and replaced with the following:

       

      ““Plan”
shall mean the 2009 Stock Incentive Plan as amended by the Company from time to
time.”

      


      E. Section 1
of the Agreement shall be amended by adding Section 1(v) reflecting the
following:

       

      “”Joint
Plan” means the joint plan of reorganization of the Company, Charter Investment,
Inc. and the Company’s direct and indirect subsidiaries filed pursuant to
chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532s,
on March 27, 2009.”

       

      F. Section 7
of the Agreement shall be deleted in its entirety and replaced with the
following:

       

      “Stock
Options. The Committee may, in its discretion, grant to Executive 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.”

       

      G. Section 8
of the Agreement shall be deleted in its entirety and replaced with the
following:

       

      “Restricted
Shares. The Committee may, in its discretion, grant to Executive
restricted shares of Company Stock (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.”

       

      H. Section 9
of the Agreement shall be deleted in its entirety and replaced with the
following:

       

      “Performance
Share Units.  The Committee may, in its discretion, grant to
Executive restricted stock units subject to performance vesting conditions


       

      
        
          
          

        

        
          
          

          
            

          

        

        
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        (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.”

      

      


       

      I. Section
14(iv) of the Agreement shall be amended by adding to the end of  the
section the following:

       

      “Notwithstanding
the foregoing Good Reason shall not occur solely based on a filing of a Chapter
11 reorganization proceeding of the Company or the implementation of the Joint
Plan.  For the avoidance of doubt, contingent on the Restructuring
Value Plan becoming effective as set forth in the Joint Plan, no long-term
incentive award shall be granted to Executive in respect of 2009.”

       

      II. Acknowledgments.

       

      A. Notwithstanding
any provision of the Agreement or the Amendment to the contrary, Executive
acknowledges that he does not have any right to terminate his employment
pursuant to the Employment Agreement for Good Reason or on account of any claim
that the Company breached the Agreement, including any right to collect
severance in connection therewith, arising out of or in connection with any
fact, event, occurrence, omission or other matter or thing occurring prior to
the date of this Amendment, including, without limitation, any fact, event,
occurrence, omission or other matter or thing relating to the implementation of
the Joint Plan or its completion.

       

      B. Executive
acknowledges that he has reviewed the provisions of this Amendment and
considered the effect of these provisions on the Agreement, has had adequate
opportunity to consult with counsel with respect to these provisions and fully
and freely consents to the terms of this Amendment.

       

      III. Miscellaneous.

       

      A. This
Amendment may be executed in counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.

       

      B. Except as
provided herein, the provisions of the Agreement are and shall remain in full
force and effect.

       

      C. This
Amendment shall become effective as of the Emergence Date.

       

      [Remainder
of Page Intentionally Left Blank]

       

      
        [Signature
Page to Follow]

      

       

      
        
          
          

        

        
          
          

          
            

          

        

        
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      IN
WITNESS WHEREOF, the Company has caused this Amendment to be executed by a duly
authorized officer of the Company, and Executive has executed this Amendment,
each as of the day and year first above written.

       

      EXECUTIVE

       

      


      ________________________________

      Name:
Marwan Fawaz

       

      


       

      CHARTER
COMMUNICATIONS, INC.

      


      


      ________________________________

      By: Neil
Smit

      Title:
President & Chief Executive Officer