Form of 2018 Time-Based Phantom Units Award Agreement of Fred A. Graffam III under the Monitronics International, Inc. 2017 Cash Incentive Plan
EX-10.4 4 acg10q2019q1ex104.htm EXHIBIT 10.4 Exhibit
MONITRONICS INTERNATIONAL, INC.
2017 CASH INCENTIVE PLAN
2018 TIME-BASED PHANTOM UNITS AWARD AGREEMENT
THIS TIME-BASED PHANTOM UNITS AWARD AGREEMENT (this “Agreement”) is made as of March 29, 2018 (the “Grant Date”), by Fred Graffam and between MONITRONICS INTERNATIONAL, INC., a Texas corporation (the “Company”), and the person signing as “Grantee” on the signature page hereof (the “Grantee”).
The Company has adopted the Monitronics International, Inc. 2017 Cash Incentive Plan (as has been or may hereafter be amended, the “Plan”), a copy of which is attached hereto as Exhibit A and by this reference made a part hereof, for the benefit of eligible employees of the Company and its Subsidiaries. Capitalized terms used and not otherwise defined in this Agreement will have the meanings ascribed to them in the Plan.
The LTIP Committee has determined that it would be in the interest of the Company to award phantom units to the Grantee, subject to the conditions and restrictions set forth herein and in the Plan, and in order to provide the Grantee with additional remuneration for services rendered and to increase the Grantee’s personal interest in the continued success and progress of the Company and Ascent Capital.
The Company and the Grantee therefore agree as follows:
1.Definitions. The following terms, when used in this Agreement, have the following meanings:
“Cause” has the meaning specified in Section 6.2(b) of the Plan.
“Close of Business” means, on any day, 5:00 p.m., Dallas, Texas time.
“Fair Market Value” means (i) with respect to determining the value of the Phantom Units at the end of each Vesting Cycle, the five-day volume weighted average price of one share of Common Stock as reported on the consolidated transaction reporting system for the principal national securities exchange on which such shares of Common Stock are listed for the period beginning on the 16th trading day following the filing date of Ascent Capital’s annual report on Form 10-K in the relevant calendar year or (ii) with respect to determining the value of the Earned Phantom Units pursuant to Section 6 the five-day volume weighted average price of one share of Common Stock as reported on the consolidated transaction reporting system for the principal national securities exchange on which such shares of Common Stock are listed for the period beginning on the Grantee’s termination of employment. If the Fair Market Value of a share of Common Stock is not determinable by any of the foregoing means, or if no sales of shares actually occurred on such day, then the Fair Market Value shall be determined in good faith by the LTIP Committee on the basis of such quotations and other considerations as the LTIP Committee deems appropriate.
“Settlement Date” has the meaning specified in Section 4(a) of this Agreement.
“Termination With Good Reason” shall have the meaning ascribed thereto in any employment agreement between the Grantee and the Company or its Affiliate. For the avoidance of doubt, if the Grantee is not party to an employment agreement with the Company or its Affiliate or if such agreement does not provide a definition for “good reason”, then the Grantee will not be eligible for any benefits provided under this Agreement with regard to a Termination With Good Reason.
“Vesting Cycle” means each of the 2018 Vesting Cycle, 2019 Vesting Cycle and 2020 Vesting Cycle.
2.Award. Pursuant to the terms of the Plan and in consideration of the covenants and promises of the Grantee herein contained, the Company hereby awards to the Grantee as of the Grant Date, 61,142 time-based Phantom Units, each representing the right to receive a cash payment equal to the Fair Market Value of one share of Common Stock, subject to the conditions and restrictions set forth below and in the Plan (the “Phantom Units”).
Vesting; Forfeiture of Phantom Units.
(a)Subject to Section 6.4(b) of the Plan and to earlier vesting in accordance with Section 6, Phantom Units will be vested, in whole or in part, only in accordance with the conditions stated in this Section 3.
(b)Unless earlier vested pursuant to Section 6 or the Plan, the Phantom Units shall vest, in the following amounts on the following dates (each a “Vesting Date”):
one-third of the Phantom Units on the first anniversary of the Grant Date;
one-third of the Phantom Units on the second anniversary of the Grant Date; and
one-third of the Phantom Units on the third anniversary of the Grant Date;
provided, however, that the Grantee is continuously employed by the Company or any Subsidiary from the Grant Date through the Settlement Date (as defined below) for each of the above respective Vesting Dates. If the Grantee does not remain continuously employed by the Company or any Subsidiary until the Settlement Dates described below, then (except as provided in Section 4 or Section 6) all outstanding unvested Phantom Units will automatically be forfeited as of the Close of Business on such termination date and such Phantom Units and any related Dividend Equivalents will be immediately cancelled, and the Grantee will cease to have any rights with respect thereto. Notwithstanding the foregoing, if any date on which vesting would otherwise occur is a Saturday, Sunday or a holiday, such vesting will instead occur on the business day next following such date.
(c)Any Dividend Equivalents with respect to Phantom Units will become vested only to the extent that the Phantom Units related thereto shall have become vested in accordance with this Agreement.
4.Settlement of Phantom Units.
(a)The Fair Market Value of the Earned Phantom Units that vest in accordance with Section 3 and any related Dividend Equivalents shall be paid to the Grantee in a lump sum cash payment no later than fifteen (15) days following the 20th trading day following the filing date of Ascent Capital’s annual report on Form 10-K in each relevant calendar year (each such date, or the date provided pursuant to the last paragraph of Section 6, as applicable, a “Settlement Date”).
(b)In the event of Grantee’s termination without Cause or Termination With Good Reason, following a Committee Certification Date but prior to the applicable Settlement Date, then the Earned Phantom Units shall vest in accordance with Section 3 and shall be paid to the Grantee in accordance
with Section 4(a) as if the Grantee had been continuously employed by the Company or any Subsidiary from the Grant Date through the applicable Settlement Date.
5.Mandatory Withholding for Taxes. Grantee acknowledges and agrees that the Company shall deduct from the cash otherwise payable or deliverable upon each Settlement Date an amount of cash that is equal to the amount of all federal, state and local taxes required to be withheld by the Company upon such exercise, as determined by the LTIP Committee.
6.Early Termination or Vesting of Phantom Units.
Unless otherwise determined by the LTIP Committee in its sole discretion, and assuming Grantee’s achievement of the Key Performance Indicators prior to each of the following (other than with respect to Sections 6(a) and 6(b) herein), if the Grantee’s employment with the Company or any Subsidiary terminates prior to the final Settlement Date:
(a)If the Grantee dies while employed by the Company or any Subsidiary, then each Phantom Unit that has not previously vested or forfeited pursuant to Section 3 will immediately become an Earned Phantom Unit and fully vested and shall inure to the benefit of the Beneficiary named on Exhibit B hereto;
(b)If the Grantee’s employment with the Company or any Subsidiary terminates by reason of Disability, then each Phantom Unit that has not previously vested or forfeited pursuant to Section 3 will immediately become an Earned Phantom Unit and fully vested; and
(c)Subject to Section 4(b), if the Grantee’s employment with the Company or any Subsidiary is terminated for Cause, or Grantee voluntarily resigns and does not have a Termination With Good Reason, then any unvested Phantom Units will be forfeited as of the Close of Business on the date of such termination of employment.
In the event of Grantee’s termination without Cause or Termination With Good Reason prior to the final Settlement Date, then the Grantee’s rights to any unvested Phantom Units or any portion thereof may, in the discretion of the LTIP Committee, thereafter vest and any such vesting and settlement will occur in a manner designed to maintain the short term deferral exemption under Section 409A. Unless the LTIP Committee otherwise determines, a change of the Grantee’s employment from the Company to a Subsidiary or an Affiliate or from a Subsidiary to the Company, another Subsidiary or an Affiliate will not be considered a termination of the Grantee’s employment for purposes of this Agreement. The Fair Market Value of the Earned Phantom Units that vest in accordance with Section 6 and any related Dividend Equivalents shall be paid to the Grantee in a lump sum cash payment no later than fifteen (15) days following the termination of Grantee’s employment.
7.Dividend Equivalents. The Grantee will have no right to receive, or otherwise with respect to, any Dividend Equivalents until such time, if ever, as the Phantom Units with respect to which such Dividend Equivalents relate shall have become earned and vested, and, if vesting does not occur, the related Dividend Equivalents will be forfeited. Dividend Equivalents shall not bear interest or be segregated in a separate account.
8.Notice. Unless the Company notifies the Grantee in writing of a different procedure or address, any notice or other communication to the Company with respect to this Agreement will be in writing and
will be delivered personally, electronically, or sent by United States first class mail, postage prepaid and addressed as follows:
Ascent Capital Group, Inc.
5251 DTC Parkway, Suite 1000
Greenwood Village, Colorado 80111
Attn: General Counsel
With a copy, which shall not constitute notice, to:
Monitronics International, Inc.
1990 Wittington Place
Farmers Branch, Texas 75234
Attn: Chief People Officer
Any notice or other communication to the Grantee with respect to this Agreement will be in writing and will be delivered personally, electronically, or will be sent by United States first class mail, postage prepaid, to the Grantee’s address as listed in the records of the Company on the date of this Agreement, unless the Company has received written notification from the Grantee of a change of address.
9.Grantee Employment. Nothing contained in this Agreement, and no action of the Company or the LTIP Committee with respect hereto, will confer or be construed to confer on the Grantee any right to continue in the employ of the Company or any of its Subsidiaries or interfere in any way with the right of the Company or any of its Subsidiaries to terminate the Grantee’s employment at any time, with or without Cause, subject to the provisions of any employment agreement between the Grantee and the Company or any Subsidiary, as applicable.
10.Nonalienation of Benefits. Except as provided in Section 6.8 of the Plan, (a) no right or benefit under this Agreement will be subject to anticipation, alienation, sale, assignment, hypothecation, pledge, exchange, transfer, encumbrance or charge, and any attempt to anticipate, alienate, sell, assign, hypothecate, pledge, exchange, transfer, encumber or charge the same will be void, and (b) no right or benefit hereunder will in any manner be liable for or subject to the debts, contracts, liabilities or torts of the Grantee or other person entitled to such benefits.
11.Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Texas. Each party irrevocably submits to the general jurisdiction of the state and federal courts located in the State of Texas in any action to interpret or enforce this Agreement and irrevocably waives any objection to jurisdiction that such party may have based on inconvenience of forum.
12.Construction. References in this Agreement to “this Agreement” and the words “herein,” “hereof,” “hereunder” and similar terms include all Exhibits and Schedules appended hereto, including the Plan. This Agreement is entered into, and the Award evidenced hereby is granted, pursuant to the Plan and will be governed by and construed in accordance with the Plan and the administrative interpretations adopted by the LTIP Committee thereunder. All decisions of the LTIP Committee upon questions regarding the Plan or this Agreement will be conclusive. Unless otherwise expressly stated herein, in the event of any inconsistency between the terms of the Plan and this Agreement, the terms of the Plan will control. The headings of the sections of this Agreement have been included for convenience of reference only, are not to be considered a part hereof and will in no way modify or restrict any of the terms or provisions hereof.
13.Duplicate Originals. The Company and the Grantee may sign any number of copies of this Agreement. Each signed copy will be deemed to be an original, but all of them together represent the same agreement.
14.Rules by Committee. The rights of the Grantee and the obligations of the Company hereunder will be subject to such reasonable rules and regulations as the LTIP Committee may adopt from time to time hereafter.
15.Entire Agreement. This Agreement is in satisfaction of and in lieu of all prior discussions and agreements, oral or written, between the Company and the Grantee, with respect to the subject matter hereof. The Grantee and the Company hereby declare and represent that no promise or agreement not expressed herein has been made and that this Agreement contains the entire agreement between the parties hereto with respect to the Award and replaces and makes null and void any prior agreements between the Grantee and the Company regarding the Award. Subject to the restrictions set forth in Section 6.8 of the Plan, this Agreement will be binding upon and inure to the benefit of the parties and their respective heirs, successors and assigns.
16.Grantee Acceptance. The Grantee shall signify acceptance of the terms and conditions of this Agreement by signing in the space provided at the end hereof and returning a signed copy to the Company.
17.Code Section 409A Compliance. The grant of Phantom Units made hereunder is intended to be a “short-term deferral” exempt from Section 409A and the Plan and this Agreement shall be interpreted and administered accordingly. If any provision of this Agreement would result in the imposition of an excise tax under Section 409A that provision will be reformed to avoid imposition of the excise tax and no action taken to comply with Section 409A (or to provide that the Phantom Units are exempt from Section 409A) shall be deemed to impair a benefit under this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the Grant Date.
MONITRONICS INTERNATIONAL, INC.
Exhibit A to Time-Based Phantom Unit Agreement
dated as of March 29, 2018 between
Monitronics International, Inc. and Grantee
Monitronics International, Inc. 2017 Cash Incentive Plan
Exhibit B to Time-Based Phantom Unit Agreement
dated as of March 29, 2018 between
Monitronics International, Inc. and Grantee
Designation of Beneficiary
I, __________ _______________ (the “Grantee”) hereby declare that upon my
death ____________________________ (the “Beneficiary”) of
Street Address City State Zip Code
who is my ______________________________________, will be entitled to the
Relationship to the Grantee
Phantom Units and all other rights accorded the Grantee by the above-referenced
grant agreement (the “Agreement”).
It is understood that this Designation of Beneficiary is made pursuant to the Agreement
and is subject to the conditions stated herein, including the Beneficiary’s survival of the
Grantee’s death. If any such condition is not satisfied, such rights will devolve according
to the Grantee’s will or the laws of descent and distribution.
It is further understood that all prior designations of beneficiary under the Agreement are
hereby revoked and that this Designation of Beneficiary may only be revoked in writing,
signed by the Grantee, and filed with the LTIP Committee prior to the Grantee’s death.