EXHIBIT 10.3
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EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 15, 2002 (the
"Employment Agreement"), by and between NTL INCORPORATED (to be known as NTL
Europe, Inc., from and after the Effective Date (as defined below), hereinafter
the "Company"), a Delaware corporation, and XXXX XXXXX, currently a resident of
Florida ("Executive").
WHEREAS, on May 8, 2002, NTL Incorporated and certain of its
non-operating subsidiaries each filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code with the United States
Bankruptcy Court for the Southern District of New York ("Bankruptcy Court") and
remain in possession and control of their respective assets and businesses as
debtors-in-possession; and
WHEREAS, the Company desires that Executive enter into this
Employment Agreement, and Executive desires to enter into this Employment
Agreement, on the terms and conditions set forth herein and subject to approval
by the Bankruptcy Court of the terms of this Employment Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Duties; Term.
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(a) Position. The Company agrees to employ Executive pursuant
to this Employment Agreement as Chief Financial Officer of the Company, and
Executive agrees to perform such duties, functions and responsibilities directed
by the Chief Executive Officer of the Company that are generally consistent with
such position, for a period of six (6) months commencing on the "Effective Date"
(as such term is defined in the Second Amended Joint Reorganization Plan Of
Incorporated And Certain Subsidiaries confirmed by the Bankruptcy Court on
September 5, 2002) (the "Term"), unless the Term is sooner terminated in
accordance with Section 3 hereof. The Term may be extended by mutual agreement
of the Company and Executive; provided, that any extension shall be set forth in
a written instrument. Executive's principal office shall be located in London,
England.
(b) Resignation from Other Positions. Attached to this
Employment Agreement as Exhibit A is a list of all positions (as an director,
officer, employee, consultant or otherwise) Executive holds with the Company and
any of its Affiliates (as such term in defined in Rule 12b-2 of the Securities
Exchange Act of 1934, as amended) as of the date hereof. From time to time
during the Term, at the request of the Board of Directors of the Company (the
"Board"), Executive shall resign from any or all of such positions (excluding,
however, any positions Executive holds pursuant to the Service Agreement, dated
as of July 16, 2002, to which Executive and iesy Holdings GmbH (among others)
are parties (the "Service Agreement") and any positions Executive holds with
Cablecom GmbH ("Cablecom")). In addition, upon termination of Executive's
employment for any reason, Executive shall be deemed to have resigned from all
positions with the Company and any of its Affiliates, excluding any positions
Executive holds pursuant to the Service Agreement or with Cablecom.
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Section 2. Compensation.
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(a) Salary. During the Term, the Company shall pay to
Executive a salary at an annual rate of Four Hundred and Fifty Thousand Dollars
($450,000.00), payable in accordance with the Company's standard payroll
policies, and less any amounts required or permitted to be withheld by law
including all applicable foreign, federal, state and local withholding taxes
(the "Base Salary"). If Executive provides services to the Company or any of its
Affiliates during the Term other than as set forth in Section 1 hereof, no
additional compensation shall be paid to Executive for such services, and
compensation for such services (if any) shall be paid to the Company; provided,
however, that nothing in this Employment Agreement shall preclude Executive from
retaining (i) all compensation paid by Cablecom for his services to Cablecom and
its subsidiaries pursuant to the employment agreement entered into with Cablecom
contemporaneously with this Employment Agreement (the "Cablecom Employment
Agreement") or otherwise and (ii) all payments received under the Service
Agreement. Executive acknowledges and agrees that he shall have no right to
additional compensation from the Company or any of its subsidiaries or
Affiliates in the event of any clawback or other forfeiture of compensation
payable to him for services prior to the Effective Date in respect of the
Company's investment in eKabel, L.P.
(b) Executive Benefits and Perquisites. During the Term,
Executive will be entitled to (x) the benefits listed in Exhibit B attached
hereto and (y) the expatriate package and housing stipend listed in Exhibit C
attached hereto. Notwithstanding any other provision set forth in this
Agreement, such expatriate benefits shall continue for eighteen (18) months
after the expiration of the Term, regardless of the reason for termination;
provided, however, that such expatriate benefits shall not continue in the event
Executive is terminated for Cause by the Company pursuant to Section 3(b)(i)
hereof.
(c) Additional Payment. The Company will pay Executive a
payment (the "Additional Payment") of Four Hundred and Fifty Thousand Dollars
($450,000.00), less any amounts required or permitted to be withheld by law
including all applicable foreign, federal, state and local withholding taxes, to
be paid in six (6) substantially equal monthly installments, with the first such
installment to be paid within fifteen (15) days following the Effective Date;
provided, however, that Executive shall not be entitled to receive any portion
of the Additional Payment to the extent then unpaid if his employment is
terminated by the Company for Cause during the Term.
(d) Vacation. During the Term, Executive shall be entitled
to ten (10) days of paid vacation.
(e) Payment of Attorney's Fees. Executive shall have the right
to reimbursement, upon proper accounting, of reasonable attorney's fees not to
exceed Ten Thousand Dollars ($10,000) solely in connection with and relating to
the negotiation and execution of this Employment Agreement.
(f) Business and Entertainment Expenses. The Company shall pay
or reimburse Executive for all reasonable business expenses which Executive
incurs during the
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Term in performing his duties under this Employment Agreement in accordance
with Company policy as agreed to in advance by the Chief Executive Officer of
the Company.
Section 3. Employment Termination.
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(a) Termination Other Than For Cause; Constructive Termination
Without Cause; Non-Renewal of Term. The Company may terminate Executive's
employment for any reason at any time, and Executive may terminate Executive's
employment in a Constructive Termination Without Cause in accordance with this
Section 3(a). Upon (x) termination of Executive's employment by the Company for
any reason other than for Cause (as defined below), (y) termination of
Executive's employment by Executive in a Constructive Termination Without Cause
(as defined below) or (z) termination by the Company or Executive by reason of
expiration of the Term, Executive shall be entitled to the following payments
and benefits: (i) a lump sum equal to the Base Salary for the remainder of the
Term, if any, such amount to be paid within fifteen (15) days following such
termination, (ii) any portion of the Additional Payment, to the extent then
unpaid, such amount to be paid within fifteen (15) days following such
termination, (iii) if so elected by Executive, COBRA continuation coverage for
medical benefits at the Company's expense for a period of eighteen (18) months
to the extent permitted by applicable law and (iv) continuation of Executive's
expatriate benefits, housing stipend and automobile stipend as then in effect
for a period of eighteen (18) months; provided, however, that any benefits
provided by or on behalf of the Company shall be offset for coverages and
benefits received from any subsequent employer(s); and provided, further, that
if Executive is precluded from continuing participation in any employee benefit
plan or program covered by clause (iii) of this Section 3(a), Executive shall be
provided with the after-tax economic equivalent of the benefits provided under
the plan or program in which Executive is unable to participate for a period of
eighteen (18) months. The Company's obligations to make the payments and provide
the benefits set forth in this Section 3(a) are conditioned upon: (Y)
Executive's material compliance with his obligations under Sections 4 and 5 of
this Employment Agreement (and the Company shall give Executive prompt notice of
its knowledge of any such noncompliance); and (Z) Executive's execution and
delivery to the Company of a valid and enforceable release, in a form
substantially similar to the release set forth in Section 19 hereof (with such
changes as the Company determines are necessary and appropriate to give the
release its full force and effect under the Age Discrimination and Employment
Act and other federal, state and local laws relating to employment and
employment discrimination), of any litigation, arbitration, claim or demand
arising out of, in connection with, or relating to, Executive's employment or
termination of employment with the Company or any of its Affiliates; provided,
however, that such release shall not release (i) any right of Executive to
indemnification applicable to periods prior to the Effective Date, (ii) any
rights Executive may have under the Service Agreement and the Indemnity
Agreement, dated as of July 4, 2002, to which Executive and iesy Holdings GmbH
(among others) are parties (such Agreement, together with the Service Agreement,
the "Iesy Agreements") and (iii) any rights Executive may have under the
Cablecom Employment Agreement.
For purposes of this Employment Agreement, a "Constructive
Termination Without Cause" means a termination of Executive's employment during
the Term by Executive within fifteen (15) days following the occurrence of any
of the following events without Executive's prior consent: (A) failure to
continue Executive in the position set forth in Section 1
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hereof (excluding a promotion); (B) assignment to Executive of duties that are
materially inconsistent with the scope of duties and responsibilities
generally associated with the positions set forth in Section 1 hereof; (C) any
materially adverse change in the reporting structure applicable to Executive
(but not including a change in the person filling the position to which
Executive reports; (D) relocation of Executive's principal office to a
location more than forty (40) miles from London, England, except for required
travel for Company business to an extent substantially consistent with
Executive's prior business travel obligations; (E) any material breach by the
Company of any material obligation to Executive under the Employment
Agreement; or (F) failure to maintain directors' and officers' liability
insurance on the substantially similar terms described in Section 18(b) of
this Employment Agreement or Section 5.2 of the Cablecom Employment Agreement,
despite the Company's or Cablecom's reasonable efforts to maintain such
coverage or that such coverage cannot be obtained at a commercially reasonable
cost. Executive shall give the Company ten (10) days' notice of Executive's
intention to terminate Executive's employment and claim that a Constructive
Termination Without Cause has occurred, and such notice shall describe the
facts and circumstances in support of such claim. The Company shall have ten
(10) days thereafter to cure such facts and circumstances if possible.
(b) Termination For Cause; Voluntary Resignation. The Company
may terminate Executive's employment with the Company hereunder in the event
Executive engages in conduct, or fails to take any action, which constitutes
"Cause," and Executive may voluntarily terminate his employment other than in a
Constructive Termination Without Cause at any time upon ten (10) days' notice to
the Company. For purposes of this Employment Agreement, Cause shall mean: (i)
Executive (x) is indicted for, convicted of, or pleads guilty or nolo contendere
to, any felony or (y) commits any other crime involving fraud, embezzlement or
breach of trust or fiduciary duty; (ii) in carrying out Executive's duties,
Executive engages in conduct that constitutes gross neglect or willful
misconduct; or (iii) Executive's material breach of any obligation or
representation set forth in this Employment Agreement (including, but not
limited to, any failure of Executive to comply with Section 1(b) hereof);
provided, however, that Cause shall not be deemed to have occurred by reason of
Executive's lack of physical or mental capacity. In the event that Executive's
employment with the Company hereunder is terminated pursuant to this Section
3(b), then Executive shall be entitled to Base Salary and benefits (including
pay in lieu of accrued but unused vacation and unreimbursed business expenses)
through the date of termination and Executive shall not be entitled to any other
payments or benefits; provided, however, that, if such termination is a
voluntary termination by Executive other than in a Constructive Termination
Without Cause, (A) Executive shall be entitled to any portion of the Additional
Payment, to the extent then unpaid, such amount to be paid within fifteen (15)
days following such termination, and (B) such payment of any portion of the
Additional Compensation shall be conditioned on Executive executing and
delivering the release described in subsection (Z) of the first paragraph of
Section 3(a).
The Company shall give Executive ten (10) days' notice of the
Company's intention to terminate Executive's employment and claim that facts and
circumstances constituting Cause exist, and such notice shall describe the facts
and circumstances in support of such claim. Executive shall have ten (10) days
thereafter to cure such facts and circumstances if possible; provided, however,
that this sentence shall not apply to clause (i) of the definition of Cause, for
which there shall be deemed to be no possible cure. If the Board reasonably
concludes that Executive has not cured such facts or circumstances within such
time, Cause shall
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not be deemed to have been established unless and until Executive has received
a hearing before the Board (if promptly requested by Executive) and a majority
of the Board in attendance at a meeting of the Board that occurs within ten
(10) days of the date of such hearing (if so requested) reasonably confirms
the existence of Cause and the termination of Executive therefor.
(c) Notwithstanding any provision of this Employment Agreement
to the contrary, if Executive's employment terminates under the Cablecom
Employment Agreement and such termination is as set forth in the left column of
the following table, then Executive's employment shall automatically terminate
hereunder and such termination shall be as set forth in the right column of the
following table:
-------------------------------------- ----------------------------------
Cablecom Employment Agreement This Employment Agreement
-------------------------------------- ----------------------------------
by Cablecom for Cause by the Company for Cause
-------------------------------------- ----------------------------------
Resignation in a Constructive Resignation in a Constructive
Termination Without Cause Termination Without Cause
-------------------------------------- ----------------------------------
Section 4. Confidentiality; Non-Solicitation; Non-Competition.
--------- --------------------------------------------------
(a) At all times during and after the Term, Executive shall
keep secret and retain in strictest confidence, any and all Confidential
Information (as defined below), and shall use such Confidential Information only
in furtherance of the performance by Executive of Executive's duties to the
Company and not for personal or third party benefit or the benefit of any
interest adverse to the Company's interests, except as may be required by law or
court or administrative order (in which event Executive shall so notify the
Company as promptly as practicable). For purposes of this Employment Agreement,
"Confidential Information" shall mean any information or documents (whether in
written or oral form, electronically stored, or otherwise) that evidence or
relate to the Company's or any of its Affiliates' historical, present or future
business, operations, financial condition, results of operations, funding
requirements, strategic initiatives, business plans, financial statements,
regulatory matters, litigation, arbitration, investigations, inquiries,
adversarial proceedings or prospects that, individually or collectively, are not
general public knowledge (information or documents shall not become "general
public knowledge" through a breach by, or at the direction of, Executive of his
obligations under this Section 4(a)) or information received from others that
the Company is obligated to treat as confidential or proprietary.
(b) During the Term, Executive will not engage in Competition
with the Company. For purposes of this Employment Agreement, "Competition" by
Executive shall mean Executive's (x) engaging in, or otherwise being employed by
or being a director, officer, employee, principal, agent, stockholder, member,
owner or partner of, any other business or organization which competes directly
or indirectly with the Company in its core businesses, or (y) affiliation or
association with any business or organization that purchases assets of the
Company; provided, however, that, notwithstanding the foregoing, it shall not be
a violation of
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this Section 4(b) for Executive to become the registered or beneficial owner
of up to one percent (1%) of any class of the capital stock of a competing
public corporation registered under the Securities Exchange Act of 1934, as
amended.
(c) During the Term, Executive will not solicit for employment
or hire or agree to hire, in any business enterprise or activity (other than for
the sole benefit of the Company or any of its Affiliates), any person who is or
was employed by the Company or any of its Affiliates.
(d) During the Term, Executive will not solicit, in
competition with the Company or any of its Affiliates in their businesses or
investments, any business, or order for business, from any other business or
organization that Executive knows or should have known is a current or
prospective customer, lender or vendor of, or supplier to, the Company or any of
its Affiliates.
(e) During the Term, the Executive agrees that he shall not
either alone or together with any "person" (as such term is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (such
person, an "Acquiror") acquire, propose to acquire, seek to acquire, participate
in any auction to acquire or otherwise take any steps to acquire any assets of
the Company or any of its Affiliates without the express approval of the Board;
provided, however, nothing herein shall prohibit the Executive from providing
services to and receiving compensation (including equity compensation) from (i)
the Company following the acquisition of a controlling interest in or ownership
of the Company by any Acquiror or (ii) an Acquiror or any of its Affiliates
following the acquisition of assets of the Company or any of its Affiliates, in
each case so long as Executive did not violate this Section 4(e). Executive
agrees that the Company would suffer an irreparable injury if Executive was to
breach the covenant contained in this paragraph (e), and that the Company would
by reason of such breach or threatened breach be entitled to seek injunctive
relief in a court of appropriate jurisdiction, as well as such other remedies as
may then be appropriate.
Section 5. Cooperation.
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Following termination of Executive's employment for any
reason, Executive agrees to reasonably cooperate with the Company upon
reasonable request of the Board and to be reasonably available to the Company
with respect to matters arising out of Executive's services to the Company and
its Affiliates. Executive represents and agrees that he will give truthful
testimony in any investigations, proceedings or legal actions relating to such
matters. Executive further represents and agrees that he will not furnish
information to or cooperate with any non-governmental entity (other than the
Company or any of its Affiliates) which is a party to an investigation,
proceeding or legal action involving the Company or any of its Affiliates.
Nothing in this Section 5 shall prohibit Executive from responding to a valid
subpoena or court order provided that Executive has given the Company sufficient
notice of such subpoena or court order to allow the Company an opportunity to
seek a protective order or other relief limiting or barring such disclosure. The
Company shall reimburse Executive for expenses reasonably incurred in connection
with such matters as agreed by Executive and the Board.
Section 6. No Third Party Beneficiary.
--------- --------------------------
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This Employment Agreement is not intended and shall not be
construed to confer any rights or remedies hereunder upon any Person, other than
the parties hereto or their permitted assigns. For purposes of this Section 6,
"Person" shall mean an individual, corporation, partnership, limited liability
company, limited liability partnership, association, trust or other
unincorporated organization or entity.
Section 7. Notices.
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Unless otherwise provided herein, any notice, exercise of
rights or other communication required or permitted to be given hereunder shall
be in writing and shall be given by overnight delivery service such as Federal
Express, telecopy (or like transmission) or personal delivery against receipt,
to the party to whom it is given at the following address or facsimile number of
such party:
If to the Company: NTL Europe, Inc.
00 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
XX0X 0XX
Attention: Chief Executive Officer
Fax: x00 00 0000 0000
With a copy to: Xxxxxxx Xxxxxxx
Managing Director
Quest Turnaround Advisors L.L.C.
00 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx, XX 00000
Fax: 000-000-0000
and:
Xxxxxxxx Xxxxx, Esq.
Xxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax: 000-000-0000
If to the Executive: Xxxx Xxxxx
000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
With a copy to: Xxxxx Xxxxxx, Esq.
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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or such other address or facsimile number as such party may hereafter specify by
notice to the other party hereto; provided, that, if the facsimile method is
used, then such notice, exercise of rights or other communication shall also be
given by any other method permitted hereunder. Any notice or other communication
shall be deemed to have been given as of the date so personally delivered or
transmitted by telecopy or like transmission or on the next business day when
sent by overnight delivery service.
Section 8. Representation.
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The Company hereby represents and warrants that the execution
and delivery of this Employment Agreement and the performance by the Company of
its obligations hereunder have been duly authorized by all necessary corporate
action of the Company. Executive represents to the Company that Executive's
execution and performance of this Employment Agreement does not violate any
agreement or obligation (whether or not written) that Executive may have with or
to any person or entity including, but not limited to, any prior employer.
Section 9. Amendment.
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This Employment Agreement may be amended only by a written
agreement signed by the parties hereto.
Section 10. Binding Effect.
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This Employment Agreement shall be binding upon and inure to
the benefit of the Company and any successor in interest, assign or successor
organizations which shall succeed to the Company by merger or consolidation or
operation of law, or by acquisition of all or substantially all of the assets of
the Company and the Company shall be obligated to ensure that any such party
undertake in writing to assume the obligations of the Company hereunder.
Section 11. Governing Law.
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This Employment Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflict of laws provisions.
Section 12. Severability.
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If any provision of this Employment Agreement, including those
contained in Section 4 hereof, shall for any reason be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not be affected or impaired thereby. Moreover, if any
one or more of the provisions of this Employment Agreement, including those
contained in Section 4 hereof, shall be held to be excessively broad as to
duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowable by
applicable law. To the extent permitted by applicable law, each party hereto
waive any provision of law that renders any provision of this Employment
Agreement invalid, illegal or unenforceable in any way.
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Section 13. Execution in Counterparts.
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This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
Section 14. Entire Agreement.
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This Employment Agreement sets forth the entire agreement, and
supersedes all prior representations, agreements and understandings (including
any prior course of dealings), both written and oral, between the parties with
respect to the subject matter hereof and thereof; provided, however, that
nothing in this Employment Agreement shall affect in any way Executive's rights
and obligations under the Iesy Agreements or the Cablecom Employment Agreement.
Section 15. Titles and Headings.
---------- -------------------
Titles and headings to Sections herein are for purposes of
reference only, and shall in no way limit, define or otherwise affect the
meaning or interpretation of any of the provisions of this Employment Agreement.
Section 16. Consent to Jurisdiction.
---------- -----------------------
The parties hereby irrevocably submit to the jurisdiction of
any Federal court sitting in the City of New York in any action or proceeding to
enforce the provisions of this Employment Agreement, and waives the defense of
inconvenient forum to the maintenance of any such action or proceeding.
Section 17. Approval By Court.
---------- -----------------
The Company shall undertake to file a motion seeking, and use
its best efforts to promptly obtain, approval of the terms of this Employment
Agreement by the Bankruptcy Court.
Section 18. Indemnification.
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(a) To the fullest extent permitted by Delaware law, the
Company shall indemnify Executive against, and save and hold Executive harmless
from, any damages, liabilities, losses, judgments, penalties, fines, amounts
paid or to be paid in settlement, costs and reasonable expenses (including, but
not limited to, attorneys' fees and expenses), resulting from, arising out of or
in connection with any threatened, pending or completed claim, action,
proceeding or investigation (whether civil or criminal) against or affecting
Executive as a result of Executive's service from and after the Effective Date
as an officer, director or employee of, or consultant to, any member of the
Company or any of its Affiliates, or in any capacity at the request of the
Company or any of its Affiliates, or an officer, director or employee thereof,
in or with regard to any other entity, employee benefit plan or enterprise
(other than arising out of Executive's acts of willful misconduct,
misappropriation of funds or fraud). In the event the Company does not
compromise or assume the defense of any indemnifiable claim or action
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against Executive, the Company shall, to the extent permitted by applicable
law, promptly pay to Executive all costs and expenses incurred or to be
incurred by Executive in defending or responding to any claim or investigation
in advance of the final disposition thereof; provided, however, that if it is
ultimately determined by a final judgment of a court of competent jurisdiction
(from whose decision no appeals may be taken, or the time for appeal having
lapsed) that Executive was not entitled to indemnity hereunder, then Executive
shall repay forthwith all amounts so advanced. The Company may not agree to
any settlement or compromise of any claim against Executive, other than a
settlement or compromise solely for monetary damages for which the Company
shall be solely responsible, without the prior written consent of Executive,
which consent shall not be unreasonably withheld. This right to
indemnification shall be in addition to, and not in lieu of, any other right
to indemnification to which Executive shall be entitled pursuant to the
Company's Certificate of Incorporation or By-laws or otherwise.
(b) Directors' and Officers' Insurance. During the Term, the
Company shall use its reasonable efforts to maintain directors' and officers'
liability insurance on substantially similar terms as in effect prior to the
Effective Date, so long as such insurance may be obtained at a commercially
reasonable cost.
Section 19. Release of Claims.
---------- -----------------
Effective as of the Effective Date, Executive, with the intent
of binding Executive and Executive's heirs, successors and assigns, hereby
releases, remises, acquits and forever discharges the Company and each of its
Affiliates, the divisions, successors, predecessors and assigns thereof, and the
present and former officers, directors, executives, agents, attorneys and
employees thereof (collectively, the "Released Parties"), of and from any and
all claims, actions, causes of action, demands, rights, damages, debts, sums of
money, accounts, financial obligations, suits, expenses, attorneys' fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether now
known or unknown, suspected or unsuspected, which Executive individually or as a
member of a class now has, owns or holds, or has at any time heretofore had,
owned or held, against any Released Party, but excluding (a) out-of-pocket
expenses properly incurred by Executive prior to the Effective Date under
Company policy in effect upon the incurrence thereof, (b) any right to
indemnification applicable to periods prior to the Effective Date, and (c) any
rights of Executive under the Iesy Agreements or the Cablecom Employment
Agreement.
Section 20. Assignment.
---------- ----------
Notwithstanding any other provision of this Employment
Agreement, Executive may assign his right to receive any payment hereunder to a
company wholly owned by him, and, upon a following any such assignment, the
Company shall make such payments to such company; provided that any assignment
by which the Company would lose a tax deduction available to it in the absence
of such assignment shall not be permitted. Any such assignment shall be made
pursuant to a written instrument in form satisfactory to Executive and the
Company.
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IN WITNESS WHEREOF, the undersigned have executed this
Employment Agreement as of the date first written above.
NTL EUROPE, INC.
/s/ Xxxx Xxxxx /s/ J. Xxxxxxx Xxxxx
----------------------------- ----------------------------------------
Xxxx Xxxxx By: J. Xxxxxxx Xxxxx
Its: President
Exhibit A--List of Positions
Exhibit B--Benefits
Exhibit C--Expatriate Package and Housing Stipend
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EXHIBIT A
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XXXX XXXXXXX XXXXX DIRECTORSHIPS REPORT
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COUNTRY OF INCORPORATION COMPANY NUMBER
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Minority Interests
Euroco
De Facto 953 Limited England & Wales 4273370
FLPTV Limited England & Wales 4112553
xxxx.xxx Limited England & Wales 3987055
xxx.xx.xx Limited England & Wales 3904202
xxxxxxx.xx.xx Limited Scotland SC207783
Two Way TV Limited England & Wales 2662112
Global Radio Participations SA Luxembourg
Global Radio SA Luxembourg
Into Networks, Inc USA
NOOS France
B2 Bredband AB Sweden
eKabel Hessen GmbH & Co KG Germany
eKabel LP Germany
iesy Hessen GmbH Germany
iesy Holdings GmbH Germany
iesy Finanz GmbH & Co KG Germany
Ekabel General Partner Limited
Xxxxxx Kabel Partners II LP
--------------------------------------------------------
Wholly Owned
ntl Inc
Classic Sport Limited England & Wales 4146754
De Xxxxx 000 Xxxxxxx Xxxxxxx & Xxxxx 3928189
De Facto 877 Limited England & Wales 0000000
ntl Mobile Communications Limited England & Wales 0000000
ntl Mobile Limited England & Wales 3894897
Premium TV (Ventures) Limited England & Wales 3881170
Premium TV Limited England & Wales 3426471
National Transcommunications Spain, SL Spain
ntl (Delaware One), Inc United States
ntl (Delaware Two), Inc United States
ntl (Delaware Three), Inc United States
ntl USA Services Company United States
ntl Australia SPV Inc United States
ntl International Broadcasting, Inc. United States
NTL Switzerland SPV Inc United States
NTL Switzerland Holdings SPV LLC United States
NTL TWTV Holdings Limited England & Wales
NTL Telephone Equipment Limited England & Wales
ntl Delaware Inc United States
Premium TV Investments LLC United States
ntl Golden Gate Inc United States
ntl Investments Inc United States
ntl Sweden SPV Inc United States
NTL France SPV Inc United States
Sun Savings SL Spain
Brigadoon Ventures Inc United States
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EXHIBIT B
Expatriate Benefits
1) Tax Differentiation
The objective is to ensure that the executive pays no more and no less tax and
social security on company and all sources of income and benefits than he/she
would have done
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while working in the home country (USA Florida residency). The
company will retain Ernst & Young or another suitable tax consultant to prepare
the executive tax returns. The executive is expected to cooperate with the
consultant. The Consultant will calculate the executive Hypo tax amount which is
the total income and social security tax the associate would have paid had he
kept his residence in Florida. The amount of the Hypo tax will be withheld by
the company from the executive taxable compensation. The company will make all
payments due by the executive to tax and social security authorities at the end
of each quarter for all income earned during the quarter. Detailed tax
equalization policy is provided under Exhibit B-1.
2) Healthcare
Insurance for executive and his dependents to a standard comparable to that
available under NTL Inc. as of September 2002.
3) Leave passage allowance
Executive will be paid an annual non-accountable Leave Travel Allowance net of
tax. The value of the allowance will be based upon the cost of economy (fully
flexible and refundable) return fares from the foreign location to the
international airport nearest to the executive last residence in the US for the
executive and his/her family. The executive may elect to receive payment of the
first allowance at any date after the first six months of the assignment and
thereafter during each subsequent calendar year of the assignment. The executive
is free to make his/her own leave travel arrangements and no further claims for
travel expenses incurred will be accepted.
4) Compassionate Leave
In the event of a life-threatening illness or death within the immediate family,
the executive will be provided with return air passages to the US/Home country
and up to one week's leave of absence.
5) Housing Allowance
GBP 8,190 plus utilities per month
6) Income tax preparation
Given the complications related to income tax preparation, the company will hire
at its cost a consultant to prepare the income tax returns of executive in all
the jurisdictions executive is subject to income tax.
7) Company Car
A monthly allowance of $1,450 plus gas
13
8) Immigration/visas
The company will cover the cost of assisting the executive in maintaining his
immigration status in the US as well as in obtaining all necessary work visas
and residency permits for him and his family.
9) Moving/Relocation
The company will pay for 1) All direct cost of moving all of executive's
personal effects including packing, unpacking, freight, clearance and insurance.
The executive will seek 3 bids from well established international moving
companies. The company will promptly reimburse the executive an amount equal to
the lowest bid. 2) A relocation allowance equal to one month base salary net of
tax to defray the cost of setting up a new home 3) Up to 5 trips for executive
and his family to the new location to prepare for the move and interview with
schools. Expenses to be reimbursed according the company travel policy and 4) 30
days of temporary accommodations for executive and his family to be extended
only with express permission of the company.
The benefits under section 9 will be provided in the event the company moves it
primary place of business or in the event executive's employment terminates for
any reason other than cause.
10) Payment Of Salary/Exchange Rates:
Salary will be paid no less than monthly in arrears per executive instructions.
Payments to US bank account will be made in US$. Payment in the local bank
account will be made in the local currency. The applicable exchange rate will be
that in effect as of the date of the relevant employment agreement.
14
EXHIBIT B-1
NTL INCORPORATED
TAX EQUALISATION POLICY
A. Objective
---------
A tax equalisation policy has been established, when on foreign
assignment, an employee's actual tax liability will be different from
what it would have been in the home country. (This is because expatriate
allowances and reimbursements may be taxable in the foreign country; the
employee is also likely to remain subject to home country taxes).
This policy ensures that an expatriate's total tax burden will
approximate to that of an NTL INCORPORATED employee working in the US
with comparable NTL INCORPORATED income, personal income, adjustments,
deductions and exemptions, irrespective of host (ie, assignment) country.
By equalising income and social tax costs for its expatriates, NTL
INCORPORATED intends that each expatriate shall fully comply with the tax
filing and payment requirements imposed by the taxing authorities in his
country of assignment and by his home country. Assistance will be
provided to the expatriate by an international tax consulting firm in
order to meet these tax return filing requirements.
B. Reporting Obligations
---------------------
NTL INCORPORATED requires that all employees be familiar and comply
fully with all applicable national and local laws. In connection with tax
matters, the following guidelines ensure that NTL INCORPORATED and its
expatriates will fully comply with worldwide income tax requirements.
o NTL INCORPORATED regards compliance with worldwide income
tax requirements as a mandatory obligation of each
expatriate.
o An expatriate must conduct himself at all times so as to
avoid charges of tax evasion or abuse, or of violation of
local law, which could jeopardise in any way his standing
personally or as a representative of NTL INCORPORATED.
o An expatriate is expected to exercise care and attention in
minimising his liability for worldwide income taxes in
accordance with appropriate principles of tax planning. An
expatriate must co-operate with NTL INCORPORATED to ensure
that his tax returns are filed in such a manner as to
produce the lowest possible tax permitted by law.
Each expatriate is required to report taxable income and pay income
taxes to the taxing authorities which have jurisdiction during the period
of his International Assignment. The income and social taxes to be paid
by each expatriate will be governed by the tax laws and regulations under
which the taxing authorities operate.
15
C. Tax Return Preparation Assistance
---------------------------------
It is the responsibility of each expatriate to ensure that the proper
income tax returns are filed when due. NTL INCORPORATED has engaged an
international tax consulting firm to assist expatriate employees in
meeting this obligation. The fee for such services will be borne by NTL
INCORPORATED.
Tax returns prepared by the international tax consulting firm will be
kept confidential by them.
D. Implementation of Tax Equalisation
----------------------------------
NTL INCORPORATED will continue to withhold actual US Social Security
Taxes from the base salary of a US citizen or green-card holder during an
International Assignment, subject to maximum statutory limitations.
As noted above, under the NTL INCORPORATED Tax Equalisation Policy,
each expatriate will have a total income tax burden approximately equal
to that of an NTL INCORPORATED employee working in the US with comparable
income, adjustments, deductions and exemptions.
This is achieved by calculating a hypothetical tax liability and
subtracting this amount from the expatriate's base salary during the
year.
Having reduced base salary by a retained hypothetical US income tax,
NTL INCORPORATED will assume responsibility for paying the expatriate's
actual worldwide income tax liability as well as his actual local social
tax, if any.
After the close of the year, and after an expatriate's US Federal (and
State, if required) income tax return has been filed, the international
tax consulting will prepare a year-end reconciliation. The "retailed
hypothetical US income tax" will be adjusted, to reflect actual income
and deductions in place of estimated amounts used at the beginning of the
year. This reconciliation will be the basis of a final settlement between
NTL INCORPORATED and the expatriate of that year's income tax
reimbursement.
1. Hypothetical US income tax (retained from pay)
Hypothetical tax represents an estimate of the expatriate's US Federal
and Ohio State tax obligations on his or her projected taxable
income. This will be calculated using actual filing status,
current dependency exemptions and tax rates for the taxable year.
NTL INCORPORATED has decided to calculate hypothetical State tax
based on Ohio rates, since this is where payroll is maintained,
irrespective of an individual's `home' state prior to accepting
overseas assignment.
Income to be included in the hypothetical tax calculations is
as follows:-
o base salary
16
o bonus
o car benefit
o group term life
o personal passive (investment) income
If married, passive income of expatriate's spouse will also be
included. Subject to the specific exception below, spousal salary
or other earned income, however, is specifically excluded from the
Hypothetical calculation. Rationale: spouse is eligible to elect
Sec.911 foreign earned income exclusion in their own right. This,
plus credit for foreign taxes paid on foreign source wages, should
result in no incremental US tax being due on such income. Spouse
remains personally liable for all foreign income and social
security taxes due.
In arriving at hypothetical taxable income, deductions will be
available for:
o actual amounts claimed on Federal income tax return to arrive at
adjusted gross income.
o actual itemised deductions per Federal return, excluding moving
expenses.
o mortgage interest and real estate taxes paid per Federal Schedule A
or, if home is sold during overseas assignment, the amounts
deductible in last complete tax year prior to sale.
o credit will be given for hypothetical Ohio State taxes calculated,
if this figure is higher than actual taxes claimed in Federal
return.
The hypothetical US income tax retained from pay may be changed by
NTL INCORPORATED during the course of a year whenever there is a
change in the expatriate's base salary, 401(k) contribution, or
other NTL INCORPORATED income/related deductions, or a change in
filing status or number of dependants. Also, upon notification and
verification of US itemised deductions and deductible losses and
adjustments such as US rental losses and alimony, NTL INCORPORATED
may reduce the retailed hypothetical tax to give the expatriate
current tax benefit. Conversely, NTL INCORPORATED may increase the
retailed hypothetical tax in order to collect the additional
hypothetical US income tax on net personal income such as
dividends and interest.
The hypothetical US income tax retained from pay is not a withholding
tax and should not be confused with the amount of US income tax
withholding to which the expatriate may have been subject prior to
the International Assignment. The two amounts are calculated in
different ways and will often be different in amount. The
hypothetical US income tax is simply a negative item in the
expatriate's compensation package which, because it approximates
his tax obligation for the year on NTL INCORPORATED income,
provides the expatriate with approximately the same net level of
spendable income as a counterpart US employee.
Spousal Income - Exception
--------------------------
In the event that both spouses are employed by NTL INCORPORATED and
on foreign assignment, the hypothetical tax liability will be
based on the inclusion of all income (as above) and calculated on
the basis of the married filing joint tax rates. The
17
hypothetical taxes payable by each spouse will be in proportion
to their respective gross income (as defined above), but net of
401k contributions and/or other NTL INCORPORATED income/related
deductions.
2. Final Hypothetical US Income Tax (for tax reimbursement purposes)
As stated above, after the close of the year, the "retained
hypothetical US income tax" will be adjusted to a "final
hypothetical US income tax" based on actual amounts. This
hypothetical US income tax then becomes the "final" income tax
burden which an expatriate must bear for such year, and will
approximate that of an NTL INCORPORATED employee in the US with
comparable base salary, bonus, other NTL INCORPORATED income,
personal income or losses, deductions and exemptions.
Because the United States taxes its citizens and green-card holders
on worldwide income, the final hypothetical US income tax will be
based not only on NTL INCORPORATED base salary and bonus, but also
on the expatriate's taxable net personal income or loss,
adjustments, and in most circumstances on his actual itemised
deductions as well. In the absence of a reduction in the retained
hypothetical US tax as discussed above, the NTL INCORPORATED
expatriate with losses, alimony or itemised deductions will likely
receive a cash reimbursement from NTL INCORPORATED after the end
of the year. On the other hand, an NTL INCORPORATED expatriate
with net personal income will be obliged to make a cash payment to
NTL INCORPORATED after the end of the year equal to the additional
hypothetical tax on such income. Such expatriates are thereby on
notice that they must have sufficient cash to pay this
hypothetical tax on personal income, or make arrangements for NTL
INCORPORATED to retain it through payroll or to make payments of
Estimated US income tax to the IRS and to State tax authorities,
if applicable.
The final hypothetical US income tax will be based on the
following items:
(a) NTL INCORPORATED Income
-----------------------
o Base salary, less 401(k) contributions and any other pre-tax
employee contributions. (For this purpose, in the case of an
employee who works a part-year on International Assignment for NTL
INCORPORATED and who works a part-year for NTL INCORPORATED in the
US base salary will be the sum of the two part-year base
salaries).
o Cash bonuses and any other cash incentive compensation.
o (Income from the exercise of NTL INCORPORATED Stock Options.
(Note, however, that while an expatriate will be charged a US
hypothetical tax on Stock Option income, it is in the best
interests of the expatriate, and of NTL INCORPORATED, for the tax
consequences of stock option exercises to be thoroughly discussed
with the international tax consulting firm in advance of
18
the exercise and of any subsequent sale of shares, in order to
mitigate adverse tax consequences).
o Income from any other NTL INCORPORATED stock-based incentive plan.
o Imputed income from group term life insurance and any other
employee benefit considered taxable in the US which the expatriate
would have received independent of his International Assignment.
o Overseas allowances are excluded from all calculations of
hypothetical tax to ensure that NTL INCORPORATED bears the full
cost of any tax imposed on these allowances.
(b) Net Personal Income
-------------------
"Net personal income" is the positive amount which results from
subtracting "personal losses" from "personal income". NTL
INCORPORATED reserves the right to "cap" the amount of net
personal income which it will tax equalise under this
policy, and also to limit its reimbursement of host country
income taxes thereon when such taxes could have been
avoided by following the tax advice of the international
tax consulting firm.
"Personal income" encompasses income earned or received from sources
other than NTL INCORPORATED. It includes, but is not
limited to, amounts from the following sources which are
taxable on an expatriate's actual US income tax return:
o Dividends
o Interest
o State income tax refunds
o Net capital gain, other than gain from the sale of an expatriate's
US principal residence and gain from the sale of any residence
owned by the expatriate country of assignment.
o Net rental income (but excluding any NTL INCORPORATED - funded
expenses).
o Net partnership income.
Capital gain arising from the sale of an expatriate's US principal
residence will not be tax equalised under the NTL
INCORPORATED policy. In this connection, it is possible for
an expatriate who sells his US principal residence (upon
taking an International Assignment) to defer the Federal
(but not all states') income tax on his gain, if any, by
reinvesting the proceeds (within certain time limits) in a
new principal residence. The tax consequences of selling
versus renting should be discussed with the international
tax consulting firm. In the event an expatriate chooses to
sell his US principal residence, at any time, the
expatriate will be responsible for the full amount of the
income tax payable, if any, on the gain therefrom, as well
as the full amount of the income tax payable, if any, on
the sale of any residence owned by the expatriate in the
country of assignment.
19
"Personal Income" also includes:
o Any salaries or compensation received by the expatriate prior to,
or subsequent to, the International Assignment, while
self-employed or employed by a corporation unrelated to NTL
INCORPORATED.
o Any salaries, compensation or self-employment income received by
the expatriate's spouse prior to, or subsequent to, the
International Assignment.
During the period of the expatriate's International Assignment,
to the extent that an expatriate's spouse has a job in
the host country, or is self-employed there, the spouse
will be fully responsible for any income and social taxes
imposed on the spouse's income. In this circumstance, the
Year-End US. Tax Equalisation calculation will not
reflect a final hypothetical US income tax on such
income; and in calculating the actual US income tax if
any, attributable to the spouse's income, the spouse will
receive the full benefit of the spouse's "earned income
exclusion" and the appropriate "foreign tax credit"
available under US tax law. However, where the host
country is the UK, the "married couple's allowance" will
be deemed deductible by the NTL INCORPORATED expatriate
and not by his spouse.
"Personal losses" encompass losses funded exclusively
by the expatriate. This category includes, but is not limited to:
o Net capital loss deductible on the actual US income tax return.
o Net rental loss deductible on the actual US income tax return (but
excluding any NTL INCORPORATED funded expenses).
o Net partnership loss deductible on the actual US income tax
return.
(c) Net Personal Loss
-----------------
"Net Personal Loss is the negative amount which results from sub-
tracting "personal losses" from "personal income".
(d) Deductions
----------
The following deductions which are not funded by NTL
INCORPORATED via a specific allowance payment will be
allowed in arriving at an expatriate's hypothetical
taxable income for purposes of computing his final
hypothetical US income tax:
Adjustments to gross income claimed on the expatriate's actual US
income tax return for the taxable year, such as alimony,
forfeited interest, and deductible XXX contributions;
plus
- the amount of actual itemised deductions deductible on an
expatriate's US income tax return for the taxable year plus
the amount of the final hypothetical State income tax for
the year;
- an amount equal to the last full tax year's
expense for mortgage interest and real estate taxes
where the principal residence in USA has been sold.
20
An expatriate's actual itemised deductions will be reduced by
those expenses (principally moving expenses) which were
reimbursed (directly or in the form of an allowance) by NTL
INCORPORATED.
(e) Tax Rates & Filing Status
-------------------------
In computing the final hypothetical US income tax, the tax
rates and filing status to be used are those used on the
actual US income tax return (and State return, if required)
for the taxable year.
(f) Tax Income Taxes
----------------
The State portion of the final hypothetical US income tax will
be adjusted after year-end to include the various items of
income and deductions described above, applying the tax
laws of the State of Ohio which would have been applicable
to an expatriate if he had remained in the US.
In most cases, an expatriate will not be subject to actual
State income taxes on his worldwide earnings abroad,
However, some states may attempt to assess state income
taxes in certain situations. Where this occurs, the
following rules will apply:
o Tax based on "domicile" or "residence" in year of departure from
US or return to US
Some states assess tax on an expatriate's overseas earnings due to
the fact that the expatriate was domiciled in that state during
the year. In such cases, an equitable adjustment will be made to
keep the expatriate whole.
o State Income Tax on Business Trips to the US
In certain circumstances, business trips to the US by an expatriate
may attract State income tax on earnings related to such business
trips. NTL INCORPORATED will reimburse an expatriate for all state
income taxes assessed on income earned on business trips to the
US.
3. Reimbursement of Actual Worldwide Income Taxes & Local Social
Services
Having reduced an expatriate's compensation by a retained
hypothetical US income tax which is later adjusted to a final
hypothetical US tax, NTL INCORPORATED will reimburse the actual
amount of worldwide income taxes paid by an expatriate as well as
local social taxes paid, if any.
In general, NTL INCORPORATED employees on International Assignment
will be subject to income and social taxes in their country of
assignment. Where this is the case, NTL INCORPORATED expects each
expatriate to comply fully with the tax laws of such country,
relying on the services of the international tax consulting firm
in the preparation of required tax returns and in legally
minimising income tax liabilities.
Whenever an expatriate must pay a local income or social tax, NTL
INCORPORATED will at that time pay the amount of such tax to or on
behalf of the expatriate. This includes local income and social
taxes in the form of:-
o Withholding taxes which NTL INCORPORATED is required to pay over
to the assignment country government.
o Estimated tax filings made during the year.
21
o Payment of the balance due with the assignment country income tax
return or upon final assessment for the tax year.
In all cases, the expatriate's cash flow will not be reduced by tax
payments to the assignment country government.
Verification of the actual amount of local taxes paid by each
expatriate will be provided by Ernst & Young, which will
communicate the amount thereof to NTL INCORPORATED. An amount
equal to any local tax refunds must be paid or turned over to NTL
INCORPORATED by the expatriate, since NTL INCORPORATED (and not
the expatriate) will have funded all local taxes.
4. Year-End US Tax Equalisation
After an expatriate's US income tax return (if required) has been
filed, the international tax consulting firm will prepare a tax
reconciliation.
NTL INCORPORATED will provide to the consultants the salary and other
information (retained hypothetical tax, etc.) necessary to
complete this form. The consultants will send the Year-End US Tax
reconciliation to NTL INCORPORATED, who will review the
calculation and then forward it to the expatriate.
The "Year-End US Tax reconciliation" will reconcile the retained
hypothetical US income tax with the final hypothetical US income
tax for the year. It will also disclose the actual US income tax
for the year (if any) which, under this policy, is fully
reimbursable by NTL INCORPORATED. The reconciliation will then
indicate the net reimbursement owed to/by the expatriate, and NTL
INCORPORATED reimbursement will be made as appropriate and final.
NTL INCORPORATED will reimburse the expatriate for all interest and
penalties relating to NTL INCORPORATED income except when the
assessment of the interest and penalties results from the
negligence or fault of the expatriate; eg,., a delay in submitting
data booklets or tax questionnaires to the consultants which in
turn prevents the timely filing of a return.
NTL INCORPORATED will also reimburse interest imposed on any balance
due resulting from an extended due date for filing US tax returns
granted to US taxpayers residing overseas.
5. Credits Allowed against US tax for Local Taxes Paid
Any tax credits for local taxes (referred to as "foreign tax
credits") reimbursed by NTL INCORPORATED which reduce an
expatriate's US income tax liability prior to, during or
subsequent to his International Assignment, will be considered to
be for the benefit of NTL INCORPORATED.
It also includes tax credits (reimbursed by NTL INCORPORATED) which
are carried back or carried forward, regardless of whether the
income in the carryback or carry forward year is related to the
International Assignment. In such instances, an
22
expatriate must pay the amount of his tax refund received from the
Internal Revenue Service, plus interest, to NTL INCORPORATED. This
payment is to be made within 10 days of receipt of the refund.
6. Net Operating Losses
Any net operating losses resulting from exclusions available to US
citizens working abroad will be considered to be for the benefit
of NTL INCORPORATED, because the tax benefit of these personal
losses will have been fully realised by the expatriate in the
hypothetical tax calculation. This includes a net operating loss
which is carried back or carried forward regardless of whether the
income in the carryback or carry forward year is related to the
International Assignment. In such instances, an expatriate must
pay the amount of his tax refund received from the Internal
Revenue Service and applicable state tax authority, plus interest,
to NTL INCORPORATED. This payment is to be made within 10 days of
receipt of the refund.
7. Subsequent Adjustments
Assignment country government or US Internal Revenue Service or State
government examinations of expatriate income tax returns are not
uncommon. When they occur, the year-end US or local tax
equalisation for that year will be recomputed, if necessary, with
adjustments made as appropriate.
8. "Tax on Tax"
Whenever NTL INCORPORATED reimburses local or US income taxes (either
currently, or in the following year), such reimbursements
themselves constitute taxable income for US income tax purposes
and, generally, for assignment country tax purposes as well. Under
the NTL INCORPORATED Tax Equalisation Policy, any "final" tax paid
with respect to income tax reimbursements will be fully reimbursed
by NTL INCORPORATED.
For repatriated employees receiving tax reimbursements during the
year subsequent to termination of their International Assignment,
the payment may be grossed up to include any final tax due on the
reimbursement in order to keep the employee whole.
9. Short-term loans
Even though compensation is reduced by the hypothetical US income
tax, it may be necessary for NTL INCORPORATED to withhold actual
US or local taxes as applicable, and to remit these taxes to the
proper US and local taxing authorities. In order to ease the
expatriate's cash flow burden, the expatriate in such cases will
receive a loan equal to the local and/or US taxes withheld, with
the approval of NTL INCORPORATED. This loan will, to the extent
possible, be remitted to the expatriate at the same time that the
salary check is issued. The total loan will be settled in the
following year at the time the Year-End US or local tax
reconciliation is prepared.
23
10. Annual settlement with expatriate
When the Year-End Equalisation calculations result in a balance due to
the expatriate, the amount will first be applied against any
outstanding loans for the same year. The remainder will be paid by
NTL INCORPORATED to the expatriate.
If loans for a particular year exceed the amount of the tax
equalisation balance due, the expatriate must repay such excess
loans to NTL INCORPORATED within 10 days of receiving the
applicable refund of taxes from the US or local government taxing
authorities. NTL INCORPORATED reserves the right to recapture all
unpaid tax loans by reducing the expatriate's base salary.
11. Treatment of new, returning, terminated and retired expatriates
For an expatriate who is hired, transferred, terminated or who
returns home during the year, the Year-End US Tax Equalisation
will be adjusted in order to compare:
o Hypothetical US income tax retained from compensation (described
above) during the portion of the year spent on International
Assignment,
o Final hypothetical US income tax (described above) on the entire
year's income, and
o Actual US income tax liability on Form 1040 for the entire year.
Where the expatriate was employed by an employer other than NTL
INCORPORATED or any affiliate during the year, compensation from
the expatriate's previous or subsequent employer will be treated
as personal income and will therefore be subject to US
hypothetical tax and will be fully tax equalised.
Where the expatriate spent part of the year (either pre-assignment or
post assignment) in the US he will be fully responsible for
applicable State income taxes assessed during such part-year
periods, except to the extent that such state income taxes are
increased by a NTL INCORPORATED allowance on which NTL
INCORPORATED assumes responsibility for paying actual taxes.
12. Treatment of expatriates who are married to participants in tax
equalisation policies of other employers
For an expatriate whose spouse is employed in the host country by
entities other than NTL INCORPORATED and is covered by a tax
equalisation policy of another employer, the manner in which the
final hypothetical tax and reimbursable US and local taxes are
calculated will be determined on a case-by-case basis. This
approach will ensure that an NTL INCORPORATED expatriate receives
the protection to which he is entitled under the NTL INCORPORATED
Tax Equalisation Policy by eliminating any distorted results which
could occur if the standard calculations were performed.
24
EXHIBIT C
Life Insurance at 2x annual salary for a maximum of $300,000. Long term
disability at 50% of monthly salary up to $6,000 per month.
Dental coverage on substantially similar terms as Executive currently receives,
including COBRA continuation rights.
Medical coverage on substantially similar terms as Executive currently receives.
Participation in 401(k) plan on substantially similar terms as 401(k) plan
Executive currently participates in.
25
Side Letter
This Side Letter, dated as of October 15, 2002, is hereby made by and
among NTL Incorporated (to be known as NTL Europe, Inc. from and after the
"Effective Date" (as defined in the Second Amended Joint Reorganization Plan of
NTL Incorporated and Certain Subsidiaries confirmed by the Bankruptcy Court on
September 5, 2002) ("NTL Europe"), Cablecom GmbH ("Cablecom") and Xxxx Xxxxx
(the "Executive").
WHEREAS, contemporaneously with this Side Letter, the Executive and NTL
Europe are entering in an Employment Agreement, dated as of October 15, 2000
(the "NTL Europe Employment Agreement"); and
WHEREAS, contemporaneously with this Side Letter, the Executive and
Cablecom are entering in a Contract of Employment, dated as of October 15, 2000
(the "Cablecom Employment Agreement"); and
WHEREAS, Section 2(b) of the NTL Europe Employment Agreement provides
that the Executive shall receive certain medical benefits, as provided therein
and pursuant to Exhibit B of the NTL Europe Employment Agreement (the "Medical
Benefits");
WHEREAS, the parties intend herein to clarify Section 2(b) of the NTL
Europe Employment Agreement with respect to the provision of the Medical
Benefits;
NOW, THEREFORE, in consideration of NTL Europe entering into the NTL Europe
Employment Agreement and Cablecom entering into the Cablecom Employment
Agreement and other good and valid consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Cablecom shall provide the Medical Benefits to the Executive as set
forth in Section 2(b) of the NTL Europe Employment Agreement, if such Medical
Benefits are not otherwise provided by NTL Europe pursuant to a group health
plan.
2. If Cablecom provides less than the full amount of the Medical
Benefits pursuant to Section 1 of this Side Letter, Cablecom shall be deemed to
have satisfied the obligation of NTL Europe under the NTL Europe Employment
Agreement to provide the Medical Benefits, but only to the extent of such
portion; and provided, further, that in such a case, NTL Europe shall not be
relieved of its obligations, to the extent not otherwise satisfied, to provide
the Medical Benefits.
26
3. To the extent that Cablecom does not provide the Medical Benefits
and NTL Europe does not then sponsor a group health plan pursuant to which the
Medical Benefits may be provided, NTL Europe shall reimburse the Executive for
the cost of a stand-alone insurance policy to provide the Medical Benefits. Such
reimbursement shall not exceed $2,000 per month. Any coverage provided pursuant
to such a stand-alone insurance policy shall be deemed to have satisfied
Cablecom's obligation to provide the Medical Benefits under this Side Letter and
NTL Europe's obligation to provide the Medical Benefits under the NTL Europe
Employment Agreement.
4. This Side Letter shall constitute an amendment of the NTL Europe
Employment Agreement and the Cablecom Employment Agreement to the extent set
forth herein. Except as otherwise provided herein, the terms and conditions of
the NTL Europe Employment Agreement and the Cablecom Employment Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Side Letter effective as
of the date first written above.
NTL EUROPE, INC. CABLECOM GMBH
/s/ J. Xxxxxxx Xxxxx /s/ J. Xxxxxxx Xxxxx
------------------------------------- -------------------------------------
By: J. Xxxxxxx Xxxxx By: J. Xxxxxxx Xxxxx
-------------------------------- --------------------------------
Its: President Its: Director
------------------------------- --------------------------------
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx
27
