VIRGIN MEDIA INC. RESTRICTED STOCK AGREEMENT
Exhibit
10.4
RESTRICTED STOCK AGREEMENT,
dated as of July 3, 2009, between Virgin Media Inc., a Delaware corporation (the
“Company”), and Xxxx Xxxxxxx (the “Executive”).
WHEREAS,
the Compensation Committee of the Board of Directors of the Company (the
“Compensation Committee”) wishes to grant to the Executive, and the Executive
wishes to accept from the Company, shares of common stock of the Company, par
value $0.01 per share (the “Restricted Stock”), to be granted pursuant to the
Virgin Media Inc. 2006 Stock Incentive Plan (the “Plan”);
NOW,
THEREFORE, the parties hereto agree as follows:
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1.
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Grant of Restricted
Stock.
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The
Company hereby grants to the Executive, and the Executive hereby accepts from
the Company, 375,000 shares of Restricted Stock on the terms and conditions set
forth in this Agreement. This Agreement is also subject to the terms
and conditions set forth in the Plan. Capitalized terms used but not
defined herein shall have the meanings set forth in the Plan.
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2.
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Rights of Executive.
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Except as
otherwise provided in this Agreement, the Executive shall be entitled, at all
times on and after the date that the shares of Restricted Stock are issued, to
exercise all the rights of a stockholder with respect to the shares of
Restricted Stock (whether or not the Transfer Restrictions thereon shall have
lapsed), including the right to vote the shares of Restricted Stock and the
right, subject to Section 6 hereof, to receive dividends
thereon. Notwithstanding the foregoing, prior to the Lapse Date (as
defined below), the Executive shall not be entitled to transfer, sell, pledge,
hypothecate, assign, or otherwise dispose of or encumber, the shares of
Restricted Stock (collectively, the “Transfer Restrictions”). The
Executive hereby acknowledges that the Company may set policies from time to
time on minimum stock holdings of its key executives and such policies, as in
effect from time to time, may restrict transfers of vested shares by the
Executive. The Executive agrees to comply with these policies and the
Company’s xxxxxxx xxxxxxx policy as in effect from time to time.
3. Vesting and Lapse of
Transfer Restrictions.
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3.1
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The
Transfer Restrictions on the Restricted Stock shall lapse and the
Restricted Stock granted hereunder shall vest as provided for on Exhibit A
hereto if the performance conditions set forth therein have been
attained.
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3.2
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Notwithstanding
anything to the contrary provided in the Plan or otherwise, the Transfer
Restrictions on all of the shares of Restricted Stock granted hereunder
and then outstanding shall not lapse and such shares of Restricted Stock
shall not vest solely due to the occurrence of an Acceleration
Event.
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4. Escrow and Delivery of
Shares.
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4.1
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Certificates
representing the shares of Restricted Stock shall be issued and held by
the Company in escrow and shall remain in the custody of the Company until
their delivery to the Executive or the Executive’s estate as set forth in
Section 4.2 hereof, subject to the Executive’s delivery of any documents
which the Company in its discretion may require as a condition to the
issuance of shares and the delivery of shares to the Executive or the
Executive’s estate.
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4.2
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Certificates
representing those shares of Restricted Stock in respect of which the
Transfer Restrictions have lapsed pursuant to Section 3 hereof shall be
delivered to the Executive as soon as practicable following the Lapse
Date, provided that the Executive has satisfied all applicable Withholding
Tax requirements with respect to the Restricted
Stock.
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4.3
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The
Executive may receive, hold, sell, or otherwise dispose of those shares
delivered to the Executive pursuant to Section 4.2 free and clear of the
Transfer Restrictions, but subject to compliance with all federal and
state securities laws.
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4.4
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Prior
to the Lapse Date, each stock certificate evidencing shares of Restricted
Stock shall bear a legend in substantially the following
form:
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“This
certificate and the shares of stock represented hereby are subject to the terms
and conditions (including forfeiture, restrictions against transfer and rights
of repurchase, if applicable) contained in the Restricted Stock Agreement (the
“Agreement”) between the registered owner of the shares represented hereby and
the Company. Release from such terms and conditions shall be made
only in accordance with the provisions of the Agreement, a copy of which is on
file in the office of the Secretary of Virgin Media Inc..”
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4.5
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As
soon as practicable following the Lapse Date, the Company shall issue new
certificates in respect of the shares that have vested as of the Lapse
Date which shall not bear the legend set forth in Section 4.4, which
certificates shall be delivered in accordance with Section 4.2
hereof.
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5.
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Effect of Termination
of Employment for any
Reason.
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Upon
termination of the Executive’s employment with the Company and its Affiliates,
if applicable, for any reason, the Executive shall forfeit the shares of
Restricted Stock which are then subject to the Transfer Restrictions, and, from
and after such forfeiture, such shares of Restricted Stock shall cease to be
outstanding and the Executive shall have no rights with respect thereto;
provided, that, if the Executive’s employment shall terminate after the end of a
fiscal year of the Company and prior to the date of the determination as to
whether the performance conditions applicable to such fiscal year have been met,
the shares of Restricted Stock subject to vesting in respect of such fiscal year
shall remain outstanding following the termination of the Executive’s employment
and shall vest or be forfeited when such determination is made, in either case
based on such determination.
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6.
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Dividend
Rights.
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All
dividends declared and paid by the Company on shares of Restricted Stock shall
be deferred until the lapsing of the Transfer Restrictions pursuant to Section 3
hereof (and shall be subject to forfeiture upon forfeiture of the shares of
Restricted Stock as to which such deferred dividends relate). The
deferred dividends shall be held by the Company for the account of the
Executive. Upon the Lapse Date, the dividends allocable to the shares
of Restricted Stock as to which the Transfer Restrictions have lapsed shall be
paid to the Executive (without interest). The Company may require
that the Executive invest any cash dividends received in additional Restricted
Stock which shall be subject to the same conditions and restrictions as the
Restricted Stock granted under this Agreement.
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7.
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No Right to Continued Employment.
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Nothing
in this Agreement shall be interpreted or construed to confer upon the Executive
any right with respect to continuance of employment by the Company or any of its
Affiliates, nor shall this Agreement interfere in any way with the right of the
Company or any such Affiliate to terminate the Executive’s employment at any
time.
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8.
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Withholding of Taxes.
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The
Executive shall pay to the Company, or the Company and the Executive shall agree
on such other arrangements necessary for the Executive to pay, the applicable
federal, state and local income taxes required by law to be withheld (the
“Withholding Taxes”), if any, upon the vesting and delivery of the
shares. The Company shall have the right to deduct from any payment
of cash to the Executive an amount equal to the Withholding Taxes in
satisfaction of the Executive’s obligation to pay Withholding
Taxes.
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9.
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Modification
of Agreement.
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This
Agreement may be modified, amended, suspended or terminated, and any terms or
conditions may be waived, but only by a written instrument executed by the
parties hereto.
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10.
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Severability.
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Should
any provision of this Agreement be held by a court of competent jurisdiction to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full force
and effect in accordance with their terms.
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11.
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Governing
Law.
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The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of New York without giving effect to the
conflicts of laws principles thereof which might result in the application of
the laws of any other jurisdiction.
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12.
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Successors in Interest;
Transfer.
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This
Agreement shall inure to the benefit of and be binding upon any successor to the
Company. This Agreement shall inure to the benefit of the Executive’s
heirs, executors, administrators and successors. All obligations
imposed upon the Executive and all rights granted to the Company under this
Agreement shall be binding upon the Executive’s heirs, executors, administrators
and successors. This Agreement is not assignable by the
Executive.
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remainder of this page is intentionally blank.]
| VIRGIN MEDIA INC. | |||
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By:
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/s/ Xxxxx X. Xxxx | |
| Name: | Xxxxx X. Xxxx | ||
| Title: | Secretary and General Counsel | ||
ACCEPTED
AND AGREED
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx Xxxxxxx
Exhibit
A
Performance
Conditions
The
Transfer Restrictions shall lapse and the Restricted Stock granted hereunder
shall vest as follows:
Comprehensive List of
Objectives. As to the number of shares set forth below if
performance conditions relating to a comprehensive list of objectives
established by the Compensation Committee in respect of the Company’s 2009
fiscal year have been met, so long as the Executive has remained continuously
employed by the Company from the date of commencement of his employment through
December 31, 2009:
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No of Shares
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Relevant Fiscal Year
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Lapse Date
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187,500
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2009
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March
12, 2010
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Cumulative Group Simple Cash
Flow. As to the number of shares set forth below if performance
conditions relating to cumulative group simple cash flow in respect of the
fiscal years shown below, established by the Compensation Committee pursuant to
the Company’s 2009-2011 long-term incentive plan, have been met, so long as the
Executive has remained continuously employed by the Company from the date of
commencement of his employment through December 31, 2011:
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No of Shares
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Relevant Fiscal Years
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Lapse Date
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187,500
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2009
– 2011
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March
12, 2012
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