AGREEMENT
AGREEMENT (the "Agreement"), made as of July 19, 2004 (the
"Effective Date"), by and between Telewest Global, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx (Cob) Stenham (the "Director").
WHEREAS, the Director currently serves as non-executive Chairman
of the Board of Directors of the Company (the "Board");
WHEREAS, the Director and the Company wish to memorialize the
terms and conditions of the Director's continued service to the Company in
such capacity and to enter into an agreement with the Director with respect
to such appointment; and
WHEREAS, the Director wishes to continue to serve the Company in
accordance with the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Term. Subject to earlier termination as provided in Section 6,
the term of the Director's service on the Board pursuant to this Agreement
shall commence on the Effective Date and shall end on December 31, 2007
(the "Term"). The Term may be extended by the mutual agreement of the
parties.
2. Position. Subject to the terms and conditions of this
Agreement during the Term, the Company shall cause the Director to continue
to serve as non-executive Chairman of the Board ("Non-Executive Chairman"),
and the Director hereby agrees to serve the Company in that capacity.
3. Duties. During the Term, the Director shall serve as
Non-Executive Chairman, and the Director shall regularly attend and preside
at Board meetings, serve on and preside over appropriate committees as
reasonably requested by the Board, set meeting schedules and agendas,
manage information flow to the Board to assure appropriate understanding of
and discussion regarding matters of interest or concern to the Board, make
himself available to the Company at mutually convenient times and places,
attend external meetings and presentations, as appropriate and convenient,
and perform such duties, services and responsibilities and have the
authority commensurate to such position. The Director shall be permitted to
engage in other business, civic and charitable activities during the Term,
as long as such activities do not materially interfere with the performance
of his duties hereunder. During the Term, the Director shall not commence
full-time employment outside of the Company.
4. Cash Compensation.
(a) Fees. During the Term, the Company shall cause the
Director to be paid a director's fee at an annual rate of (pound)450,000,
payable in arrears in equal instalments each month (pro rata for partial
calendar months) (less required deductions).
(b) Annual Bonuses. For each calendar year ending during the
Term (pro rata for partial calendar years), the Director shall have the
opportunity to earn a bonus upon the achievement of such goals as are
established by the Board in consultation with the Director with respect to
the Senior Leadership Team.
(c) Signing Bonus. As soon as practicable after the
Effective Date, the Company shall cause the Director to be paid a signing
bonus in an amount such that, when added to the fee earned by the Director
in respect of the period of service on the Board commencing on February 18,
2004 and ending on the Effective Date, the Director shall have been paid at
an annual rate of (pound)450,000 in respect of such period.
(d) Medical Benefits. During the Term, the Company shall
provide the Director with substantially the same medical benefits, as
nearly as practicable, as provided by the Company to the Senior Leadership
Team from time to time.
(e) Expense Reimbursements. During the Term, the Company
shall reimburse the Director for all reasonable out-of-pocket expenses
incurred by the Director in carrying out the Director's duties, services
and responsibilities under this Agreement (including, without limitation,
commuting expenses to and from the Company's offices) so long as the
Director complies with the generally applicable policies, practices and
procedures of the Company for submission of expense reports, receipts or
similar documentation of such expenses.
(f) Status. The Director's status during the Term shall be
that of an independent contractor and not, for any purpose, that of an
employee or agent with authority to bind the Company in any respect.
(g) No Other Cash Compensation. The Director agrees and
acknowledges that, during the Term and thereafter, he will not receive any
cash compensation from the Company or any of its affiliates other than as
specifically provided for in this Agreement. Without limiting the
generality of the preceding sentence, the Director shall not be entitled to
standard director fees from the Company.
5. Equity Awards.
(a) Stock Options. At or as soon as practicable after the
Effective Date, the Company shall grant to the Director options to purchase
1,225,000 shares of common stock, par value $0.01 per share (the "Common
Stock"), of the Company (the "Options") pursuant to the Company's 2004
Stock Incentive Plan. The Options shall have an exercise price equal to the
exercise price of the first tranche of stock options granted to other
non-employee directors of the Company. The Option shall be evidenced by the
option agreement attached hereto as Exhibit A. Unless the Board determines
otherwise, the Director shall not be eligible to participate in the
Company's stock option program applicable to other non-employee directors
of the Company from time to time (including at the Effective Date).
(b) Restricted Stock. At or as soon as practicable after the
Effective Date, the Company shall grant the Director 367,500 shares of
restricted Common Stock pursuant to the restricted stock agreement attached
hereto as Exhibit B (or, if determined to be more advantageous to the
Director, options to purchase 367,500 shares of Common Stock at an exercise
price of $0.01 per share pursuant to a stock option agreement that contains
the same terms, as nearly as practicable, as the restricted stock
agreement).
6. Termination.
(a) Effect of Termination. Upon the termination of the
Director's service on the Board for any reason, the Director shall be
deemed to have voluntarily resigned from all other positions that the
Director may then hold with the Company and any of its subsidiaries and
affiliates (collectively, the "Company Affiliated Group"), effective upon
the date of termination of the Director's service.
(b) Termination Payments. The Company may, in its sole
discretion, terminate the Director's engagement with the Company
immediately at any time by paying to the Director a sum equal to
(pound)450,000 (the "Severance Pay"). The Severance Pay shall be paid in a
lump sum within ten days following the date of termination of the
Director's service and shall not be payable if the Director's service on
the Board is terminated during the Term by reason of the Director's death,
permanent disability, voluntary resignation (including by reason of
retirement) or the Company terminates the Director's engagement with the
Company due to the Director having committed acts constituting "cause" (as
determined by the Board). The Severance Pay shall constitute the exclusive
payments in the nature of severance or termination pay which shall be due
to the Director upon a termination of his service and shall be in lieu of
any notice or any other such payments under any plan, program, policy or
other arrangement which has heretofore been or shall hereafter be
established by any member of the Company Affiliated Group and shall be in
full and final settlement of any claims the Director may have against the
Company or any member of the Company Affiliated Group arising from the
Director's engagement by the Company or the termination thereof. The
Director shall have no obligation to mitigate any amounts payable to the
Director under this Agreement, whether by seeking employment or otherwise,
and the amount of any payment or benefit due the Director shall not be
reduced or offset by any payment or benefit that the Director may receive
from any other source.
(c) It is acknowledged that the Director may, during the
Term and thereafter, be granted rights upon the terms and subject to the
conditions of the rules from time to time of the 2004 Stock Incentive Plan
or any other profit sharing, share incentive, share option, bonus or
phantom option scheme operated by the Company or any member of the Company
Affiliated Group with respect to shares in the Company or any member of the
Company Affiliated Group. If, on termination of the Director's position
with the Company, whether lawfully or in breach of contract the Director
loses any of the rights or benefits under such scheme (including rights or
benefits which the Director would not have lost had he not been terminated)
the Director shall not be entitled, by way of compensation for loss of
office or otherwise howsoever, to any compensation for the loss of any
rights under any such scheme. Nothing set forth in this paragraph 6(c)
should be construed at the time of the Director's termination as
constituting a waiver of any express rights the Director has under the
terms of this Agreement or under any incentive scheme or a waiver of any
vested rights the Director may have under any applicable Company welfare
and benefit plan(s) or policy(s). In the event that this Agreement
expressly provides a more favorable treatment for the Director upon his
termination of employment than under any Company welfare and benefit plan
or policy, the terms of this Agreement shall control under such plan or
policy upon such termination.
7. Director Covenants.
(a) Unauthorized Disclosure. The Director agrees and
understands that in the Director's position with the Company, the Director
has been and will be exposed to and has and will receive information
relating to the confidential affairs of the Company Affiliated Group,
including, without limitation, technical information, intellectual
property, business and marketing plans, strategies, customer information,
software, other information concerning the products, promotions,
development, financing, expansion plans, business policies and practices of
the Company Affiliated Group and other forms of information considered by
the Company Affiliated Group to be confidential and in the nature of trade
secrets (including, without limitation, ideas, research and development,
know-how, formulas, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information and business and
marketing plans and proposals) (collectively, the "Confidential
Information"). The Director agrees that at all times during the Director's
service to the Company and thereafter, the Director shall not disclose such
Confidential Information, either directly or indirectly, to any individual,
corporation, partnership, limited liability company, association, trust or
other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof (each a "Person"),
without the prior written consent of the Company and shall not use or
attempt to use any such information in any manner other than in connection
with the Director's service to the Company, unless required by law to
disclose such information, in which case the Director shall provide the
Company with written notice of such requirement as far in advance of such
anticipated disclosure as possible so as to enable the Company to seek an
appropriate protective order or confidential treatment. This
confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Director's service to the Company, the
Director shall promptly supply to the Company all property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, machines, technical data and any
other tangible product or document which has been produced by, received by
or otherwise submitted to the Director during or prior to the Director's
service to the Company, and any copies thereof in the Director's (or
capable of being reduced to the Director's) possession.
(b) Non-Competition. By and in consideration of the
Company's entering into this Agreement and the payments to be made and
benefits to be provided by the Company hereunder, and in further
consideration of the Director's exposure to the Confidential Information of
the Company Affiliated Group, the Director agrees that the Director shall
not, during the Director's service to the Company (whether during the Term
or thereafter) and for a two-year period thereafter (the "Restriction
Period"), directly or indirectly, be, own, manage, operate, join, control,
be employed by, or participate in the ownership, management, operation or
control of, or be connected in any manner with, including, without
limitation, holding any position as a stockholder, director, officer,
consultant, independent contractor, employee, partner, or investor in, any
Restricted Enterprise (as defined below); provided, that in no event shall
ownership of one percent or less of the outstanding securities of any class
of any issuer whose securities are registered under the Securities Exchange
Act of 1934, as amended, standing alone, be prohibited by this Section
7(b), so long as the Director does not have, or exercise, any rights to
manage or operate the business of such issuer other than rights as a
stockholder thereof. For purposes of this Section 7(b), "Restricted
Enterprise" shall mean any Person that is engaged, directly or indirectly,
in (or intends or proposes to engage in, or has been organized for the
purpose of engaging in) the provision of video or telephone services, or
related content-generation services, in the United Kingdom. During the
two-year period following the termination of the Director's service to the
Company, upon request of the Company, the Director shall notify the Company
of the Director's then-current employment status.
(c) Non-Solicitation of Employees. During the Restriction
Period, the Director shall not directly or indirectly contact, induce or
solicit (or assist any Person to contact, induce or solicit) for
employment, other than on behalf of the Company Affiliated Group, any
person who is, or within twelve months prior to the date of such
solicitation was, an employee of any member of the Company Affiliated Group
employed as a director or in a senior or managerial position and with whom
the Director had business dealings during the course of his engagement by
the Company at any time during the 12 months immediately prior to the
Termination Date.
(d) Non-Solicitation of Customers. During the Restriction
Period, the Director shall not (i) contact, induce or solicit (or assist
any Person to contact, induce or solicit) any Person which has a business
relationship with any member of the Company Affiliated Group to terminate,
curtail or otherwise limit such business relationship, or (ii) solicit,
other than on behalf of the Company Affiliated Group, any Person that the
Director knows or should have known (x) is a current customer of any member
of the Company Affiliated Group, (y) was, within twelve months prior to the
date of such solicitation, a customer of any member of the Company
Affiliated Group or (z) is a Person with respect to which the Company or
any of its affiliates has, within the twelve months prior to the date of
such solicitation, devoted more than de minimis resources in an effort to
cause such Person to become a customer of any member of the Company
Affiliated Group and in each case where the Director had business dealings
with such Person during the course of his engagement by the Company at any
time in the 12 months immediately prior to the Termination Date.
(e) Proprietary Rights. The Director shall disclose promptly
to the Company any and all inventions, discoveries, and improvements
(whether or not patentable or registrable under copyright or similar
statutes), and all patentable or copyrightable works, initiated, conceived,
discovered, reduced to practice, or made by the Director, either alone or
in conjunction with others, during the Director's service to the Company
and related to the business or activities of any member of the Company
Affiliated Group (the "Developments"). Except to the extent any rights in
any Developments constitute a work made for hire under the U.S. Copyright
Act, 17 U.S.C. ss. 101 et seq. that are owned ab initio by the Company or
other members of the Company Affiliated Group (or both), the Director
assigns all of the Director's right, title and interest in and to all
Developments (including all intellectual property rights therein) to the
Company or its nominee without further compensation, including all rights
or benefits therefor, including, without limitation, the right to xxx and
recover for past and future infringement. The Director acknowledges that
any rights in any developments constituting a work made for hire under the
U.S. Copyright Act, 17 U.S.C ss. 101 et seq. are owned upon creation by the
Company or other members of the Company Affiliated Group. Whenever
requested to do so by the Company, the Director shall execute any and all
applications, assignments or other instruments which the Company shall deem
necessary to apply for and obtain trademarks, patents or copyrights of the
United States or any foreign country or otherwise protect the interests of
the Company Affiliated Group therein. These obligations shall continue
beyond the end of the Director's service to the Company with respect to
inventions, discoveries, improvements or copyrightable works initiated,
conceived or made by the Director while providing service to the Company
and shall be binding upon the Director's employers, assigns, executors,
administrators and other legal representatives. In connection with the
Director's execution of this Agreement, the Director has informed the
Company in writing of any interest in any inventions or intellectual
property rights that the Director holds as of the date hereof. If the
Company is unable for any reason, after reasonable effort, to obtain the
Director's signature on any document needed in connection with the actions
described in this Section 7(f), the Director hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as the
Director's agent and attorney in fact to act for and in the Director's
behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of this Section with the
same legal force and effect as if executed by the Director.
(f) Remedies. The Director agrees that any breach of the
terms of this Section 7 would result in irreparable injury and damage to
the Company for which the Company would have no adequate remedy at law; the
Director therefore also agrees that in the event of said breach or any
threat of breach, the Company shall be entitled to an immediate injunction
and restraining order to prevent such breach, any threatened breach and any
continued breach by the Director and any and all Persons acting for or with
the Director, without having to prove damages, in addition to any other
remedies to which the Company may be entitled at law or in equity. The
terms of this paragraph shall not prevent the Company from pursuing any
other available remedies for any breach or threatened breach hereof,
including, without limitation, the recovery of damages from the Director.
The Director and the Company further agree that the covenants contained in
this Section 7 are reasonable and necessary to protect the businesses of
the Company Affiliated Group because of the Director's access to
Confidential Information and the Director's material participation in the
operation of such businesses. Should a court or arbitrator determine,
however, that any provision this Section 7 is unreasonable or
unenforceable, either in period of time, geographical area, or otherwise,
the parties hereto agree that the covenant should be interpreted and
enforced to the maximum extent possible in accordance with law. The
existence of any claim or cause of action by the Director against any
member of the Company Affiliated Group, whether predicated on this
Agreement or otherwise, shall not constitute a defence to the enforcement
by the Company of the covenants contained in this Section 7.
8. Director's Representation and Acknowledgment. The Director
represents to the Company that his execution and performance of this
Agreement does not violate any agreement or obligation (whether or not
written) that he may have with or to any person or entity, including
without limitation, any prior employer.
9. Non-Waiver of Rights. The failure of a party to enforce at any
time the provisions of this Agreement or to require at any time performance
by the other party of any of the provisions hereof shall in no way be
construed to be a waiver of such provisions or to affect either the
validity of this Agreement or any part hereof, or the right of either party
to enforce each and every provision in accordance with its terms.
10. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery, by a reputable same-day or
overnight courier service (charges prepaid), by registered or certified
mail, postage prepaid, return receipt requested or by facsimile to the
recipient with a confirmation copy to follow the next day to be delivered
by personal delivery or by a reputable same-day or overnight courier
service to:
If to the Company:
Telewest Global, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: Corporate Secretary
Facsimile: x000 00 00 0 000 0000
If to the Director, at the most
recent address and facsimile
number contained in the
Company's records.
Each party shall give notice to the other party in advance of any
change to his or its address or facsimile number.
11. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, estates, successors (including,
without limitation, by way of merger) and assigns. Notwithstanding the
provisions of the immediately preceding sentence, the Director shall not
assign all or any portion of this Agreement without the prior written
consent of the Company. For purposes of this Agreement, the term "Company
Affiliated Group" shall be deemed to refer to each predecessor of, and
successor to, each member of the Company Affiliated Group (by merger or
otherwise), and the term "Board" shall be deemed to refer to the Board of
Directors or similar body of such predecessor or successor.
12. Entire Agreement. This Agreement, including the Exhibits
hereto, sets forth the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, between them as to such subject matter.
13. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part,
such provision or application shall to that extent be severable and shall
not affect other provisions or applications of this Agreement.
14. Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the internal laws of
England and Wales, without reference to the principles of conflict of laws.
All disputes, claims or proceedings between the parties relating to the
validity construction or performance of this Agreement shall be subject to
the non-exclusive jurisdiction of the County Courts or the High Court of
Justice in England to which the parties hereto irrevocably submit. Each of
the parties irrevocably consents to the award or grant of any relief in any
such proceedings before the County Court, High Court of Justice (or any
superior court) in England. The parties shall have the rights to take
proceedings in any other jurisdiction for the purposes of enforcing a
judgment or order obtained from the County Courts, or High Court of Justice
in England.
15. Data Protection. The Director consents to the Company and any
member of the Company Affiliated Group processing data relating to him at
any time (whether before, during or after the Term) for the following
purposes:
(a) performing its obligations under the Agreement
(including remuneration, payroll, pension, insurance and other benefits,
tax and national insurance obligations);
(b) the legitimate interests of the Company and any member
of the Company Affiliated Group including any sickness policy, working time
policy, investigating acts or defaults (or alleged or suspected acts or
defaults) of the Director, security, management forecasting or planning and
negotiations with the Director;
(c) processing in connection with any merger, sale or
acquisition of a company or business in which the Company or any member of
the Company Affiliated Group is involved or any transfer of any business in
which the Director performs his duties; and
(d) transferring data to countries outside the European
Economic Area for the purposes of processing by the Company in the
Company's home state.
16. Modifications. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by
the parties hereto.
17. Headings. The headings contained herein are solely for the
purposes of reference, are not part of this Agreement and shall not in any
way affect the meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written, effective as of the Effective Date.
TELEWEST GLOBAL, INC
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxx
----------------------------- ---------------------------------
Xxxxxxx (Cob) Stenham By: Xxxxx Xxxxx
Title: Corporate Secretary
Exhibit A
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 19th day of July,
2004 (the "Grant Date"), between Telewest Global, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx (Cob) Stenham (the "Optionee").
WHEREAS, the Company has adopted the Telewest Global, Inc. 2004 Stock
Incentive Plan (the "Plan") in order to grant equity compensation to (among
others) directors, officers and employees of the Company and its Subsidiary
Corporations; and
WHEREAS, the Company's Compensation Committee has determined to grant
an Option to the Optionee as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
The Company hereby grants to the Optionee the right and option (the
"Option") to purchase all or any part of an aggregate of 1,225,000 whole
Shares subject to, and in accordance with, the terms and conditions set
forth in this Agreement and in the Plan. The Option is not intended to
qualify as an Incentive Stock Option. Capitalized terms used but not
defined herein shall have the meanings set forth in the Plan. The grant of
the Option is conditioned on the execution and delivery to the Company of
the Deed of Variation of Terms of Employment, which has been separately
provided to the Optionee.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase Shares
upon the exercise of the Option shall be $13.70 per Share (the "Option
Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten years from the Grant Date (the "Term");
provided, however, that the Option may terminate earlier as provided in
Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to Sections 4.2 and 6 hereof and to the Plan, the
Option shall vest and become exercisable as follows:
(i) as to 20% of the aggregate number of Shares subject to the
Option set forth in Section 1 of this Agreement, on the
first anniversary of the Grant Date, subject to the
satisfaction of performance goals established by the
Committee in respect of the period beginning on the Grant
Date and ending on the first anniversary of the Grant Date;
(ii) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the second anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
first anniversary of the Grant Date and ending on the second
anniversary of the Grant Date;
(iii) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the third anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
second anniversary of the Grant Date and ending on the third
anniversary of the Grant Date;
(iv) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the fourth anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
third anniversary of the Grant Date and ending on the fourth
anniversary of the Grant Date; and
(v) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the fifth anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
fourth anniversary of the Grant Date and ending on the fifth
anniversary of the Grant Date;
provided, however, that in the event that any portion of the Option subject
to any of clauses (i) through (v) of this Section 4.1 does not become
exercisable during the period set forth therein, such portion of the Option
shall be carried forward for vesting during future one-year periods
commencing immediately following the fifth anniversary of the Grant Date
subject to the satisfaction of performance goals established by the
Committee in respect of such one-year periods; provided, further, that no
more than 20% of the aggregate number of Shares subject to the Option set
forth in Section 1 of this Agreement shall vest and become exercisable in
any one-year period by reason of application of clauses (i) through (v) of
this Agreement or the foregoing proviso (by way of example, if the Shares
subject to clause (i) of this Section 4.1 do not become exercisable on the
first anniversary of the Grant Date, such portion of the Option shall vest
and become exercisable on the sixth anniversary of the Grant Date, subject
to the satisfaction of performance goals established by the Committee in
respect of the period beginning on the fifth anniversary of the Grant Date
and ending on the sixth anniversary of the Grant Date); and provided,
further, that, notwithstanding any provision of this Section 4.1 to the
contrary, any unvested portion of the Option that is outstanding as of
January 18, 2011 shall vest on that date.
4.2 Upon the occurrence of an Acceleration Event, 50% of the
unvested portion of the Option shall immediately vest and become fully
exercisable. Notwithstanding any provision to the contrary set forth in the
Plan, the remaining unvested portion of the Option after application of the
immediately preceding sentence shall not vest or become exercisable in the
event of an Acceleration Event if, in connection with such Acceleration
Event, the Company, a successor to the Company or the ultimate parent of
the Company or such successor following such Acceleration Event offers to
continue the employment of the Optionee and to provide compensation and
employee benefits that, in the aggregate, are substantially similar, as
nearly as practicable, to the compensation and employee benefits provided
to him or her immediately prior to the Acceleration Event (in each case
excluding equity compensation). If such an offer is not made to the
Optionee, such remaining unvested portion of the Option at the time of the
Acceleration Event shall immediately vest and become fully exercisable.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Option may be exercised by delivery of written notice to the
Company at its principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the
person or persons exercising the Option. If requested by the Committee,
such person or persons shall (i) deliver this Agreement to the Secretary of
the Company who shall endorse on this Agreement a notation of such exercise
and (ii) provide satisfactory proof as to the right of such person or
persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full purchase price for the Shares in respect of which
the Option is being exercised, in cash or by check or, if indicated in the
notice, such payment shall follow by check from a registered broker acting
as agent on behalf of the Optionee.
5.3 Upon receipt of notice of exercise, full payment for the
Shares in respect of which the Option is being exercised, and full
satisfaction of the Optionee's obligation for Withholding Taxes (as
hereinafter defined), the Company shall take such action as may be
necessary to effect the transfer to the Optionee of the number of Shares
subject to such exercise.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares.
6. Termination of Employment.
6.1 Upon termination of the Optionee's employment with the
Company and its Affiliates for any reason, any portion of the Option which
is not exercisable as of the date of such termination shall be
automatically forfeited as of the date of such termination. Upon
termination of the Optionee's employment for Cause, any unexercised portion
of the Option (whether exercisable or not exercisable) shall be
automatically forfeited as of the date of such termination.
6.2 Upon termination of the Optionee's employment with the
Company and its Affiliates for any reason other than for Cause, the portion
of the Option that is exercisable as of the date of such termination shall
remain exercisable for sixty days following the date of such termination
(but not beyond the end of the Term); provided, however, that any portion
of the Option that has become exercisable pursuant to Section 4.2 of the
Agreement by reason of an Acceleration Event shall remain exercisable for
one year following the date of such termination (but not beyond the end of
the Term).
7. Non-transferability.
The Option shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order (within the meaning of Rule 16a-12 promulgated under the Exchange
Act). During the lifetime of the Optionee, the Option shall be exercisable
only by the Optionee or his or her legal guardian or legal representatives.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to continuance
of employment by the Company or any Subsidiary Corporation, nor shall this
Agreement or the Plan interfere in any way with the right of the Company or
any such Subsidiary Corporation to terminate the Optionee's employment at
any time. For purposes of this Agreement, the term "employment" shall be
deemed to refer to (i) an Optionee's employment, if the Optionee is an
employee of the Company or any of its Affiliates, (ii) an Optionee's
services as a consultant, if the Optionee is a consultant to the Company or
any of its Affiliates and (iii) an Optionee's services as an non-employee
director, if the Optionee is a non-employee member of the Board. The rights
and obligations of an Optionee under the terms and conditions of the
Optionee's office or employment shall not be affected by his or her
participation in the Plan or any right he or she may have to participate in
the Plan. The Optionee waives all and any rights to compensation or damages
in consequence of the termination of his or her office or employment with
the Company and its Affiliates for any reason whatsoever insofar as those
rights arise, or may arise, from his or her ceasing to have rights under or
be entitled to exercise the Option as a result of such termination or from
the loss or diminution in value of such rights or entitlements. If
necessary, the Optionee's terms of employment shall be varied accordingly.
9. Withholding of Taxes.
The Company shall have the right to deduct from any payment of cash to
the Optionee an amount equal to the federal, state, local and non-U.S.
income taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to the exercise or other settlement
of the Option. The Optionee shall make arrangements satisfactory to the
Company to pay the Withholding Taxes to the Company prior to the issuance
of any Shares subject to the Option or other payment or distribution made
pursuant to the Option.
10. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees that the Optionee and the Option shall be bound by all the terms and
provisions thereof.
11. Modification of Agreement.
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.
12. Severability.
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 in accordance with their terms.
13. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
14. Successors in Interest.
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
Optionee's heirs, executors, administrators and successors. All obligations
imposed upon the Optionee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Optionee's heirs,
executors, administrators and successors.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Agreement,
effective as of the Grant Date.
TELEWEST GLOBAL, INC
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxx
----------------------------- ---------------------------------
Optionee By: Xxxxx Xxxxx
Its: Corporate Secretary
Exhibit B
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 19th day of July,
2004 (the "Grant Date"), between Telewest Global, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx (Cob) Stenham (the "Optionee").
WHEREAS, the Company has adopted the Telewest Global, Inc. 2004 Stock
Incentive Plan (the "Plan") in order to grant equity compensation to (among
others) directors, officers and employees of the Company and its Subsidiary
Corporations; and
WHEREAS, the Company's Compensation Committee has determined to grant
an Option to the Optionee as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
The Company hereby grants to the Optionee the right and option (the
"Option") to purchase all or any part of an aggregate of 367,500 whole
Shares subject to, and in accordance with, the terms and conditions set
forth in this Agreement and in the Plan. The Option is not intended to
qualify as an Incentive Stock Option. Capitalized terms used but not
defined herein shall have the meanings set forth in the Plan. The grant of
the Option is conditioned on the execution and delivery to the Company of
the Deed of Variation of Terms of Employment, which has been separately
provided to the Optionee.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase Shares
upon the exercise of the Option shall be $0.01 per Share (the "Option
Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten years from the Grant Date (the "Term");
provided, however, that the Option may terminate earlier as provided in
Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to Sections 4.2 and 6 hereof and to the Plan, the
Option shall vest and become exercisable as follows:
(vi) as to 20% of the aggregate number of Shares subject to the
Option set forth in Section 1 of this Agreement, on the
first anniversary of the Grant Date, subject to the
satisfaction of performance goals established by the
Committee in respect of the period beginning on the Grant
Date and ending on the first anniversary of the Grant Date;
(vii) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the second anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
first anniversary of the Grant Date and ending on the second
anniversary of the Grant Date;
(viii) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the third anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
second anniversary of the Grant Date and ending on the third
anniversary of the Grant Date;
(ix) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the fourth anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
third anniversary of the Grant Date and ending on the fourth
anniversary of the Grant Date; and
(x) as to an additional 20% of the aggregate number of Shares
subject to the Option set forth in Section 1 of this
Agreement, on the fifth anniversary of the Grant Date,
subject to the satisfaction of performance goals established
by the Committee in respect of the period beginning on the
fourth anniversary of the Grant Date and ending on the fifth
anniversary of the Grant Date;
provided, however, that in the event that any portion of the Option subject
to any of clauses (i) through (v) of this Section 4.1 does not become
exercisable during the period set forth therein, such portion of the Option
shall be carried forward for vesting during future one-year periods
commencing immediately following the fifth anniversary of the Grant Date
subject to the satisfaction of performance goals established by the
Committee in respect of such one-year periods; provided, further, that no
more than 20% of the aggregate number of Shares subject to the Option set
forth in Section 1 of this Agreement shall vest and become exercisable in
any one-year period by reason of application of clauses (i) through (v) of
this Agreement or the foregoing proviso (by way of example, if the Shares
subject to clause (i) of this Section 4.1 do not become exercisable on the
first anniversary of the Grant Date, such portion of the Option shall vest
and become exercisable on the sixth anniversary of the Grant Date, subject
to the satisfaction of performance goals established by the Committee in
respect of the period beginning on the fifth anniversary of the Grant Date
and ending on the sixth anniversary of the Grant Date); and provided,
further, that, notwithstanding any provision of this Section 4.1 to the
contrary, any unvested portion of the Option that is outstanding as of
January 18, 2011 shall vest on that date.
4.2 Upon the occurrence of an Acceleration Event, 50% of the
unvested portion of the Option shall immediately vest and become fully
exercisable. Notwithstanding any provision to the contrary set forth in the
Plan, the remaining unvested portion of the Option after application of the
immediately preceding sentence shall not vest or become exercisable in the
event of an Acceleration Event if, in connection with such Acceleration
Event, the Company, a successor to the Company or the ultimate parent of
the Company or such successor following such Acceleration Event offers to
continue the employment of the Optionee and to provide compensation and
employee benefits that, in the aggregate, are substantially similar, as
nearly as practicable, to the compensation and employee benefits provided
to him or her immediately prior to the Acceleration Event (in each case
excluding equity compensation). If such an offer is not made to the
Optionee, such remaining unvested portion of the Option at the time of the
Acceleration Event shall immediately vest and become fully exercisable.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Option may be exercised by delivery of written notice to the
Company at its principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the
person or persons exercising the Option. If requested by the Committee,
such person or persons shall (i) deliver this Agreement to the Secretary of
the Company who shall endorse on this Agreement a notation of such exercise
and (ii) provide satisfactory proof as to the right of such person or
persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full purchase price for the Shares in respect of which
the Option is being exercised, in cash or by check or, if indicated in the
notice, such payment shall follow by check from a registered broker acting
as agent on behalf of the Optionee.
5.3 Upon receipt of notice of exercise, full payment for the
Shares in respect of which the Option is being exercised, and full
satisfaction of the Optionee's obligation for Withholding Taxes (as
hereinafter defined), the Company shall take such action as may be
necessary to effect the transfer to the Optionee of the number of Shares
subject to such exercise.
5.4 The Optionee shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Optionee shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Optionee, and (iii) the Optionee's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares.
6. Termination of Employment.
6.1 Upon termination of the Optionee's employment with the
Company and its Affiliates for any reason, any portion of the Option which
is not exercisable as of the date of such termination shall be
automatically forfeited as of the date of such termination. Upon
termination of the Optionee's employment for Cause, any unexercised portion
of the Option (whether exercisable or not exercisable) shall be
automatically forfeited as of the date of such termination.
6.2 Upon termination of the Optionee's employment with the
Company and its Affiliates for any reason other than for Cause, the portion
of the Option that is exercisable as of the date of such termination shall
remain exercisable for sixty days following the date of such termination
(but not beyond the end of the Term); provided, however, that any portion
of the Option that has become exercisable pursuant to Section 4.2 of the
Agreement by reason of an Acceleration Event shall remain exercisable for
one year following the date of such termination (but not beyond the end of
the Term).
7. Non-transferability.
The Option shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order (within the meaning of Rule 16a-12 promulgated under the Exchange
Act). During the lifetime of the Optionee, the Option shall be exercisable
only by the Optionee or his or her legal guardian or legal representatives.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to continuance
of employment by the Company or any Subsidiary Corporation, nor shall this
Agreement or the Plan interfere in any way with the right of the Company or
any such Subsidiary Corporation to terminate the Optionee's employment at
any time. For purposes of this Agreement, the term "employment" shall be
deemed to refer to (i) an Optionee's employment, if the Optionee is an
employee of the Company or any of its Affiliates, (ii) an Optionee's
services as a consultant, if the Optionee is a consultant to the Company or
any of its Affiliates and (iii) an Optionee's services as an non-employee
director, if the Optionee is a non-employee member of the Board. The rights
and obligations of an Optionee under the terms and conditions of the
Optionee's office or employment shall not be affected by his or her
participation in the Plan or any right he or she may have to participate in
the Plan. The Optionee waives all and any rights to compensation or damages
in consequence of the termination of his or her office or employment with
the Company and its Affiliates for any reason whatsoever insofar as those
rights arise, or may arise, from his or her ceasing to have rights under or
be entitled to exercise the Option as a result of such termination or from
the loss or diminution in value of such rights or entitlements. If
necessary, the Optionee's terms of employment shall be varied accordingly.
9. Withholding of Taxes.
The Company shall have the right to deduct from any payment of cash to
the Optionee an amount equal to the federal, state, local and non-U.S.
income taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to the exercise or other settlement
of the Option. The Optionee shall make arrangements satisfactory to the
Company to pay the Withholding Taxes to the Company prior to the issuance
of any Shares subject to the Option or other payment or distribution made
pursuant to the Option.
10. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan and
agrees that the Optionee and the Option shall be bound by all the terms and
provisions thereof.
11. Modification of Agreement.
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.
12. Severability.
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 in accordance with their terms.
13. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
14. Successors in Interest.
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
Optionee's heirs, executors, administrators and successors. All obligations
imposed upon the Optionee and all rights granted to the Company under this
Agreement shall be final, binding and conclusive upon the Optionee's heirs,
executors, administrators and successors.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Agreement,
effective as of the Grant Date.
TELEWEST GLOBAL, INC
/s/ Xxxxxxx Xxxxxxx /s/ Xxxxx Xxxxx
----------------------------- ---------------------------------
Optionee By: Xxxxx Xxxxx
Its: Corporate Secretary
