EXHIBIT 10.27
EXECUTION COPY
SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") is entered into between Xxxxx X.
Xxxxxxx (the "Executive") and NTL Incorporated (the "Company") as of June 27,
2003.
W I T N E S S E T H
WHEREAS, the Executive is currently employed by the Company pursuant to
an employment agreement, dated January 10, 2003, that is attached hereto as
Exhibit A (the "Employment Agreement");
WHEREAS, the Company and the Executive agree that the Executive's
employment will terminate on August 15, 2003 (the "Termination Date");
WHEREAS, the Executive and the Company wish to outline the terms and
conditions of a termination of the Executive's employment on the Termination
Date, so that the Executive and the Company can settle, fully and finally, all
matters between them; and
NOW THEREFORE, the Executive and the Company, intending to be legally
bound, hereby agree as follows:
1. EFFECTIVENESS. This Agreement will become effective as of the
date hereof; provided that if the Executive either does not sign the release
attached hereto as Exhibit B (the "Release") on, or within the eight calendar
days prior to, the Termination Date, or revokes the Executive's consent to the
Release under Paragraph 4(b) of the Release within the seven calendar days
following the signing of the Release, the Company shall not be obligated to make
the payments sets forth in Paragraphs 2(b), 2(d) and 2(e) of this Agreement.
Provided that the Executive does not revoke the Executive's consent to the
Release, the term "Payment Date" will mean the eighth calendar day after the
date on which the Executive signs the Release.
2. TERMINATION OF EMPLOYMENT; SEVERANCE.
(a) The Company agrees that, unless earlier terminated as
provided herein, the Company shall continue to employ the Executive at the
Executive's current location, to pay the Executive's "Base Salary" (as defined
in the Employment Agreement) at the rate in effect as of the date of this
Agreement, to reimburse the Executive for all reasonable business expenses,
incurred in connection with the Executive's duties, pursuant to the Company's
policies, and to allow the Executive to participate in the Company's benefit
programs until the Termination Date, upon which date the Executive's employment
with the Company and its affiliates shall cease; provided, however, that nothing
herein shall impair the Company's right to terminate the Executive's employment
for "Cause" (as defined in the Employment Agreement and modified herein) prior
to the Termination Date or the Executive's right to terminate the Executive's
employment for a "Constructive Termination Without Cause" (as defined in the
Employment Agreement and modified herein). As of the date of this Agreement, the
Company is not aware of any events, omissions or circumstances, individually or
in the aggregate, constituting Cause under the Employment Agreement with respect
to the Executive. The
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Executive acknowledges and agrees that (i) the Executive is not aware of any
events, omissions or circumstances that have occurred on or prior to the date of
this Agreement which, individually or in the aggregate, constitute a
"Constructive Termination Without Cause" under the Employment Agreement and (ii)
no diminution of the Executive's title, position, duties or authorities which
may occur following the date of this Agreement shall, individually or in the
aggregate, constitute a Constructive Termination Without Cause if such
diminution occurs as a result of the transitioning of the Executive's title,
position, duties or authorities to a successor. Further, the Executive's failure
to perform duties which are inconsistent with the Executive's title, position,
duties or authorities as set forth in the Employment Agreement shall not
constitute Cause; provided, however, that the Executive acknowledges and agrees
that the transitioning of the Executive's title, position, duties or authorities
to a successor is not inconsistent with the Executive's title, position, duties
or authorities as set forth in the Employment Agreement.
(b) The Company acknowledges that the Executive is a
participant in the Company's annual bonus program (the "Bonus Plan"). Exhibit C
hereto sets forth the performance goals under the Bonus Plan applicable to the
period commencing January 1, 2003 and ending June 30, 2003 and the potential
amounts that may become payable to the Executive based on the extent to which
such performance goals are achieved. The Company shall use commercially
reasonable efforts to determine, prior to the Payment Date, the extent to which
the Company has achieved such performance goals. In the event that such efforts
fail, the Company will make such determination as soon thereafter as
practicable. The date upon which the Company makes such determination is the
"Bonus Determination Date." In the event that, pursuant to the terms of the
Bonus Plan, the Executive becomes entitled to a payment in respect of the
six-month period ending June 30, 2003, the Company shall pay such amount to the
Executive on the "Bonus Payment Date." The Bonus Payment Date shall be the later
of the Payment Date or ten business days following the Bonus Determination Date.
The Executive hereby waives any right to a bonus of any kind relating to the
period between July 1, 2003 and the Termination Date. Such bonus shall be paid
as follows: (i) one-half in cash and (ii) one-half in shares of Company common
stock having a "Fair Market Value" (as defined below) equal to one-half of such
bonus. The Company shall issue, on the Bonus Payment Date, an instruction to the
Company's transfer agent, authorizing such transfer agent to deliver immediately
such shares to the Executive. For purposes of the foregoing, "Fair Market Value"
shall mean the closing price of the Company's common stock as quoted on the
NASDAQ Stock Market quotation system on the last business day prior to the Bonus
Payment Date.
(c) Upon any termination of the Executive's employment
with the Company and its affiliates, the Company shall pay to the Executive (or
the Executive's estate, if applicable) any earned but unpaid portion of the
Executive's Base Salary, any unpaid business expenses incurred prior to the
termination of employment in accordance with Company policy, vacation pay as
determined and calculated by Paragraph 9 of this Agreement, and any benefits
that may be due to the Executive (or the Executive's estate, if applicable)
under any employee benefit plans of the Company, including benefits which may
become payable upon a termination of the Executive's employment by reason of the
Executive's death or because the Executive has become "Disabled" (as defined in
the Employment Agreement).
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(d) If the Executive is employed through the Termination
Date or if, prior to the Termination Date, the Company terminates the
Executive's employment other than for "Cause" (as defined in the Employment
Agreement and modified herein) or a "Constructive Termination Without Cause" (as
defined in the Employment Agreement and modified herein) occurs, the Company
shall (i) pay to the Executive on the Payment Date any Base Salary earned, or
which would have been earned, through the Termination Date; (ii) pay to the
Executive on the Payment Date a lump sum cash payment equal to three times the
Executive's Base Salary; (iii) at the Executive's election (which the Executive
must make on or prior to August 1, 2003), and in satisfaction of the Company's
obligations, if any, under the statutory scheme commonly known as "COBRA,"
either (x) provide continued medical benefits covering the Executive and the
Executive's qualifying dependents under a Company group health plan currently
covering employees as provided in Paragraph 4 of Exhibit E attached hereto (the
"Group Health Plan"), with the Company to pay for such coverage for the period
commencing August 16, 2003 through August 15, 2004 and the Executive to pay for
such coverage from August 16, 2004 through February 15, 2005; provided, however,
that in the event that the Company's insurance carrier terminates such coverage,
the Company agrees to pay to the Executive a pro rata portion of the Cash
Payment Option (as defined below) from the date upon which the insurance carrier
terminates such coverage through August 15, 2004; or (y) pay on the Payment Date
an amount in cash equal to the sum of (1) the total annual premium, as in effect
on the date of execution of this Agreement, payable with respect to the
Executive's current medical benefits coverage (including coverage with respect
to the Executive's qualifying dependents) under the Group Health Plan plus (2)
an amount equal to fifty percent (50%) of the amount described under clause (1)
above (the "Cash Payment Option"); and (iv) furnish to the escrow agent
specified in that certain escrow agreement, dated April 16, 2003, among the
Company and certain Company executives, including the Executive (the "Escrow
Agreement"), an instruction in the form attached hereto as Exhibit D on the
Payment Date; provided, however, that, in the event of the Executive's death
prior to the date on which such shares are released, such shares shall be issued
to the Executive's beneficiary or estate, as applicable.
(e) In the event that, prior to the Termination Date, the
Executive terminates the Executive's employment with the Company and its
affiliates for any reason, in addition to any other payments or benefits to
which the Executive is entitled under Company benefit plans or otherwise, the
Executive and the Executive's qualified dependants shall be entitled to the
benefits set forth in Paragraph 2(d)(iii) of this Agreement. In the event that,
prior to the Termination Date, the Executive's employment with the Company is
terminated due to the Executive's death, in addition to any other payments or
benefits to which the Executive is entitled under Company benefit plans or
otherwise, the Executive and the Executive's qualified beneficiaries or estate,
as applicable, shall be entitled to the benefits set forth in Paragraphs
2(d)(i), (iii) and (iv) and in Paragraph 2(d)(ii) less any amounts received by
the Executive's estate pursuant to any death benefits under any plans, programs,
policies and arrangements of the Company as are then in effect. In the event
that the Executive dies, the legal representative of the Executive's estate
shall execute the Release on behalf of the Executive's estate.
(f) Contemporaneously with the execution of this
Agreement, the Executive shall execute and deliver a letter in the form attached
hereto as Exhibit E, resigning as of the Termination Date from any and all
boards and office or director positions, if any, with the
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Company and any of its parents, subsidiaries or affiliates, and any other
documents necessary to effectuate such resignation.
3. EXECUTIVE'S COVENANTS, CONFIDENTIALITY.
(a) The Executive reaffirms, and agrees to comply with,
all of the Executive's obligations in Section 7(h) and Section 9 of the
Employment Agreement. Notwithstanding the foregoing, nothing in Section 9 of the
Employment Agreement or Paragraph 3(b) of this Agreement shall prohibit the
Executive from disclosing the conditions of the Executive's separation from the
Company.
(b) The Executive also agrees to keep confidential the
terms and conditions of this Agreement, except that the Executive may disclose
such information (i) as may be required in the course of obtaining legal advice
with respect to the rights and obligations created hereby, (ii) as may be
required in the preparation of foreign, federal, state or local tax returns,
(iii) as may be needed to explain the circumstances of the Executive's
separation from the Company, (iv) as may be required in the enforcement or
implementation of this Agreement, or (v) as may be required to respond to a
subpoena, court order or similar legal process; provided, however, that prior to
making any such disclosure, the Executive shall provide the Company with written
notice of the subpoena, court order or similar legal process sufficiently in
advance of such disclosure to afford the Company a reasonable opportunity to
challenge the subpoena, court order or similar legal process.
4. NO ADMISSION OF WRONGDOING. Nothing herein is to be deemed to
constitute an admission of wrongdoing by the Company or any of the other Company
Releasees (as defined in Exhibit B) or the Executive.
5. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The Executive
acknowledges that (i) the Company has advised the Executive of the Executive's
right to consult with an attorney of the Executive's choosing prior to signing
this Agreement, (ii) the Executive has consulted with an attorney regarding the
terms of this Agreement prior to executing it, (iii) the Executive has carefully
read and fully understands all of the provisions of this Agreement and (iv) the
Executive is entering into this Agreement knowingly, freely and voluntarily in
exchange for good and valuable consideration.
6. STOCK OPTIONS. The Executive acknowledges that the Executive
has received the Non-Qualified and Incentive Stock Option Notice, dated April
11, 2003, attached hereto as Exhibit F (the "Stock Option Notice") and there are
no other option grants to which the Executive is entitled.
7. FORM S-8; OPINIONS OF COUNSEL.
(a) The Company agrees that, if it has not already done
so, as soon as possible following the date hereof, it will file a Form S-8,
pursuant to the Securities Act of 1933, as amended, to register the shares of
the Company's common stock that (i) have been issued pursuant to payment of the
Consummation Bonus (within the meaning of Section 4(a) of the Employment
Agreement) and currently held in escrow pursuant to the Escrow Agreement, (ii)
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may be issued as partial payment of the Executive's bonus pursuant to Section
2(b) hereof and (iii) may be issued upon the exercise of the option evidenced by
the Stock Option Notice (subparagraphs (a)(i)-(iii) of this Paragraph 7 being
collectively, the "Company Shares").
(b) Prior to the Termination Date, the Company shall
obtain, at the Company's sole expense, an opinion from the Company's counsel to
the effect that the Company Shares are, or will be when issued, (i) validly
issued, fully paid and non-assessable and (ii) not "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act of 1933, as
amended.
8. EX-XXX BENEFITS. The Company acknowledges that the Executive
has been an ex-xxx relocated from the New York office to London entitled to the
typical benefits afforded to New York based ex-pats of the Company. These
benefits are set forth on Exhibit G attached hereto.
9. UNUSED VACATION. As of June 20, 2003, the Executive is
entitled to twenty-five (25) vacation days through the Termination Date. The
Company with the mutual consent of the Executive, which consent shall not be
unreasonably withheld, shall schedule the Executive for a minimum of nine (9)
vacation days between June 20, 2003 and the Termination Date; provided, however,
that in the event that the Executive unreasonably withholds the Executive's
consent, the Company will schedule such days for the Executive at the Company's
sole discretion. As part of the Company's final paycheck to the Executive on the
Termination Date, the Company shall pay up to sixteen (16) vacation days, less
the number of vacation days taken by the Executive following June 20, 2003 in
excess of nine vacation days, at a rate equal to the product of the Executive's
Base Salary divided by 250 days.
10. WITHHOLDING. The Company shall be entitled to withhold from
amounts to be paid to the Executive hereunder any foreign, federal, state or
local withholding or other taxes which it is from time to time required by law
to withhold.
11. NO ORAL MODIFICATION; NO WAIVERS. This Agreement may not be
changed orally, but may be changed only in a writing signed by the Executive and
a duly authorized representative of the Company. The failure of the Executive or
the Company to enforce any of the terms, provisions or covenants of this
Agreement will not be construed as a waiver of the same or of the right of such
party to enforce the same. Waiver by either the Executive or the Company of any
breach or default by the other party of any term or provision of this Agreement
will not operate as a waiver of any other breach or default.
12. ASSIGNMENT. This Agreement is personal to the Executive and
may not be assigned by the Executive, and is binding on and shall inure to the
benefit of the Company and the other Company Releasees.
13. DESCRIPTIVE HEADINGS. The paragraph headings contained herein
are for reference purposes only and will not in any way affect the meaning or
interpretation of this Agreement.
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14. ENFORCEABILITY. In the event that any one or more of the
provisions of this Agreement is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remainder hereof will not in
any way be affected or impaired thereby and any such provision or provisions
will be enforced to the fullest extent permitted by law.
15. MODIFICATION OF EMPLOYMENT AGREEMENT. Sections 2, 3, 4, 5 and
6 in their entirety and Subsections (a)-(g) of Section 7 of the Employment
Agreement are hereby null and void. The remaining provisions of the Employment
Agreement shall remain in full force and effect according to their terms, as
such terms have been modified herein. For the sake of clarity, for purposes of
this Agreement, the definition of "Disabled" shall be the definition contained
in Section 7(a) of the Employment Agreement, the definition of "Constructive
Termination Without Cause" shall be the definition contained in Section 7(e)(i)
of the Employment Agreement (as modified by this Agreement) and the definition
of "Cause" shall be the definition contained in Section 7(e)(iii) of the
Employment Agreement (as modified by this Agreement).
16. ENTIRE AGREEMENT. This Agreement, the Employment Agreement (as
modified by this Agreement) and the Release set forth the entire understanding
between the Executive and the Company and supersede all prior agreements,
representations, discussions, and understandings concerning the subject matter
hereof. The Executive represents that, in executing this Agreement, the
Executive has not relied upon any representation or statement made by the
Company or any other Company Releasees, other than those set forth herein, with
regard to the subject matter, basis or effect of this Agreement or otherwise.
17. GOVERNING LAW. This Agreement shall be construed and enforced
according to the laws of the State of New York, without giving effect to its
principles of conflicts of law.
18. ATTORNEYS' FEES. In the event that the Executive brings an
action to enforce the Executive's rights under this Agreement and the Executive
prevails in any such action, the Company will reimburse the Executive for all
reasonable attorneys' fees and costs incurred by the Executive in any such
action for the claims in which the Executive prevails.
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IN WITNESS WHEREOF, the Executive and a duly authorized
representative of the Company have executed this Agreement on the dates
indicated below.
EXECUTIVE NTL INCORPORATED
/s/ Xxxxx X. Xxxxxxx 6-27-03 By: /s/ J. Xxxxxxx Xxxxx 6-18-03
--------------------- ------- --------------------------- -------
Xxxxx X. Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
EXHIBIT A
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") made as of the 10th day of January,
2003, by and between NTL Communications Corp., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Company wishes to employ the Executive as Vice President -
Senior Assistant General Counsel of the Company effective as of the "Effective
Date" (as defined in the Second Amended Joint Reorganization Plan of NTL
Incorporated and Certain Subsidiaries, dated as of July 15, 2002 (such plan, as
it may be amended or supplemented, the "Plan")); and
WHEREAS, the Executive wishes to accept such employment and to render
services to the Company on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. Effectiveness. This Agreement shall become effective as of the
Effective Date. This Agreement constitutes the "Employment Agreement" referred
to in Article IV.I. of the Plan.
2. Employment Term.
(a) The term of the Executive's employment pursuant to this
Agreement (the "Employment Term") shall commence as of the Effective Date and
shall end on December 31, 2003, unless the Employment Term terminates earlier
pursuant to Section 7 of this Agreement. The Employment Term may be extended by
mutual agreement of the Company and the Executive; provided, that the Company
shall give the Executive at least 60 days' notice prior to December 31, 2003 if
it does not intend to seek an extension of the Employment Term.
(b) Title; Duties. During the Employment Term, the Executive shall
hold the title and offices of, and serve in the position of, Vice President -
Senior Assistant General Counsel of the Company, and the Executive shall perform
such duties, services and responsibilities as are reasonably requested from time
to time by the Board of Directors of the Company (the "Board") and normal and
customary for such position. During the Employment Term, the Executive's
principal office shall be located in New York City or within 60 miles of New
York City, provided, for a period of less than one year from November 15, 2002
(the "Abroad Term"), Executive and the General Counsel may agree that Executive
will work in the Company's office located within Greater London, England.
During the Employment Term, the Executive shall devote the Executive's
full business time, attention and skill to the performance of the Executive's
duties, services and responsibilities hereunder and shall use the Executive's
best efforts to promote the interests of the Company. During the Employment
Term, the Executive will not, without the prior written approval of the Board,
engage in any other business activity which could interfere with the performance
of the Executive's duties, services and responsibilities hereunder or which is
in violation of applicable policies established from time to time by the
Company. Nothing contained in this Agreement shall preclude the Executive from
devoting a reasonable amount of time and attention during the Employment Term to
(i) serving, with the prior approval of the Board, as a director, trustee or
member of a committee of any organization; (ii) engaging in charitable and
community activities; and (iii) managing personal investments and affairs, so
long as any activities of the Executive which are within the scope of clauses
(i), (ii) and (iii) of this Section 2(b) do not interfere with the performance
of the Executive's duties, services and responsibilities hereunder.
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3. Monetary Remuneration.
(a) Base Salary. During the Employment Term, in consideration of
the performance by the Executive of the Executive's obligations hereunder to the
Company and its parents, subsidiaries, affiliates and joint ventures
(collectively, the "Company Affiliated Group") in any capacity (including any
services as an officer, director, employee, member of any Board committee or
management committee or otherwise), the Company shall pay to the Executive an
annual salary of $200,000 (the "Base Salary"). The Base Salary shall be payable
in accordance with the normal payroll practices of the Company in effect from
time to time. If the Executive provides services to members of the Company
Affiliated Group other than the Company, no additional compensation shall be
paid by any such member to the Executive, and any compensation for such services
(if any) shall be paid to the Company.
(b) Annual Cash Bonus. During each fiscal year of the Company that
the Employment Term is in effect, the Executive shall be eligible to earn a cash
bonus in the sole discretion of the Board (the "Annual Cash Bonus").
4. Equity-Based Compensation.
(a) Consummation Bonus. Not later than 10 days following the
Effective Date, the Company shall deposit into an escrow account for the benefit
of the Executive shares of common stock of the Company with a value equal to the
Base Salary, such value to be determined by reference to the volume-weighted
average price of the Company's common stock on the first five trading days with
respect to the common stock on or following the Effective Date. Such shares of
common stock shall be (a) registered at the Company's cost on a Form S-8 under
the Securities Act of 1933, as amended, as soon as practicable after the
Effective Date and (b) delivered to the Executive on the 9-month anniversary of
the Effective Date so long as (x) the
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Executive is an employee of the Company on such date or (y) the Executive's
employment has been terminated on or after the Effective Date but on or before
such date and such termination is a Termination Without Cause or a Constructive
Termination Without Cause. It is expressly acknowledged and understood that the
foregoing grant of stock is subject to approval of the board of directors (or
appropriate committee thereof) of the Company, and that the issuance of such
stock will be subject to the Company obtaining such approval.
(b) Stock Options. During the Employment Term, the Executive shall
be eligible to receive options to purchase common stock of the Company at such
exercise prices, schedules as to exercisability and other terms and conditions
as determined in the sole discretion of the Board.
5. Benefits.
(a) During the Employment Term, the Executive shall be entitled to
participate in all of the employee benefit plans, programs, policies and
arrangements (including fringe benefit and executive perquisite programs and
policies) made available by the Company to, or for the benefit of, its senior
executive officers in accordance with the terms thereof as they may be in effect
from time to time.
(b) Reimbursement of Expenses. During the Employment Term, the
Company shall reimburse the Executive for all reasonable business expenses
incurred by the Executive in carrying out the Executive's duties, services and
responsibilities under this Agreement, so long as the Executive complies with
the generally applicable policies, practices and procedures of the Company for
submission of expense reports, receipts or similar documentation of such
expenses. The Executive shall have the right to reimbursement, upon
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proper accounting, of reasonable attorney's fees not to exceed $5,000 in
connection with the negotiation and execution of this Employment Agreement.
(c) Ex-Xxx Package. During the Abroad Term, Executive and his
family shall have the right to receive the benefits of the Company's standard
ex-patriot benefits package (as applied to comparable New York based employees
of the Company) for the duration of any time Executive and his spouse live in
London, England.
6. Vacations. For each whole and partial calendar year during the
Employment Term, the Executive shall be entitled to 5 weeks of paid vacation
(prorated for any partial calendar year), to be credited and taken in accordance
with Company's policy as in effect from time to time for its similarly situated
executives.
7. Termination; Severance.
(a) Termination of Employment. The Company may terminate the
employment of the Executive without Cause upon 30 days' notice to the Executive.
In addition, the employment of the Executive shall automatically terminate as of
the date on which the Executive dies or is Disabled. For purposes of this
Agreement, the Executive shall be "Disabled" as of any date if, as of such date,
the Executive has been unable, due to physical or mental incapacity, to
substantially perform the Executive's duties, services and responsibilities
hereunder either for a period of at least 180 consecutive days or for at least
270 days in any consecutive 365-day period, whichever may be applicable. Upon
termination of the Executive's employment because the Executive dies or is
Disabled, the Company shall provide the Executive (or the Executive's estate, if
applicable) with death or disability benefits (as applicable) pursuant to the
plans, programs, policies and arrangements of the Company as are then in effect.
In addition, upon any termination of the Executive's employment during the
Employment Term, the
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Company shall pay the Executive any earned but unpaid portion of the Base Salary
and Annual Cash Bonus. Immediately following termination of the Executive's
employment for any reason, the Employment Term shall terminate.
(b) Termination Without Cause; Constructive Termination Without
Cause. Upon a Termination Without Cause or a Constructive Termination Without
Cause, the Company shall, as soon as practicable following the effectiveness of
the general release of claims set forth in Section 7(f), pay the Executive a
lump-sum severance payment of cash equal to the product of the Base Salary times
3. In addition to the foregoing, upon a Termination Without Cause or a
Constructive Termination Without Cause during the Abroad Term (if any), the
Company shall pay the reasonable relocation expenses to relocate Executive and
his Spouse (and any children) back to New York City and pay a reasonable housing
allowance, through the remainder of the Abroad Term.
(c) Termination upon Non-Renewal of the Employment Term. If (i)
the Employment Term shall end on December 31, 2003, (ii) the Executive's
employment shall terminate on or after January 1, 2004 and on or prior to
January 15, 2004 and such termination is not a termination by the Company for
Cause or by reason of the Executive having died or become Disabled and (iii) the
Executive is not, on the date of termination, a party to an employment agreement
with the Company that the parties agree therein is a successor to this
Agreement, then the Company shall, as soon as practicable following the
effectiveness of the general release set forth in Section 7(f), pay the
Executive a lump-sum severance payment of cash equal to the product of the Base
Salary times 2.
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(d) Upon a termination of the Executive's employment by the
Company for Cause, the Executive shall be entitled to earned but unpaid Base
Salary and benefits through the date of termination, and the Executive shall not
be entitled to any other payments or benefits.
(e) Upon any termination of the Executive's employment other than
by the Company for Cause, the Executive and his family shall be entitled to
continued medical benefits under (and in accordance with the terms of) the
Company's benefit plans for 1 year from the date of termination.
For purposes of this Agreement:
(i) A "Constructive Termination Without Cause" means a
termination of the Executive's employment during the Employment Term by the
Executive within 30 days following the occurrence of any of the following events
without the Executive's prior consent: (A) failure to continue the Executive in
the position set forth in Section 2(b) (excluding a promotion); or (B) any
material diminution in the Executive's working conditions, responsibilities or
authorities; (C) assignment to the Executive of duties that are inconsistent, in
a material respect, with the scope of duties and responsibilities associated
with the position set forth in Section 2(b); (D) any materially adverse change
in the reporting structure applicable to the Executive (but not including a
change in the person filling the position to which the Executive reports); (E)
relocation of the Executive's principal office to a location more than 60 miles
from New York City (or during the Abroad Term, if any, more than 50 miles from
London, England); (F) failure to grant the Executive, during the six-month
period beginning on the Effective Date, a number of options to purchase common
stock of the Company as, in the Board's discretion, is commensurate with option
grants made to similarly placed executives in comparable companies; or (G) the
failure of the Company to maintain commercially reasonable
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directors' and officers' liability insurance. The Executive shall give the
Company 10 days' notice of the Executive's intention to terminate the
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 10 days thereafter to cure such
facts and circumstances if possible.
(ii) A "Termination Without Cause" means a termination of
the Executive's employment during the Employment Term by the Company other than
for Cause.
(iii) "Cause" means (x) the Executive is convicted of, or
pleads guilty or nolo contendere to, a felony or to any crime involving fraud,
embezzlement or breach of trust; (y) the willful and continued failure of the
Executive to perform the Executive's duties hereunder (other than as a result of
physical or mental illness); or (z) in carrying out the Executive's duties
hereunder, the Executive has engaged in conduct that constitutes gross neglect
or willful misconduct, unless the Executive believed in good faith that such
conduct was in, or not opposed to, the best interests of the Company and each
member of the Company Affiliated Group. The Company shall give the Executive 10
days' notice of the Company's intention to terminate the 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. The
Executive shall have 10 days thereafter to cure such facts and circumstances if
possible. If the Board reasonably concludes that the Executive has not cured
such facts or circumstances within such time, Cause shall not be deemed to have
been established unless and until the Executive has received a hearing before
the Board (if promptly requested by the Executive) and a majority of the Board
in attendance at a meeting of the Board that occurs within 10 days of the date
of such
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hearing (if so requested) reasonably confirms the existence of Cause and the
termination of the Executive therefor. If the Executive is a member of the
Board, the Executive hereby recuses himself or herself from the deliberations
and vote of the Board at such subsequent meeting.
(f) Release; Full Satisfaction. Notwithstanding any other
provision of this Agreement, no severance pay shall become payable under this
Agreement unless and until the Executive executes a general release of claims in
form and manner satisfactory to the Company and such release has become
irrevocable; provided, that the Executive shall not be required to release any
indemnification rights. The payments to be provided to the Executive pursuant to
this Section 7 upon termination of the Executive's employment shall constitute
the exclusive payments in the nature of severance or termination pay or salary
continuation which shall be due to the Executive upon a termination of
employment and shall be in lieu of 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.
(g) Resignation as a Director. Upon termination of the Executive's
employment for any reason, the Executive shall be deemed to have resigned from
the Board and from all other boards of, and other positions with, any member of
the Company Affiliated Group, as applicable.
(h) Cooperation Following Termination. Following termination of
the Executive's employment for any reason, the 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 the
Executive's services to any member of the Company
9
Affiliated Group. The Company shall reimburse the Executive for expenses
reasonably incurred in connection with such matters.
8. Executive's Representation. The Executive represents to the
Company that the Executive's execution and performance of this Agreement does
not violate any agreement or obligation (whether or not written) that the
Executive may have with or to any person or entity including, but not limited
to, any prior employer.
9. Executive's Covenants.
(a) Confidentiality. The Executive agrees and understands that the
Executive has been, and in the Executive's position with the Company the
Executive will be, exposed to and receive information relating to the
confidential affairs of the Company Affiliated Group, including, but not limited
to, technical information, business and marketing plans, strategies, customer
(or potential customer) information, other information concerning the products,
promotions, development, financing, pricing, technology, inventions, expansion
plans, business policies and practices of the Company Affiliated Group, whether
or not reduced to tangible form, and other forms of information considered by
the Company Affiliated Group to be confidential and in the nature of trade
secrets. The Executive agrees that the Executive shall keep such information
confidential and will not disclose such information, either directly or
indirectly, to any third person or entity without the prior written consent of
the Company; provided, however, that (i) the Executive shall have no obligation
under this Section 9(a) with respect to any information that is or becomes
publicly known other than as a result of the Executive's breach of the
Executive's obligations hereunder and (ii) the Executive may (x) disclose such
information to the extent reasonable and necessary for the performance of the
Executive's duties hereunder or, (y) after giving prior notice to the
10
Company to the extent practicable, under the circumstances, disclose such
information to the extent required by applicable laws or governmental
regulations or by judicial or regulatory process. Upon termination of the
Executive's employment, the Executive 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 Executive in the course
of or otherwise in connection with the Executive's services to the Company
Affiliated Group during or prior to the Employment Term.
(b) Non-Competition and Non-Solicitation. During the period
commencing upon the Effective Date and ending on the 18-month anniversary of the
termination of the Executive's employment with the Company, the Executive shall
not, as an employee, employer, stockholder, officer, director, partner,
associate, consultant or other independent contractor, advisor, proprietor,
lender, or in any other manner or capacity (other than with respect to the
Executive's services to the Company Affiliated Group), directly or indirectly:
(i) perform services for, or otherwise have any
involvement with, a business unit of a person, where such business unit competes
directly or indirectly with any member of the Company Affiliated Group by owning
or operating (x) broadband communications networks for telephone, cable
television or internet services or (y) transmission networks for television and
radio broadcasting, in each case principally in the United Kingdom or Ireland
(the "Core Businesses"); provided, however, that this Agreement shall not
prohibit the Executive from owning up to 1% of any class of equity securities of
one or more publicly traded companies;
11
(ii) solicit or hire any individual who is, or within the
12 months prior to the Executive's termination was, an employee of any member of
the Company Affiliated Group or otherwise interfere with or disrupt the
employment relationship between any member of the Company Affiliated Group and
any such individual; or
(iii) solicit, in competition with any member of the
Company Affiliated Group in the Core Businesses, any business, or order of
business, from any person that the Executive knows was a current or prospective
customer of any member of the Company Affiliated Group during the Executive's
employment.
(c) Proprietary Rights. The Executive shall disclose promptly to
the Company any and all inventions, discoveries, improvements and patentable or
copyrightable works initiated, conceived or made by the Executive, either alone
or in conjunction with others, during or prior to the Employment Term and
related to the business or activities of any member of the Company Affiliated
Group, and the Executive assigns all of the Executive's interest therein to the
Company or its nominee. Whenever requested to do so by the Company, the
Executive 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 interest of any member of the Company Affiliated Group
therein. These obligations shall continue beyond the conclusion of the
Employment Term with respect to inventions, discoveries, improvements or
copyrightable works initiated, conceived or made by the Executive during the
Employment Term and shall be binding upon the Executive's subsequent employers,
assigns, executors, administrators and other legal representatives.
12
(d) Acknowledgment. The Executive expressly recognizes and agrees
that the restraints imposed by this Section 9 are reasonable as to time and
geographic scope and are not oppressive. The Executive further expressly
recognizes and agrees that the restraints imposed by this Section 9 represent a
reasonable and necessary restriction for the protection of the legitimate
interests of the Company Affiliated Group, that the failure by the Executive to
observe and comply with the covenants and agreements in this Section 9 will
cause irreparable harm to the Company Affiliated Group, that it is and will
continue to be difficult to ascertain the harm and damages to the Company
Affiliated Group that such a failure by the Executive would cause, that the
consideration received by the Executive for entering into these covenants and
agreements is fair, that the covenants and agreements and their enforcement will
not deprive the Executive of an ability to earn a reasonable living, and that
the Executive has acquired knowledge and skills in this field that will allow
the Executive to obtain employment without violating these covenants and
agreements. The Executive further expressly acknowledges that the Executive has
consulted independent counsel, and has reviewed and considered this Agreement
with that counsel, before executing this Agreement.
(e) Notice. The Executive shall give the Company 10 days' notice
of any claim that the Company has materially breached any material obligation
under this Agreement following the Executive's termination of employment, and
such notice shall describe the facts and circumstances in support of such claim.
The Company shall have 10 days thereafter to cure such facts and circumstances
if possible. If the Executive reasonably concludes that the Company has not
cured such facts or circumstances within such time and such facts or
circumstances exist, then this Section 9 shall cease to be of force and effect
from and after the date of such material breach.
13
10. Indemnification.
(a) To the fullest extent permitted by Delaware law, the Company
shall indemnify the Executive against, and save and hold the 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 the
Executive as a result of the Executive's service from and after the Effective
Date as an officer, director or employee of, or consultant to, any member of the
Company Affiliated Group, or in any capacity at the request of any member of the
Company Affiliated Group, 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 the 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 against the Executive, the Company
shall, to the extent permitted by applicable law, promptly pay to the Executive
all costs and expenses incurred or to be incurred by the 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 the Executive was not
entitled to indemnity hereunder, then the Executive shall repay forthwith all
amounts so advanced. The Company may not agree to any settlement or compromise
of any claim against the Executive, other than a settlement or compromise solely
for monetary damages for which the Company shall be solely
14
responsible, without the prior written consent of the 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 the
Executive shall be entitled pursuant to the Company's Certificate of
Incorporation or By-laws or otherwise.
(b) Directors' and Officers' Insurance. The Company shall use its
reasonable best efforts to maintain commercially reasonable directors' and
officers' liability insurance during the Employment Term.
11. Release of Claims. Effective as of the Effective Date, the
Executive, with the intent of binding the Executive and the Executive's heirs,
successors and assigns, hereby releases, remises, acquits and forever discharges
the Company and each member of the Company Affiliated Group, 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 the 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 the Executive prior to the Effective Date under
Company policy in effect upon the incurrence thereof and (b) any right to
indemnification applicable to periods prior to the Effective Date.
12. Miscellaneous.
(a) Non-Waiver of Rights. The failure 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
15
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. No waiver by either party hereto at any time of any breach by the other
party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar conditions or provisions at that time or at any prior or
subsequent time.
(b) Notices. All notices required or permitted hereunder will be
given in writing, by personal delivery, by confirmed facsimile transmission
(with a copy sent by express delivery) or by registered or certified mail, or by
express delivery via express mail or any reputable courier service, in each case
addressed as follows (or to such other address as may be designated):
If to the Company: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Secretary
Fax: (000) 000-0000
If to the Executive: 000 X. 00xx Xxxxxx
Xxx. 00-X
Xxx Xxxx, XX 00000
Fax: (000) 000-0000 or
(000) 000-0000 during any Abroad Term
Notices which are delivered personally, by confirmed facsimile transmission, or
by courier as aforesaid, shall be effective on the date of delivery.
(c) 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 (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise) and
assigns. Notwithstanding the provisions of the
16
immediately preceding sentence, the Executive shall not assign all or any
portion of this Agreement without the prior written consent of the Company.
(d) Withholding. The Company shall withhold or cause to be
withheld from any payments made pursuant to this Agreement all federal, state,
city or other taxes as shall be required to be withheld pursuant to any law or
governmental regulation or ruling.
(e) Entire Agreement. This Agreement constitutes the complete
understanding between the parties with respect to the Executive's employment and
supersedes any other prior oral or written agreements, arrangements or
understandings between the Executive and any member of the Company Affiliated
Group. Without limiting the generality of the Plan or Section 11 of this
Agreement or this Section 12(e), effective as of the Effective Date, this
Agreement supersedes any existing employment, retention, severance and
change-in-control agreements or similar arrangements or understandings
(collectively, the "Prior Agreements") between the Executive and the Company and
any member of the Company Affiliated Group, and any and all claims under or in
respect of the Prior Agreements that the Executive may have or assert on or
following the Effective Date shall be governed by and completely satisfied and
discharged in accordance with the terms and conditions of this Agreement. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not set forth expressly in this Agreement.
(f) 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.
17
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
reference to the principles of conflict of laws.
(h) Modifications. Neither this Agreement nor any provision hereof
may be modified, altered, amended or waived except by an instrument in writing
duly signed by the party to be charged.
(i) Number and Headings. Whenever any words used herein are in the
singular form, they shall be construed as though they were also used in the
plural form in all cases where they would so apply. The headings contained
herein are solely for purposes of reference, are not part of this Agreement and
shall not in any way affect the meaning or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in 2 or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(signature page follows)
18
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Executive has executed
this Agreement as of the day and year first above written, in each case
effective as of the Effective Date.
NTL COMMUNICATIONS CORP.
/s/ Xxxxxxx Xxxxx
-----------------------------------
By Xxxxxxx Xxxxx
--------------------------------
Its Chief Executive Officer
EXECUTIVE
___________________________________
19
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Executive has executed
this Agreement as of the day and year first above written, in each case
effective as of the Effective Date.
NTL COMMUNICATIONS CORP.
__________________________________________
By _______________________________________
Its_______________________________________
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
------------------------------------------
20
EXHIBIT B
RELEASE
This Release ("Release") is entered into between Xxxxx X. Xxxxxxx (the
"Executive") and NTL Incorporated (the "Company") on the dates indicated below.
1. EXECUTIVE RELEASE.
(a) The Executive, on behalf of the Executive, the
Executive's heirs, executors, administrators, successors and assigns, hereby
irrevocably, unconditionally, voluntarily, knowingly and willingly releases and
forever discharges the Company, its parents, their subsidiaries, divisions and
affiliates, together with their respective officers, directors, partners,
shareholders, employees, agents, attorneys and representatives, and any of their
predecessors and successors and each of their estates, heirs and assigns
(collectively, the "Company Releasees"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, rights,
costs, losses, causes of action and demands, debts or expenses of any nature
whatsoever, known or unknown, that the Executive or the Executive's heirs,
executors, administrators, successors or assigns ever had, now have or hereafter
can, will or may have against the Company or the Company Releasees by reason of
any matter, cause or thing whatsoever from the beginning of time to the date of
this Release, except as set forth in Paragraph 1(b) below, including, but not
limited to, any rights or claims relating in any way to (i) the Executive's
employment relationship with the Company or the Company's decision to terminate
the Executive's employment, (ii) all claims for attorneys' fees, punitive or
consequential damages and (iii) all claims arising under any federal, state and
local labor, employment and/or anti-discrimination laws including, without
limitation, the federal Age Discrimination in Employment Act of 1967, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1990, the Americans
with Disabilities Act of 1990, the Employee Retirement Income Security Act of
1974, the Family and Medical Leave Act of 1993, the New York State and City
Human Rights Law, each as amended, and any other federal, state, local or
foreign law or judicial decision. The Executive further agrees that the Company
does not owe the Executive any further wages, compensation or benefits, except
the wages, compensation and benefits specifically enumerated in the severance
agreement to which this Release is attached (the "Severance Agreement").
(b) Nothing in this Release shall be deemed to release
(i) the Executive's right to indemnification under Section 10 of the Employment
Agreement, or any other indemnification rights that may exist under Delaware law
or pursuant to the Company's certificate of incorporation or by-laws, (ii) the
Executive's right to any vested benefit under the Company's 401(k) plan and any
options granted pursuant to the 2003 NTL Incorporated Stock Option Plan, (iii)
the Executive's rights as set forth under the Severance Agreement, or (iv) the
Executive's rights under the NTL Tax Equalisation Policy, attached to Exhibit G
of the Severance Agreement, for the Company's 2002 and 2003 fiscal years.
(c) The Executive acknowledges and agrees that the
Company has fully satisfied any and all obligations owed to the Executive
arising out of the Executive's employment with the Company, and no further sums
are owed to the Executive by the Company
or any of the other Company Releasees, except as expressly provided in the
Severance Agreement.
(d) The Executive represents that the Executive has no
complaints, charges or lawsuits pending against the Company or any of the other
Company Releasees. The Executive acknowledges and agrees that the Executive and
the Executive's heirs, executors, administrators, successors or assigns shall
not, directly or indirectly, be entitled to any personal recovery in any lawsuit
or other claim against the Company or any other Company Releasees based on any
event arising out of the matters released in this Paragraph 1.
2. COMPANY RELEASE. The Company knowingly and willingly releases
and forever discharges the Executive from any and all charges, complaints,
claims, promises, agreements, controversies, causes of action and demands of any
nature whatsoever that the Company now has or hereafter can, shall or may have
against the Executive by reason of any matter, cause or thing whatsoever arising
from the beginning of time to the date of this Release, provided, however, that
nothing herein is intended to release any claim the Company may have against the
Executive for any illegal conduct. Notwithstanding the foregoing, the release
set forth in this paragraph shall not release the Executive from the Executive's
obligations in the Severance Agreement or any of Executive's continuing
obligations in the Employment Agreement.
3. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The Executive
acknowledges that (i) the Company has advised the Executive of the Executive's
right to consult with an attorney of the Executive's choosing prior to signing
this Release, (ii) the Executive has consulted with an attorney regarding the
terms of this Release prior to executing it, (iii) the Executive has carefully
read and fully understands all of the provisions of this Release and (iv) the
Executive is entering into this Release, including the releases set forth in
Paragraph 1 above, knowingly, freely and voluntarily in exchange for good and
valuable consideration.
4. CONSIDERATION & REVOCATION PERIOD.
(a) The Executive acknowledges that the Executive has
been given at least forty-five (45) calendar days to consider the terms of this
Release, as well as the information attached hereto.
(b) The Executive will have seven (7) calendar days from
the date on which the Executive signs this Release to revoke the Executive's
consent to this Release. The Executive shall make such revocation in writing and
shall send such writing to J. Xxxxxxx Xxxxx, NTL Incorporated, 000 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (000) 000-0000. The
Company must receive such notice of revocation within the seven (7) calendar
days referenced above. Provided that the Executive does not revoke this Release,
this Release shall become effective on the eighth calendar day after the date on
which the Executive signs this Release.
(c) In the event of a revocation under Paragraph 4(b) of
this Release by the Executive, Paragraphs 2(b), 2(d) and 2(e) of the Severance
Agreement and this Release in
2
its entirety shall become null and void. In the event the Company fails to
execute this Release, the provisions of Paragraph 1 of this Release shall become
null and void.
5. NO ADMISSION OF WRONGDOING. Nothing herein is to be deemed to
constitute an admission of wrongdoing by the Company or any of the other Company
Releasees or the Executive.
6. NO ORAL MODIFICATION; NO WAIVERS. This Release may not be
changed orally, but may be changed only in a writing signed by the Executive and
a duly authorized representative of the Company. The failure of the Executive or
the Company to enforce any of the terms, provisions or covenants of this Release
will not be construed as a waiver of the same or of the right of such party to
enforce the same. Waiver by either the Executive or the Company of any breach or
default by the other party of any term or provision of this Release will not
operate as a waiver of any other breach or default.
7. ASSIGNMENT. This Release is personal to the Executive and may
not be assigned by the Executive, and is binding on and shall inure to the
benefit of the Company and the other Company Releasees.
8. DESCRIPTIVE HEADINGS. The paragraph headings contained herein
are for reference purposes only and will not in any way affect the meaning or
interpretation of this Release.
9. ENFORCEABILITY. In the event that any one or more of the
provisions of this Release is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remainder hereof will not in any
way be affected or impaired thereby and any such provision or provisions will be
enforced to the fullest extent permitted by law.
10. ENTIRE AGREEMENT. This Release, the Severance Agreement and
the Employment Agreement (as modified by the Severance Agreement) set forth the
entire understanding between the Executive and the Company and supersede all
prior agreements, representations, discussions, and understandings concerning
the subject matter hereof. The Executive represents that, in executing this
Release, the Executive has not relied upon any representation or statement made
by the Company or any other Company Releasees, other than those set forth
herein, with regard to the subject matter, basis or effect of this Release or
otherwise.
11. GOVERNING LAW. This Release shall be construed and enforced
according to the laws of the State of New York, without giving effect to its
principles of conflicts of law.
3
IN WITNESS WHEREOF, Executive and a duly authorized representative of
the Company have executed this Release on the dates indicated below.
EXECUTIVE NTL INCORPORATED
___________________ ____ By: _______________________________ _______
Xxxxx X. Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
4
ATTACHMENT TO RELEASE
1. The decisional unit is all employees who work out of, or are affiliated
with, the New York office of the Company.
2. In connection with transferring certain functions to its United Kingdom
office, the Company has decided to reduce its New York workforce on August 15,
2003 (the "Termination Date").
3. All full-time employees of the Company, other than employees with
individual severance agreements or employment agreements in effect or whose
employment is covered by a collective bargaining agreement, are eligible for
certain severance benefits under the NTL Incorporated Severance Plan (the
"Plan-Based Severance") upon a termination without "Cause" (as defined in the
Plan).
4. Employees with employment agreements are eligible for certain severance
benefits upon a termination without "Cause" (as defined in each individual
employment agreement) under the terms of their individual employment agreements
(the "Agreement-Based Severance").
5. All employees will have forty-five (45) calendar days to consider the
terms of the Release. All employees must sign the release on, or within the
eight calendar days prior to, August 15, 2003. Once an employee signs the
Release, such employee will have seven (7) calendar days to revoke the Release.
6. The following is a list of all employees, who work out of or are
affiliated with the New York office, by title, age and whether they are eligible
for the Plan-Based Severance, Agreement-Based Severance or not presently
eligible for either:
---------------------------------------------------------------------------------------------------------------
Agreement-Based
Job Title Age Plan-Based Severance Severance Not Presently Eligible
---------------------------------------------------------------------------------------------------------------
Accounting Clerk 23 X
---------------------------------------------------------------------------------------------------------------
Administrative Assistant 29 X
---------------------------------------------------------------------------------------------------------------
Administrative Assistant 37 X
---------------------------------------------------------------------------------------------------------------
Administrative Assistant 38 X
---------------------------------------------------------------------------------------------------------------
Administrative Assistant 50 X
---------------------------------------------------------------------------------------------------------------
Administrative Assistant, 55 X
Assistant Secretary
---------------------------------------------------------------------------------------------------------------
Administrative Assistant, 60 X
Office Manager
---------------------------------------------------------------------------------------------------------------
Assistant General Counsel 33 X
---------------------------------------------------------------------------------------------------------------
Chief Executive Officer 46 X
---------------------------------------------------------------------------------------------------------------
Deputy General Counsel 41 X
---------------------------------------------------------------------------------------------------------------
EXHIBIT C
Bonus for Xxxxx Xxxxxxx = $100,000 x 0.5 x Relevant Percentage
The Relevant Percentage will be defined by the following table:
H1 UFCF RELEVANT
(in millions) PERCENTAGE
< L108.1 0.0%
> or = to L108.1 but < L113.6 50.0%
> or = to L113.6 but < L117.2 75.0%
> or = to L117.2 but < L122.4 100.0%
> or = to L122.4 but < L127.7 125.0%
> or = to L127.7 but < L132.9 150.0%
> or = to L132.9 but < L138.1 175.0%
> or = to L138.1 200.0%
Therefore, by way of example, if an employee's target bonus was $100,000 and the
Company's H1 UFCF was L120.0 million, then the employee's Bonus would be equal
to $100,000 x 0.5 x 100.0% or $50,000.
H1 is defined as the accounting period from January 1, 2003 to June 30, 2003.
UFCF is defined as unlevered free cash flow of the NTL Group as a whole and
shall be calculated for purposes of this Agreement on the same basis as it is
calculated for the relevant period under the Company's 2003 Bonus Scheme, for
the employees of the NTL Group generally.
EXHIBIT D
[COMPANY LETTERHEAD]
August _, 2003
BY HAND DELIVERY & FACSIMILE
Continental Stock Transfer & Trust Company
Attention: Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004-1102
Facsimile: (000) 000-0000
Dear Xx. Xxxxxx:
NTL Incorporated ("NTL") hereby authorizes and directs Continental
Stock Transfer & Trust Company, pursuant to Paragraph 4 of the Escrow Agreement,
dated April 16, 2003, among the Company and certain of its executives, including
Xxxxx X. Xxxxxxx, to release immediately 9,317 shares of NTL to Xxxxx X.
Xxxxxxx. Such shares should be delivered to Xxxxx X. Xxxxxxx, 000 Xxxx 00xx
Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
Sincerely,
J. Xxxxxxx Xxxxx
President - Chief Executive Officer
NTL Incorporated
EXHIBIT E
Xxxxx X. Xxxxxxx
435 East 65th Street, Apartment 14D
Xxx Xxxx, Xxx Xxxx 00000
June __, 2003
BY OVERNIGHT MAIL
NTL Incorporated
Attention: J. Xxxxxxx Xxxxx
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Resignation
To J. Xxxxxxx Xxxxx:
Effective August 15, 2003,1 hereby resign from any and all boards and
office or director positions, if any, with the Company and any of its parents,
subsidiaries or affiliates. I also agree to execute any other documents
necessary to effectuate such resignation.
Sincerely,
Xxxxx X. Xxxxxxx
NON-QUALIFIED AND INCENTIVE STOCK OPTION NOTICE
Dear Xxxxx Xxxxxxx:
This Option Notice (the "Notice") dated as of April 11, 2003 (the "Grant Date")
is being sent to you by NTL Incorporated (including any successor company (the
"Company"). As you are presently serving as an employee of NTL Incorporated or
one of its Subsidiary Corporations, in recognition of your services and pursuant
to the 2003 NTL Incorporated Stock Option Plan (the "Plan"), the Company has
granted you the Option provided for in this Notice. The Option is subject to the
terms and conditions set forth in the Plan, which is incorporated herein by
reference, and defined terms used but not defined in this Notice shall have the
meaning set forth in the Plan.
1. GRANT OF OPTION. The Company hereby irrevocably grants to you, as of the
Grant Date, an Option to purchase up to 5,000 shares of the Company's Common
Stock at a price of $9 per share (the "First Tranche") and an Option to purchase
up to 5,000 shares of the Company's Common Stock at a price of $15 per share
(the "Second Tranche") and collectively with the First Tranche (the "Option").
The First Tranche is not intended to qualify as an Incentive Stock Option under
U.S. tax laws or as an "approved option" under UK tax laws. The Second Tranche
is intended to qualify as an Incentive Stock Option under U.S. tax laws and the
Company will treat it as such to the extent permitted by applicable law.
2. VESTING. Each of the First Tranche and the Second Tranche shall vest with
respect to 20% of the shares covered thereby on April 11, 2004 and each such
Tranche shall vest with respect to an additional 20% of such shares on each
April 11th thereafter until fully vested, provided that you are employed by the
Company or one of its Subsidiary Corporations on each such vesting date.
Notwithstanding the foregoing, in the event of a termination of your employment
other than a termination by the Company for Cause, each of the First Tranche and
the Second Tranche shall become vested as to 100% of the shares covered thereby.
3. EXERCISE PERIOD. Except as set forth above in paragraph 2, the Option shall
stop vesting immediately upon the termination of your employment and any portion
of the Option that is not vested at the time of termination of your employment
shall immediately be forfeited and cancelled. Your right to exercise that
portion of the Option that is vested at the time of your termination shall
terminate on the earlier of the following dates: (a) three months after the
Severance Period (as defined below) ends in connection with your termination
other than for Cause; (b) one year after your termination resulting from your
retirement, Disability or death, (c) the date on which your employment is
terminated for Cause; or (d) April 10, 2013. For purposes of this Agreement,
"Severance Period" shall mean the number of years equal to the number multiplied
by your base salary to determine the amount of severance payable to you under
your severance agreement.
4. MANNER OF EXERCISE. The Option may be exercised by delivery to NTL
Incorporated, Attn: Xxxxxx Xxxxxxxxx/Stock Options at its office (NTL House, 00
Xxxxxxx Xxx, Xxxxxxx Xxxx Xxxx, Xxxxxxxxx XX00 0XX) of a notice in the form
attached signed by the person entitled to exercise the Option, specifying the
number of shares which such person wishes to purchase, together with a certified
or bank check or cash (or such other manner of payment as permitted by
the Plan) for the aggregate option price for that number of shares and any
required withholding (including a payment sufficient to indemnify the Company or
any Subsidiary of the Company in full against any and all liability to account
for any tax or duty payable and arising by reason of the exercise of the
Option).
5. TRANSFERABILITY. Neither this Option nor any interest in this Option may be
transferred other than by will or the laws of descent or distribution, and this
Option may be exercised during your lifetime only by you or your guardian or
legal representative.
NTL INCORPORATED
By: /s/ J. Xxxxxxx Xxxxx
---------------------------------
Name:
Title:
EXHIBIT G (GURFEIN)
l. The Executive is entitled to the reasonable moving expenses to relocate
from London to the United States as follows: (i) moving expenses and airfare to
return the Executive and his family to the United States, (ii) a brief hotel
stay (not to exceed one week) upon arrival in the United States and (iii)
remaining storage and moving costs to move stored items to the Executive's home
in New York City. Such expenses shall, to the extent practicable, be pre-paid by
the Company on or before the Termination Date. The Company shall reimburse any
reasonable out of pocket costs incurred either before or after the Termination
Date related to the foregoing that have not been pre-paid by the Company.
2. The Executive is entitled to continued tax equalization benefits
pursuant to the tax equalization policy attached hereto (the "Tax Equalization
Policy"). For purposes of the Tax Equalization Policy, the term "Illinois" is
hereby deleted and replaced in all instances by the term "New York."
3. The Executive hereby waives any right to have his living expenses in
New York City paid by the Company following the Termination Date through
November 15, 2003 as provided for in Section 7(b) of the Employment Agreement,
in consideration for which the Company hereby expressly agrees to allow the
Executive to remain in the Company sponsored apartment in London that he is
currently occupying until the conclusion of that lease on October 31, 2003. The
Company shall continue to pay the rent on that apartment as it becomes due in a
timely manner during that period, and continue to pay the utilities that have
been provided for during the Executive's time in London. The Executive will use
his reasonable efforts to effect an early termination of the lease if Executive
chooses to vacate such apartment sooner than October 31, 2003.
4. The Company will explore whether the insurance carrier of the Company's
group health plan currently covering employees resident in the Company's New
York office will permit the Executive to obtain coverage under its plan prior to
the Termination Date or whether the insurance carrier of the Company's group
health plan currently covering employees resident in the Company's London office
will permit the Executive to obtain COBRA coverage under its plan following the
Termination Date. To the extent permitted by such carriers, the Executive may
elect from such available options or choose to receive the benefits provided in
Paragraph 2(d)(iii)(y) of the Severance Agreement. In the event that neither of
the options described in the first sentence are possible, the Executive will
receive the benefits provided in Paragraph 2(d)(iii)(y) of the Severance
Agreement. For the sake of clarity, the premium described in Paragraph
2(d)(iii)(y) of the Severance Agreement will equal the premium for an employee
(as well as an employee's qualifying dependents as applicable to the Executive)
covered by the Company's group health plan currently covering employees resident
in the Company's New York office, regardless of whether the Executive is
eligible to participate in such group health plan.
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TAX & SOCIAL SECURITY EQUALISATION POLICY
A. OBJECTIVE
A TAX & SOCIAL SECURITY EQUALISATION POLICY has bean established for
employees on foreign assignment, as 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 DIGITAL US INC employee working in the US
with comparable NTL DIGITAL US INC income, personal income,
adjustments, deductions and exemptions, irrespective of host (i.e.,
assignment) country.
By equalising income tax and social security costs for its expatriates,
NTL DIGITAL US INC 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 DIGITAL US INC requires that all employees be familiar and comply
fully with all applicable national and local laws. In connection with
tax and social security matters, the following guidelines ensure that
NTL DIGITAL US INC and its expatriates will fully comply with worldwide
income tax and social security requirements.
- NTL DIGITAL US INC regards compliance with worldwide
income tax and social security requirements as a
mandatory obligation of each expatriate.
- An expatriate must conduct himself at all times so as
to avoid charges of fiscal evasion or abuse, or of
violation of local law, which could jeopardise in any
way his standing personally or as a representative of
NTL DIGITAL US INC.
- An expatriate is expected to exercise care and
attention in minimising his liability for worldwide
income taxes and social security contributions in
accordance with appropriate principles of fiscal
planning. An expatriate must co-operate with NTL
DIGITAL US INC 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
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TAX & SOCIAL SECURITY EQUALISATION POLICY
income tax and social security contributions to be paid by each
expatriate will be governed by the fiscal laws and regulations under
which the authorities operate.
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 DIGITAL US INC 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
DIGITAL US INC.
Tax returns prepared by the international tax consulting firm will be
kept confidential by them.
D. IMPLEMENTATION OF TAX EQUALISATION
NTL DIGITAL US INC 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 DIGITAL US INC TAX & SOCIAL SECURITY
EQUALISATION POLICY, each expatriate will have a total income tax
burden approximately equal to that of an NTL DIGITAL US INC 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 DIGITAL US INC 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 fled, 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 DIGITAL US INC 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 Illinois 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 DIGITAL US INC has agreed to calculate
hypothetical
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TAX & SOCIAL SECURITY EQUALISATION POLICY
State tax based on Illinois 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:
- base salary
- bonus
- group term life
- 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:
- actual amounts claimed on Federal income tax
return to arrive at adjusted gross income.
- actual itemised deductions per Federal
return, excluding moving expenses.
- 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.
- credit will be given for hypothetical
Illinois 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 DIGITAL US INC during the course of a year
whenever there is a change in the expatriate's base salary,
401(k) contribution, or other NTL DIGITAL US INC
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 DIGITAL
US INC may reduce the retailed hypothetical tax to give the
expatriate current tax benefit. Conversely, NTL DIGITAL US INC
may increase the retained hypothetical tax in order to collect
the additional hypothetical US income tax on net personal
income such as dividends and interest.
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TAX & SOCIAL SECURITY EQUALISATION POLICY
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 DIGITAL US INC 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 DIGITAL US
INC 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 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 DIGITAL
US INC 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 DIGITAL US INC employee in the US
with comparable base salary, bonus, other NTL DIGITAL US INC
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 DIGITAL US INC base salary
and bonus, but also on the expatriate's taxable net personal
income or lose, 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 DIGITAL US INC expatriate with losses, alimony
or itemised deductions will likely receive a cash
reimbursement from NTL DIGITAL US INC after the end of the
year. On the other hand, an NTL DIGITAL US INC expatriate with
net personal income will be obliged to make a cash payment to
NTL DIGITAL US INC 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 DIGITAL US INC to retain it through
payroll or to make payments of Estimated US income tax to the
IRS and to State tax authorities, if applicable.
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TAX & SOCIAL SECURITY EQUALISATION POLICY
The final hypothetical US income tax will be based on the
following items:
(a) NTL DIGITAL US INC Income
- 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 DIGITAL US
INC and who works a part-year for NTL
DIGITAL US INC in the US base salary will be
the sum of the two part-year base salaries).
- Cash bonuses and any other cash incentive
compensation.
- (Income from the exercise of NTL DIGITAL US
INC 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 DIGITAL US INC, for the tax
consequences of stock option exercises to be
thoroughly discussed with the international
tax consulting firm in advance of the
exercise and of any subsequent sale of
shares, in order to mitigate adverse tax
consequences).
- Income from any other NTL DIGITAL US INC
stock-based incentive plan.
- 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.
- Oversees allowances are excluded from all
calculations of hypothetical tax to ensure
that NTL DIGITAL US INC 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 DIGITAL US INC 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 DIGITAL US INC.
It includes, but is not limited to,
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TAX & SOCIAL SECURITY EQUALISATION POLICY
amounts from the following sources which are taxable
on an expatriate's actual US income tax return:
- Dividends
- Interest
- State income tax refunds
- 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.
- Net rental income (but excluding any NM
DIGITAL US INC - funded expenses).
- Net partnership income.
Capital gain arising from the sale of an expatriate's
US principal residence will not be tax equalised
under the NTL DIGITAL US INC 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.
"Personal Income" also includes:
- 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 DIGITAL US
INC.
- 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
theme, the spouse will be fully responsible for any
income and
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TAX & SOCIAL SECURITY EQUALISATION POLICY
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 DIGITAL US INC expatriate and
not by his spouse.
"Personal losses" encompass losses funded exclusively
by the expatriate. This category includes but is not
limited to:
- Net capital loss deductible on the actual US
income tax return.
- Net rental loss deductible on the actual US
income tax return (but excluding any NTL
DIGITAL US INC funded expenses).
- 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 subtracting "personal losses" from
"personal income."
(d) Deductions
The following deductions which are not funded by NTL
DIGITAL US INC 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.
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TAX & SOCIAL SECURITY EQUALISATION POLICY
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 DIGITAL US INC.
(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 tart 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
Illinois 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 into taxes in certain situations. Where this
occurs, the following rules will apply:
- 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.
- 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 DIGITAL US INC 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 DIGITAL
9
TAX & SOCIAL SECURITY EQUALISATION POLICY
US INC 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 DIGITAL US INC employees on International
Assignment will be subject to income and social taxes in their
country of assignment. Where this is the case, NTL DIGITAL US
INC 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 DIGITAL US INC 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:
- Withholding taxes which NTL DIGITAL US INC
is required to pay over to the assignment
country government.
- Estimated tax filings made during the year.
- 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 DIGITAL US INC. An
amount equal to any local tax refunds must be paid or turned
over to NTL DIGITAL US INC by the expatriate, since NTL
DIGITAL US INC (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 DIGITAL US INC 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 DIGITAL US INC, 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 DIGITAL US INC. The
reconciliation will then
10
TAX & SOCIAL SECURITY EQUALISATION POLICY
indicate the net reimbursement owed to/by the expatriate, and
NTL DIGITAL US INC reimbursement will be made as appropriate
and final.
NTL DIGITAL US INC will reimburse the expatriate for all
interest and penalties relating to NTL DIGITAL US INC income
except when the assessment of the interest and penalties
results from the negligence or fault of the expatriate; e.g.,
a delay in submitting data booklets or tax questionnaires to
the consultants which in turn prevents the timely filing of a
return.
NTL DIGITAL US INC 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 DIGITAL US INC 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 DIGITAL US INC.
It also includes tax credits (reimbursed by NTL DIGITAL US
INC) 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
expatriate must pay the amount of his tax refund received from
the Internal Revenue Service, plus interest, to NTL DIGITAL US
INC. 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 DIGITAL US INC, 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 DIGITAL
US INC. 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
11
TAX & SOCIAL SECURITY EQUALISATION POLICY
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 DIGITAL US INC 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 DIGITAL US INC TAX & SOCIAL
SECURITY EQUALISATION POLICY, any "final" tax paid with
respect to income tax reimbursements will be fully reimbursed
by NTL DIGITAL US INC.
For repatriated employees receiving tax reimbursments 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 DIGITAL US INC 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
DIGITAL US INC. 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.
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 DIGITAL US INC 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 DIGITAL US INC within 10 days of receiving
the applicable refund of taxes from the US or local government
taxing authorities. NTL DIGITAL US INC reserves the right to
recapture all unpaid tax loans by reducing the expatriate's
base salary.
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TAX & SOCIAL SECURITY EQUALISATION POLICY
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:
- Hypothetical US income tax retained from
compensation (described above) during the
portion of the year spent on International
Assignment,
- Final hypothetical US income tax (described
above) on the entire year's income, and
- Actual US income tax liability on Form 1040
for the entire year.
Where the expatriate was employed by an employer other than
NTL DIGITAL US INC 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 DIGITAL US INC allowance
an which NTL DIGITAL US INC 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 DIGITAL US INC 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 DIGITAL US INC
expatriate receives the protection to which he is entitled
under the NTL DIGITAL US INC TAX & SOCIAL SECURITY
EQUALISATION POLICY by eliminating any distorted results which
could occur if the standard calculations were performed.
EXECUTION COPY
RELEASE
This Release ("Release") is entered into between Xxxxx X.
Xxxxxxx (the "Executive") and NTL Incorporated (the "Company") on the dates
indicated below.
1. EXECUTIVE RELEASE.
(a) The Executive, on behalf of the Executive,
the Executive's heirs, executors, administrators, successors and assigns, hereby
irrevocably, unconditionally, voluntarily, knowingly and willingly releases and
forever discharges the Company, its parents, their subsidiaries, divisions and
affiliates, together with their respective officers, directors, partners,
shareholders, employees, agents, attorneys and representatives, and any of their
predecessors and successors and each of their estates, heirs and assigns
(collectively, the "Company Releasees"), from any and all charges, complaints,
claims, liabilities, obligations, promises, agreements, controversies, rights,
costs, losses, causes of action and demands, debts or expenses of any nature
whatsoever, known or unknown, that the Executive or the Executive's heirs,
executors, administrators, successors or assigns ever had, now have or hereafter
can, will or may have against the Company or the Company Releasees by reason of
any matter, cause or thing whatsoever from the beginning of time to the date of
this Release, except as set forth in Paragraph 1(b) below, including, but not
limited to, any rights or claims relating in any way to (i) the Executive's
employment relationship with the Company or the Company's decision to terminate
the Executive's employment, (ii) all claims for attorneys' fees, punitive or
consequential damages and (iii) all claims arising under any federal, state and
local labor, employment and/or anti-discrimination laws including, without
limitation, the federal Age Discrimination in Employment Act of 1967, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1990, the Americans
with Disabilities Act of 1990, the Employee Retirement Income Security Act of
1974, the Family and Medical Leave Act of 1993, the New York State and City
Human Rights Law, each as amended, and any other federal, state, local or
foreign law or judicial decision. The Executive further agrees that the Company
does not owe the Executive any further wages, compensation or benefits, except
the wages, compensation and benefits specifically enumerated in the severance
agreement to which this Release is attached (the "Severance Agreement").
(b) Nothing in this Release shall be deemed to
release (i) the Executive's right to indemnification under Section 10 of the
Employment Agreement, or any other indemnification rights that may exist under
Delaware law or pursuant to the Company's certificate of incorporation or
by-laws, (ii) the Executive's right to any vested benefit under the Company's
401(k) plan and any options granted pursuant to the 2003 NTL Incorporated Stock
Option Plan, (iii) the Executive's rights as set forth under the Severance
Agreement, or (iv) the Executive's rights under the NTL Tax Equalisation Policy,
attached to Exhibit G of the Severance Agreement, for the Company's 2002 and
2003 fiscal years.
(c) The Executive acknowledges and agrees that
the Company has fully satisfied any and all obligations owed to the Executive
arising out of the Executive's employment with the Company, and no further sums
are owed to the Executive by the Company
or any of the other Company Releasees, except as expressly provided in the
Severance Agreement.
(d) The Executive represents that the Executive
has no complaints, charges or lawsuits pending against the Company or any of the
other Company Releasees. The Executive acknowledges and agrees that the
Executive and the Executive's heirs, executors, administrators, successors or
assigns shall not, directly or indirectly, be entitled to any personal recovery
in any lawsuit or other claim against the Company or any other Company Releasees
based on any event arising out of the matters released in this Paragraph 1.
2. COMPANY RELEASE. The Company knowingly and willingly
releases and forever discharges the Executive from any and all charges,
complaints, claims, promises, agreements, controversies, causes of action and
demands of any nature whatsoever that the Company now has or hereafter can,
shall or may have against the Executive by reason of any matter, cause or thing
whatsoever arising from the beginning of time to the date of this Release,
provided, however, that nothing herein is intended to release any claim the
Company may have against the Executive for any illegal conduct. Notwithstanding
the foregoing, the release set forth in this paragraph shall not release the
Executive from the Executive's obligations in the Severance Agreement or any of
Executive's continuing obligations in the Employment Agreement.
3. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The
Executive acknowledges that (i) the Company has advised the Executive of the
Executive's right to consult with an attorney of the Executive's choosing prior
to signing this Release, (ii) the Executive has consulted with an attorney
regarding the terms of this Release prior to executing it, (iii) the Executive
has carefully read and fully understands all of the provisions of this Release
and (iv) the Executive is entering into this Release, including the releases set
forth in Paragraph 1 above, knowingly, freely and voluntarily in exchange for
good and valuable consideration.
4. CONSIDERATION & REVOCATION PERIOD.
(a) The Executive acknowledges that the
Executive has been given at least forty-five (45) calendar days to consider the
terms of this Release, as well as the information attached hereto.
(b) The Executive will have seven (7) calendar
days from the date on which the Executive signs this Release to revoke the
Executive's consent to this Release. The Executive shall make such revocation in
writing and shall send such writing to J. Xxxxxxx Xxxxx, NTL Incorporated, 000
Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (212)
000-0000. The Company must receive such notice of revocation within the seven
(7) calendar days referenced above. Provided that the Executive does not revoke
this Release, this Release shall become effective on the eighth calendar day
after the date on which the Executive signs this Release.
(c) In the event of a revocation under Paragraph
4(b) of this Release by the Executive, Paragraphs 2(b), 2(d) and 2(e) of the
Severance Agreement and this Release in
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its entirety shall become null and void. In the event the Company fails to
execute this Release, the provisions of Paragraph 1 of this Release shall become
null and void.
5. NO ADMISSION OF WRONGDOING. Nothing herein is to be
deemed to constitute an admission of wrongdoing by the Company or any of the
other Company Releasees or the Executive.
6. NO ORAL MODIFICATION; NO WAIVERS. This Release may
not be changed orally, but may be changed only in a writing signed by the
Executive and a duly authorized representative of the Company. The failure of
the Executive or the Company to enforce any of the terms, provisions or
covenants of this Release will not be construed as a waiver of the same or of
the right of such party to enforce the same. Waiver by either the Executive or
the Company of any breach or default by the other party of any term or provision
of this Release will not operate as a waiver of any other breach or default.
7. ASSIGNMENT. This Release is personal to the Executive
and may not be assigned by the Executive, and is binding on and shall inure to
the benefit of the Company and the other Company Releasees.
8. DESCRIPTIVE HEADINGS. The paragraph headings
contained herein are for reference purposes only and will not in any way affect
the meaning or interpretation of this Release.
9. ENFORCEABILITY. In the event that any one or more of
the provisions of this Release is held to be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remainder hereof will not in
any way be affected or impaired thereby and any such provision or provisions
will be enforced to the fullest extent permitted by law.
10. ENTIRE AGREEMENT. This Release, the Severance
Agreement and the Employment Agreement (as modified by the Severance Agreement)
set forth the entire understanding between the Executive and the Company and
supersede all prior agreements, representations, discussions, and understandings
concerning the subject matter hereof. The Executive represents that, in
executing this Release, the Executive has not relied upon any representation or
statement made by the Company or any other Company Releasees, other than those
set forth herein, with regard to the subject matter, basis or effect of this
Release or otherwise.
11. GOVERNING LAW. This Release shall be construed and
enforced according to the laws of the State of New York, without giving effect
to its principles of conflicts of law.
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IN WITNESS WHEREOF, Executive and a duly authorized
representative of the Company have executed this Release on the dates indicated
below.
EXECUTIVE NTL INCORPORATED
/s/ Xxxxx X. Xxxxxxx 8/7/03 By: /s/ J. Xxxxxxx Xxxxx 8/7/03
-------------------- ------ ---------------------- ------
Xxxxx X. Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
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ATTACHMENT TO RELEASE
1. The decisional unit is all employees who work out of, or are affiliated
with, the New York office of the Company.
2. In connection with transferring certain functions to its United Kingdom
office, the Company has decided to reduce its New York workforce on August 15,
2003 (the "Termination Date").
3. All full-time employees of the Company, other than employees with
individual severance agreements or employment agreements in effect or whose
employment is covered by a collective bargaining agreement, are eligible for
certain severance benefits under the NTL Incorporated Severance Plan (the
"Plan-Based Severance") upon a termination without "Cause" (as defined in the
Plan).
4. Employees with employment agreements are eligible for certain severance
benefits upon a termination without "Cause" (as defined in each individual
employment agreement) under the terms of their individual employment agreements
(the "Agreement-Based Severance").
5. All employees will have forty-five (45) calendar days to consider the
terms of the Release. All employees must sign the release on, or within the
eight calendar days prior to, August 15, 2003. Once an employee signs the
Release, such employee will have seven (7) calendar days to revoke the Release.
6. The following is a list of all employees, who work out of or are
affiliated with the New York office, by title, age and whether they are eligible
for the Plan-Based Severance, Agreement-Based Severance or not presently
eligible for either:
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Plan-Based Agreement-Based Not Presently
Job Title Age Severance Severance Eligible
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Accounting Clerk 23 X
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Administrative Assistant 29 X
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Administrative Assistant 37 X
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Administrative Assistant 38 X
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Administrative Assistant 50 X
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Administrative Assistant,
Assistant Secretary 55 X
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Administrative Assistant,
Office Manager 60 X
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Assistant General Counsel 33 X
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Chief Executive Officer 46 X
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Deputy General Counsel 41 X
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Director - Corporate Finance
& Development 30 X
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Executive Vice President -
General Counsel 56 X
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Human Resources 39 X
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IT Development 51 X
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Legal Assistant 53 X
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Manager TT 36 X
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Manager, Accounting 38 X
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Manager, Accounting 40 X
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Manager, Accounting 41 X
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Manager, Corporate Development 30 X
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Manager, Investor Relations 32 X
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Manager, Telecom 30 X
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Managing Director - Legal 38 X
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Receptionist 28 X
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Receptionist 50 X
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Vice President, Controller 44 X
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Senior Vice President -
Finance 33 X
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