EXHIBIT 10.28
SEVERANCE AGREEMENT
This Severance Agreement ("Agreement") is entered into between Xxxx Xxxxxxx (the
"Executive") and NTL Incorporated (the "Company") as of June 25, 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 November 7, 2002, 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 set 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 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 8 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).
2
(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 l, 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 the Company's group health plan
currently covering employees resident in the Company's New York office (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 January 20, 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
3
of the Termination Date from any and all boards and office or director
positions, if any, with the 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)
4
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. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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
5
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).
15. 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.
16. 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.
17. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6
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/ Xxxx Xxxxxxx 6/25/03 /s/ J. Xxxxxxx Xxxxx 6/18/03
---------------- ------- -------------------- -------
Xxxx Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
7
EXHIBIT A
EMPLOYMENT AGREEMENT, DATED AS OF NOVEMBER 7, 2002 BETWEEN NTL
COMMUNICATIONS CORP. AND XXXX XXXXXXX (INCORPORATED BY REFERENCE TO EXHIBIT
10.13 OF NTL INCORPORATED'S REGISTRATION STATEMENT ON FORM S-1 (FILE NO.
333-103135) FILED ON FEBRUARY 12, 2003, AS AMENDED ON JUNE 25, 2003)
8
EXHIBIT B
RELEASE
This Release ("Release") is entered into between Xxxx 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 or (iii) the Executive's rights as set forth under the Severance
Agreement.
(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.
9
(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 its entirety shall become null and void.
In the event the Company fails to execute this Release, the provisions of
Paragraph l of this Release shall become null and void.
5. NO ADMISSION OF WRONGDOING. Nothing herein is to be
deemed to
10
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.
11
IN WITNESS WHEREOF, Executive and a duly authorized
representative of the Company have executed this Release on the dates indicated
below.
EXECUTIVE NTL INCORPORATED
_______________ _________ ___________________ _________
Xxxx Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
12
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:
---------------------------------------------------------------------------------------
PLAN-BASED AGREEMENT-BASED NOT PRESENTLY
JOB TITLE AGE SEVERANCE SEVERANCE 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
---------------------------------------------------------------------------------------
13
---------------------------------------------------------------------------------------
PLAN-BASED AGREEMENT-BASED NOT PRESENTLY
JOB TITLE AGE SEVERANCE SEVERANCE ELIGIBLE
---------------------------------------------------------------------------------------
Director - Corporate Finance 30 X
& Development
---------------------------------------------------------------------------------------
Executive Vice President 56 X
General Counsel
---------------------------------------------------------------------------------------
Human Resources 39 X
---------------------------------------------------------------------------------------
IT Development 51 X
---------------------------------------------------------------------------------------
Legal Assistant 53 X
---------------------------------------------------------------------------------------
Manager IT 36
---------------------------------------------------------------------------------------
Manager, Accounting 38
---------------------------------------------------------------------------------------
Manager, Accounting 40
---------------------------------------------------------------------------------------
Manager, Accounting 41
---------------------------------------------------------------------------------------
Manager, Corporate 30
Development
---------------------------------------------------------------------------------------
Manager, Investor Relations 32
---------------------------------------------------------------------------------------
Manager, Telecom 30 X
---------------------------------------------------------------------------------------
Managing Director - Legal 38 X
---------------------------------------------------------------------------------------
Receptionist 28 X
---------------------------------------------------------------------------------------
Receptionist 50 X
---------------------------------------------------------------------------------------
Vice President, Controller 44 X
---------------------------------------------------------------------------------------
Senior Vice President-Finance 33 X
---------------------------------------------------------------------------------------
14
EXHIBIT C
Bonus for Xxxx Xxxxxxx = $345,000 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.
15
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 January 20, 2003, among the Company and certain of its
executives, including Xxxx Xxxxxxx, to release immediately 16,071 shares of NTL
to Xxxx Xxxxxxx. Such shares should be delivered to Xxxx Xxxxxxx, 000 Xxxx 00xx
Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000.
Sincerely,
J. Xxxxxxx Xxxxx
President - Chief Executive Officer
NTL Incorporated
16
EXHIBIT E
Xxxx Xxxxxxx
000 Xxxx 00xx Xxxxxx, Xxxxxxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
June __, 2003
BY HAND
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, I 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,
Xxxx Xxxxxxx
17
EXHIBIT F
NON-QUALIFIED AND INCENTIVE STOCK OPTION NOTICE
Dear Xxxx 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 40,000 shares
of the Company's Common Stock at a price of $9 per share (the "First Tranche")
and an Option to purchase up to 40,000 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 25% of the shares
covered thereby, which vesting shall be in addition to vesting, if any, that may
have occurred prior to termination, provided that neither of the Tranches shall
in any event vest with respect to more than 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.
18
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:
19
EXECUTION COPY
RELEASE
This Release ("Release") is entered into between Xxxx Xxxxxxx
(the "Executive") and NTL Incorporated (the "Company") on the dates indicated
below.
6. 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 or (iii) the Executive's rights as set forth under the Severance
Agreement.
(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.
20
(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.
7. 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.
8. 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.
9. 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 its entirety shall become null and void.
In the event the Company fails to execute this Release, the provisions of
Paragraph l of this Release shall become null and void.
10. NO ADMISSION OF WRONGDOING. Nothing herein is to be
deemed to
21
constitute an admission of wrongdoing by the Company or any of the other Company
Releasees or the Executive.
11. 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.
12. 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.
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 Release.
14. 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.
15. 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.
16. 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.
22
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/ Xxxx Xxxxxxx 8/7/03 /s/ J. Xxxxxxx Xxxxx 8/7/03
------------------ ------ ------------------------- ------
Xxxx Xxxxxxx Date J. Xxxxxxx Xxxxx Date
President - Chief Executive Officer
NTL Incorporated
23
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:
-------------------------------------------------------------------------------------------------------------
PLAN-BASED AGREEMENT-BASED NOT PRESENTLY
JOB TITLE AGE SEVERANCE SEVERANCE 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
-------------------------------------------------------------------------------------------------------------
24
-------------------------------------------------------------------------------------------------------------
PLAN-BASED AGREEMENT-BASED NOT PRESENTLY
JOB TITLE AGE SEVERANCE SEVERANCE ELIGIBLE
-------------------------------------------------------------------------------------------------------------
Director - Corporate Finance 30 X
& Development
------------------------------------------------------------------------------------------------------------------------
Executive Vice President 56 X
General Counsel
------------------------------------------------------------------------------------------------------------------------
Human Resources 39 X
------------------------------------------------------------------------------------------------------------------------
IT Development 51 X
------------------------------------------------------------------------------------------------------------------------
Legal Assistant 53 X
------------------------------------------------------------------------------------------------------------------------
Manager IT 36
-------------------------------------------------------------------------------------------------------------------------
Manager, Accounting 38
-------------------------------------------------------------------------------------------------------------------------
Manager, Accounting 40
-------------------------------------------------------------------------------------------------------------------------
Manager, Accounting 41
-------------------------------------------------------------------------------------------------------------------------
Manager, Corporate 30
Development
-------------------------------------------------------------------------------------------------------------------------
Manager, Investor Relations 32
-------------------------------------------------------------------------------------------------------------------------
Manager, Telecom 30 X
-------------------------------------------------------------------------------------------------------------------------
Managing Director - Legal 38 X
-------------------------------------------------------------------------------------------------------------------------
Receptionist 28 X
-------------------------------------------------------------------------------------------------------------------------
Receptionist 50 X
-------------------------------------------------------------------------------------------------------------------------
Vice President, Controller 44 X
-------------------------------------------------------------------------------------------------------------------------
Senior Vice President-Finance 33 X
-------------------------------------------------------------------------------------------------------------------------
25
