SECOND AMENDED & RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.1
EXECUTION COPY
SECOND AMENDED &
RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED & RESTATED EMPLOYMENT AGREEMENT, dated as of 3 July 2009 (this
“Agreement”),
by and between Virgin Media Inc. (f/k/a NTL Incorporated), a Delaware
corporation (the “Company”), and Xxxxx
X. Xxxxxx (the “Executive”).
WHEREAS,
the Executive has been employed as the Chairman of the Board of Directors of the
Company (the “Board”) since 3 March
2006, pursuant to the terms of an amended and restated employment agreement
dated as of 5 July 2006 (“First Amended and Restated
Agreement”); and
WHEREAS,
the Company and the Executive each desire to further amend and restate the First
Amended and Restated Agreement in its entirety to extend the Employment Term,
provide for a transition of certain of the Executive’s responsibilities to the
Company’s Chief Executive Officer (the “CEO”) and to provide
for certain additional restricted stock grants to the Executive;
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Amendment; Employment
Term. The First Amended and Restated Agreement is hereby amended and
restated in its entirety by this Agreement. Except for earlier
termination as provided for in Section 7, the
Company agrees to employ the Executive, and the Executive agrees to be employed
by the Company, subject to the terms and provisions of this Agreement, for the
period commencing on 1 May 2009 (the “Restatement Effective
Date”) and ending on 31 December 2010 (the “Employment
Term”).
2. Duties and
Responsibilities.
(a) General. During
the Employment Term and subject to Subsection (b) of this Section 2, the
Executive shall serve as the Chairman of the Board and shall perform such
duties, services and responsibilities on behalf of the Company and its
subsidiaries as may be determined from time to time by the Board. In
performing such duties hereunder, the Executive will report directly to the
Board. The Executive shall devote substantial business time,
attention and skill to the performance of such duties, services and
responsibilities, and will use his best efforts to promote the interests of the
Company.
(b) Transition of Certain
Responsibilities. The Executive and the Company agree that the
Executive’s duties and responsibilities hereunder shall be transitioned to the
CEO over the course of the Employment Term. The Executive shall meet
with the Compensation Committee of the Board (“Compensation
Committee”) or its Chairman at such times as the Chairman of the
Compensation Committee shall request to discuss the progress of the Executive in
transitioning these responsibilities.
3. Cash
Compensation. In full consideration of the performance by the
Executive of the Executive’s obligations during the Employment Term, the
Executive shall be compensated as follows:
(a) Base
Salary. The Executive shall be eligible to receive a base
salary during the Employment Term at an annual rate of $1,250,000 per year (the
“Base
Salary”). The Base Salary is payable in accordance with the
normal payroll practices of the Company then in effect.
(b) Incentive
Bonus. The Executive shall participate in the Company’s cash
bonus plans, with an on-target bonus percentage of 100% (0-200%) of base salary,
provided that for bonus purposes his base salary shall be deemed to be $400,000
and that no personal multiplier shall apply in the calculation of his bonus (the
“Bonus”).
(c) Clawback. If
the Compensation Committee determines that the Executive’s gross negligence,
fraud or other misconduct has contributed to the Company having to restate all
or a portion of its financial statements the Compensation Committee may if it
determines in its sole judgment that it is in the Company’s interest to do so
require reimbursement by the Executive of any payment made under any bonus
arrangement where: (i) the payment under that bonus arrangement was predicated
upon achieving certain financial results that were subsequently the subject of a
restatement of Company financial statements filed with the Securities and
Exchange Commission and/or the satisfaction of financial results or other
performance metric criteria which the Compensation Committee subsequently
determined were materially inaccurate; (ii) the Compensation Committee
determines that the Executive’s gross negligence, fraud or other misconduct
contributed to the need for the restatement and/or inaccuracy; and (iii) a lower
bonus payment or award would have been made to the Executive based upon the
restated financial results or accurate financial results or performance metric
criteria. In any such case the Company may, to the extent permitted by
applicable law, recover from the Executive, whether or not he remains in
employment with the Company, the amount by which the Executive’s bonus
payment/award for the relevant period exceeded the lower payment/award, if any,
that would have been made based on the restated financial results or accurate
financial results or performance metric criteria. The Executive agrees that he
will upon demand by the Company repay to the Company the sum so demanded within
21 days of receiving the demand for payment and whether or not he remains the
employee of the Company together with interest whichever is the greater of 5% or
1% above the Bank of England minimum lending rate from time to time from the
date of the bonus payment or award to the date of actual repayment.
4. Equity-Based
Compensation. As of the date hereof, the Company will
grant to the Executive 625,000 shares of common stock of the Company, on the
terms and conditions as described on Exhibit A and as set
forth in the Restricted Stock Agreement attached in Exhibit A (the “Restricted Stock
Agreement”).
5. Benefits. During
the Employment Term, the Executive shall be entitled to: (i) participate in
health insurance and life insurance plans, policies, programs and arrangements
in accordance with the Company’s policy then in effect, to the extent the
Executive meets the eligibility requirements for any such plan, policy, program
or arrangement and (ii) reimbursement for travel expenses in accordance with the
Company’s policy then in effect.
6. Taxes. The
Executive shall be solely responsible for taxes imposed on the Executive by
reason of any compensation and benefits provided under this Agreement and all
such compensation and benefits shall be subject to applicable withholding
taxes.
7. Termination. The
Executive’s employment with the Company and the Employment Term shall terminate
upon the expiration of the Employment Term or upon the earlier occurrence of any
of the following events (the date of termination, the “Termination
Date”):
(a) The
death of the Executive (“Death”).
(b) The
mutual agreement between the Company and the Executive that the employment of
the Executive with the Company shall be terminated.
(c) The
termination of employment by the Company for Cause upon written notice (the
“Cause Notice”)
to the Executive specifying the conduct constituting
Cause. Termination of employment for “Cause”
means: (i) the Executive is convicted of any criminal offense
including fraud or breach of trust, (ii) the willful or continued failure of the
Executive to perform the Executive’s duties hereunder (other than as a result of
physical or mental illness) or (iii) 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 its
parents, subsidiaries, associated and affiliated companies and joint ventures
(collectively, the “Company Affiliated
Group”). For all purposes of the Executive’s employment by the
Company, if the Executive’s employment is terminated for Cause, the effective
date of such termination shall be the date of delivery of the Cause
Notice.
(d) The
termination of employment by the Company if the Executive is
Disabled. “Disabled” shall mean
that the Executive, as of any date, 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.
(e) The
termination of employment by the Company other than (i) for Cause, being
Disabled or Death or (ii) a termination described in Subsection (f) of this
Section
7.
(f) The
termination of the Executive’s employment as of 30 April 2010 upon a vote, prior
to such date, of a majority of the then current members of the Board excluding
the Executive, the Company’s chief executive officer and any other members of
the Board who are executives of the Company.
In the
event of termination of the Executive’s employment, for whatever reason (other
than Death), the Executive agrees to cooperate with the Company, its
subsidiaries and affiliates and to be reasonably available to the Company, its
subsidiaries and affiliates with respect to continuing and/or future matters
arising out of the Executive’s employment hereunder or any other relationship
with the Company, its subsidiaries or affiliates, whether such matters are
business-related, legal or otherwise.
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, and
shall execute all such documentation required to evidence any such
resignations.
8. Termination
Payments.
(a) If
the Executive’s employment with the Company terminates pursuant to Subsection
(a), (b), (c) or (d) of Section 7 (or, for
the avoidance of doubt, upon expiration of the Employment Term), the Company
shall pay the Executive: (i) any accrued and unpaid Base Salary
as of the Termination Date and (ii) an amount equal to such reasonable and
necessary business expenses incurred by the Executive in connection with the
Executive’s employment on behalf of the Company on or prior to the Termination
Date but not previously paid to the Executive (the “Accrued
Compensation”).
(b) If
the Executive’s employment with the Company terminates pursuant to Subsection
(e) or Subsection (f) of Section 7,
subject to the Executive’s continued compliance with Section 9 and subject
to the release described in Subsection (d) of this Section 8 becoming
effective:
(i) the
Company shall pay the Executive the Accrued Compensation;
(ii) for
the shorter of (A) the remainder of the Employment Term or (B) the one-year
period following the Termination Date, the Company shall continue to pay the
Executive the Base Salary in accordance with the normal payroll practices of the
Company;
(iii) the
Company shall pay, to the extent unpaid, the Bonus with respect to services
performed in 2009 and 2010 at the same time as such bonuses are paid to
employees generally and subject to the performance criteria to which such Bonus
would have been subject had the Executive remained employed through the end of
the Employment Term; provided, that,
notwithstanding the foregoing, any Bonus payable with respect to services
performed in 2009 shall be paid in 2010 and any Bonus payable with respect to
services performed in 2010 shall be paid in 2011;
(iv) all
unvested shares of Restricted Stock granted under Section 3(i) of the Restricted
Stock Agreement shall remain outstanding and eligible to become vested at the
time and subject to attainment of the performance conditions specified therein;
and
(iv) all
unvested shares of Restricted Stock granted under Section 3(ii) of the
Restricted Stock Agreement with respect to which the fiscal year specified
therein has not been completed as of the Termination Date shall become vested on
the Termination Date without regard to whether the performance conditions
relating thereto are satisfied (and, for the avoidance of doubt, Section 5 of
the Restricted Stock Agreement shall apply to all unvested shares of Restricted
Stock granted under Section 3(ii) of the Restricted Stock Agreement with respect
to which the applicable fiscal year has been completed but with respect to which
the Compensation Committee’s determination whether the applicable performance
conditions have been satisfied has not been made as of the Termination
Date).
(c) If
the Executive’s employment with the Company terminates pursuant to Subsection
(a) of Section
7, any shares granted under the Restricted Stock Agreement and not then
forfeited pursuant to the terms thereof shall become vested on the Termination
Date.
(d) Release; Full
Satisfaction. Notwithstanding any other provision of this
Agreement, no severance pay or other benefits provided pursuant to Subsection
(b) of this Section
8 shall become payable or become vested under this Agreement unless and
until the Executive executes a general release of claims substantially in a form
attached hereto as Exhibit B (as
reasonably revised by the Company for changes in applicable laws); provided, that such
release becomes effective not later than 45 days following the date of
termination of employment. The first installment of severance pay to
which the Executive becomes entitled pursuant to Subsection (b)(ii) of this
Section 8 shall
be made on the next payroll date following the effectiveness of the release as
of which commencement is administratively practicable and shall include the
amounts that would have otherwise been paid during the period between the
Termination Date and the effectiveness of the release. The payments
to be provided to the Executive pursuant to this Section 8 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.
(e) Effect of Section 409A of
the Internal Revenue Code. If the Executive is a “specified
employee” for purposes of Section 409A of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder, any severance payments to the Executive
which are subject to Section 409A shall not commence until six months from the
Termination Date, and the first payment after such period shall include all
prior severance payments that would have been paid during such six month period
if Section 409A had not been applicable thereto.
9. Executive
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 without limitation 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
will not knowingly disclose such information, either directly or indirectly, to
any person or entity outside the Company Affiliated Group 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 he determines
that so doing is reasonable or appropriate in the performance of the Executive’s
duties or, (y) after giving prior notice to the 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. The Executive shall comply with the Company’s
data protection policies. 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 Restatement
Effective Date and ending on the one-year anniversary of the termination of the
Executive’s employment with the Company, the Executive shall not, as an
employee, employer, stockholder, officer, director, partner, colleague,
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 (x) owning or operating broadband or
mobile communications networks for telephone, mobile telephone, cable
television or internet services, (y) providing mobile telephone, fixed line
telephone, television or internet services or (z) owning, operating or providing
any content-generation services or television channels, in each case principally
in the United Kingdom (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;
(ii) hire
any individual who is, or within the six months prior to the Executive’s
termination was, an employee of any member of the Company Affiliated Group whose
base salary at the time of hire exceeded £65,000 per year; 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;
provided, that,
notwithstanding the foregoing, the Executive shall not be deemed to be in
violation of clause (i) or (iii) of the foregoing by virtue of acting as an
attorney (as partner, associate, shareholder, member or employee) or as vice
president, director or managing director or similar position at any accounting
firm, law firm, investment banking firm or consulting firm, institutional
investor or similar entity, in each case so long as the Executive takes
reasonable steps to insulate himself from the businesses and activities of any
such entity that relate to the Core Businesses during any period that this Section 9(b) is in
effect.
(c) Proprietary
Rights. The Executive assigns all of the Executive’s interest
in 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 the Employment Term and related to the
business or activities of any member of the Company Affiliated Group 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 that the Company shall in good xxxxx xxxx 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.
(d) Remedies. The
Executive agrees that any breach of the terms of this Section 9 would
result in irreparable injury and damage to the Company, its subsidiaries and/or
its affiliates for which the Company, its subsidiaries and/or its affiliates
would have no adequate remedy at law; the Executive therefore also agrees that
in the event of said breach or any threat of breach, the Company, its
subsidiaries and/or its affiliates, as applicable, shall be entitled to an
immediate injunction and restraining order to prevent such breach and/or
threatened breach and/or continued breach by the Executive and/or any and all
persons and/or entities acting for and/or with the Executive, without having to
prove damages, in addition to any other remedies to which the Company, its
subsidiaries and/or its affiliates may be entitled at law or in
equity. The terms of this paragraph shall not prevent the Company,
its subsidiaries and/or its affiliates from pursuing any other available
remedies for any breach or threatened breach hereof, including but not limited
to the recovery of damages from the Executive. The Executive and the
Company further agree that the provisions of the covenants contained in this
Section 9
are reasonable and necessary to protect the businesses of the Company Affiliated
Group because of the Executive’s access to Confidential Information and his
material participation in the operation of such businesses. Should a
court, arbitrator or other similar authority determine, however, that any
provision of the covenants contained in this Section 9 are
not reasonable or valid, either in period of time, geographical area, or
otherwise, the parties hereto agree that such covenants should be interpreted
and enforced to the maximum extent to which such court or arbitrator deems
reasonable or valid.
The
existence of any claim or cause of action by the Executive against the Company
and/or its subsidiaries and/or its affiliates, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of the covenants contained in this Section 9.
10. 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 has with or
to any person or entity including, but not limited to, any prior
employer.
11. Indemnification.
(a) To
the extent permitted by applicable 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 by
reason 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 misappropriation of funds or actual
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 promptly pay to the Executive to the extent permitted by applicable law
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 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 best efforts to maintain
commercially reasonable directors’ and officers’ liability insurance during the
Employment Term.
12. Non-Waiver of
Rights. The failure to enforce at any time the provisions of
this Agreement or to require at any time performance by any other party of any
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement or any part
hereof, or the right of any party to enforce each and every provision in
accordance with its terms.
13. Notices. Every
notice relating to this Agreement shall be in writing and shall be given by
personal delivery, by a reputable same-day or overnight courier service (charges
prepaid), by registered or certified mail, postage prepaid, return receipt
requested or by facsimile to the recipient with a confirmation copy to follow
the next day to be delivered by personal delivery or by a reputable same-day or
overnight courier service to:
If to the
Company: Virgin
Media Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Secretary
Fax: (000)
000-0000
with a copy
to:
Virgin Media Inc.
Xxxxxxx Xxxx Xxxxxxxx
Xxxx
Xxxx, Xxxxxxxxx XX00 0XX
Attn: HR Director
If to the
Executive, to the address most recently provided by the Executive to the Company
and contained in the Company’s records
14. Binding
Effect/Assignment. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the
immediately preceding sentence, the Executive shall not assign all or any
portion of this Agreement without the prior written consent of the
Company.
15. Entire
Agreement. This Agreement (as amended and restated hereby),
the Restricted Stock Agreement and the agreements evidencing any prior grants of
equity compensation set forth the entire understanding of the parties hereto
with respect to the subject matter hereof and supersede all prior agreements,
written or oral, between them as to such subject matter, including the agreement
between the Executive and the Company dated 5 July 2006, which shall be null and
void.
16. Data
Protection. In accordance with relevant data protection
legislation, the Company will hold and process the information it collects
relating to the Executive in the course of the Executive’s employment for the
purposes of employee administration, statistical and record keeping purposes,
including information for occupational health and pension
purposes. This may include information relating to the Executive’s
physical or mental health. Some of the Executive’s information may be
processed outside the European Economic Area, including without limitation in
the United States. The Executive’s information will be treated
confidentially and will only be available to authorized persons.
17. Withholding: Social
Security. The Company shall have the right to withhold or
cause to be withheld from any payments made pursuant to this Agreement all
federal, state, city, foreign or other taxes and social security or similar
payments as shall be required to be withheld pursuant to any law or governmental
regulation or ruling. Notwithstanding the foregoing, the
Executive shall remain responsible for all such amounts as he may owe in respect
of his compensation hereunder. Any payments made pursuant to this
Agreement will be subject to US social security deductions for the Employment
Term and the Company and the Executive shall be responsible for making their
respective employer and employee contributions thereto, and the Executive hereby
authorizes the Company to deduct from any payments to be made to the Executive
his employee social security contributions and remit these to the relevant
authority.
18. 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.
19. 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
any principles of conflict of laws which might result in the application of the
laws of any other jurisdiction. The Executive irrevocably submits to
the exclusive jurisdiction of the courts of the State of New York and any
federal court sitting in the State of New York. Each of the parties waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
upon contract, tort or otherwise) related to or arising out of or in connection
with this Agreement and the employment and other matters that are the subject of
this Agreement and agrees that any such action, claim or proceeding may be
brought exclusively in a federal or state court sitting in the State of New
York.
20. Modifications and
Waivers. No provision of this Agreement may be modified,
altered or amended except by an instrument in writing executed by the parties
hereto. No waiver by any party hereto of any breach by any other
party hereto of any provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions at the time
or at any prior or subsequent time.
21. Headings. The
headings contained herein are solely for the purposes of reference, are not part
of this Agreement and shall not in any way affect the meaning or interpretation
of this Agreement.
22. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by
authority of the Compensation Committee of the Board of Directors, and the
Executive has hereunto set his hand, on the day and year first above
written.
| Company: | |||
| Virgin Media Inc. | |||
|
|
By:
|
/s/ Xxxxx X. Xxxx | |
| Name: Xxxxx X. Xxxx | |||
| Title: General Counsel | |||
| Executive: | |||
| /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx | |||
[Signature
Page to Second Amended & Restated Employment Agreement]
EXHIBIT A
RESTRICTED
STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT,
dated as of 3 July 2009, between Virgin Media Inc., a Delaware corporation
(the “Company”), and
Xxxxx X. Xxxxxx (the “Executive”), effective as of
1 May 2009.
WHEREAS,
the Executive is employed by the Company under the Second Amended & Restated
Employment Agreement, effective as of 1 May 2009 (the “Employment Agreement”) and
which has a term thereunder which expires on 30 December 2010 (such term, as may
be extended by amendment of the Employment Agreement, the “Term”);
WHEREAS,
the Compensation Committee of the Board of Directors of the Company (the “Compensation Committee”) has
reviewed and approved the terms of this Agreement and the Employment
Agreement;
WHEREAS,
the Company wishes to grant to the Executive, and the Executive wishes to accept
from the Company, shares of common stock of the Company, par value $0.01 per
share (the “Restricted
Stock”), to be granted pursuant to the Virgin Media Inc. 2006 Stock
Incentive Plan (the “Plan”);
NOW,
THEREFORE, the parties hereto agree as follows:
1. Grant of Restricted
Stock. The Company hereby grants to the Executive, and the
Executive hereby accepts from the Company, 625,000 shares of Restricted Stock on
the terms and conditions set forth in this Agreement. This Agreement
is also subject to the terms and conditions set forth in the
Plan. Capitalized terms used but not defined herein shall have the
meanings set forth in the Plan.
2. Rights of Executive. Except
as otherwise provided in this Agreement, the Executive shall be entitled, at all
times on and after the date that the shares of Restricted Stock are issued, to
exercise all the rights of a stockholder with respect to the shares of
Restricted Stock (whether or not the Transfer Restrictions thereon shall have
lapsed), including the right to vote the shares of Restricted Stock and the
right, subject to Section 6 hereof, to receive dividends
thereon. Notwithstanding the foregoing, prior to the “Release Date”
(as defined in Section 4.1), the Executive shall not be entitled to transfer,
sell, pledge, hypothecate, assign or otherwise dispose of or encumber, the
shares of Restricted Stock (collectively, the “Transfer Restrictions”),
except that, as provided in Section 4.1, the Executive may sell such number of
shares as is reasonably necessary to pay for any US federal or state income tax
that may apply as a result of vesting upon the occurrence of the relevant Lapse
Date but in no event more than 45% of such shares.
3. Vesting and Lapse of
Transfer Restrictions. The Transfer Restrictions on the
Restricted Stock shall lapse and the Restricted Stock granted hereunder shall
vest as follows:
|
(i)
|
Annual Group Simple Cash
Flow. As to the number of shares set forth below if performance
conditions relating to annual group simple cash flow attributable to each
of the Company’s fiscal years shown below, established by the Compensation
Committee in respect of the Company’s 2009-2011 long-term incentive plan,
have been met, so long as the Executive has remained continuously employed
by the Company from the date of commencement of his employment through
December 31 of the relevant fiscal year shown
below:
|
|
No of Shares
|
Relevant Fiscal Year
|
Lapse Date
|
|
187,500
|
2009
|
May
15, 2010
|
|
125,000
|
2010
|
May
15,
2011
|
|
|
Notwithstanding
anything to the contrary provided in the Plan or otherwise, the Transfer
Restrictions on all of these shares of Restricted Stock which are then
outstanding shall not lapse and such shares of Restricted Stock shall not
vest solely due to the occurrence of an Acceleration
Event.
|
|
(ii)
|
Comprehensive List of
Objectives. As to the number of shares set forth below
if performance conditions relating to a comprehensive list of objectives
established by the Compensation Committee in respect of the Company’s
fiscal year below have been met, so long as the Executive has remained
continuously employed by the Company from the date of commencement of his
employment through December 31 of the relevant fiscal year shown
below:
|
|
No of Shares
|
Relevant Fiscal Year
|
Lapse Date
|
|
187,500
|
2009
|
May
15, 2010
|
|
125,000
|
2010
|
May
15, 2011
|
|
|
Notwithstanding
anything to the contrary provided in the Plan or otherwise, the Transfer
Restrictions on all of these shares of Restricted Stock which are then
outstanding shall not lapse and such shares of Restricted Stock shall not
vest solely due to the occurrence of an Acceleration
Event.
|
The
Compensation Committee shall meet to determine whether such performance
conditions have been met promptly after the completion by the Company of the
financial reports or other information in respect of an applicable fiscal year
necessary to make such determination. The restrictions on the shares
of Restricted Stock subject to this Section 3.1 shall lapse on the date that the
Compensation Committee determines that the applicable performance conditions
have been met in respect of an applicable fiscal year (such date, the “Lapse Date”), and the shares
of Restricted Stock shall be forfeited if the Compensation Committee determines
that such performance conditions have not been met. In no event shall
the date of such determination occur later than the last day of the fiscal year
immediately following the fiscal year to which the performance conditions
relate.
4. Escrow and Delivery of
Shares.
4.1 Certificates
representing the shares of Restricted Stock shall be issued and held by the
Company in escrow and shall remain in the custody of the Company until the
earlier of (i) the final Lapse Date (May 15, 2011) or (ii) the date of the
Executive’s termination of employment with respect to shares of Restricted Stock
that would vest on such date pursuant to the terms of the Employment Agreement
(the earlier of (i) and (ii), the “Release Date”); provided, that in
connection with any Lapse Date, the Company shall deliver to the Executive a
sufficient number of shares that have become vested on such Lapse Date with a
value equal to the Withholding Tax requirements, if any (but in no event more
than 45% of such vested shares) (the “Withholding
Shares”). As soon as practicable after the Release Date, the
shares of Restricted Stock that have become vested pursuant to Section 3 hereof
that have not previously been delivered to the Executive shall be delivered to
the Executive or the Executive’s estate, subject to the delivery of any
documents which the Company in its discretion may require as a condition to the
issuance of shares, and so long as the Executive has satisfied all applicable
Withholding Tax requirements with respect to the Restricted Stock.
4.2 The
Executive shall receive, hold, sell, or otherwise dispose of those shares
delivered to the Executive pursuant to Section 4.1 free and clear of the
Transfer Restrictions, but subject to compliance with all federal and state
securities laws.
4.3 Prior
to the Release Date (or such earlier date that is applicable to the Withholding
Shares), each stock certificate shall bear a legend in substantially the
following form:
“This
certificate and the shares of stock represented hereby are subject to the terms
and conditions (including forfeiture, restrictions against transfer and rights
of repurchase, if applicable) contained in the Restricted Stock Agreement (the
“Agreement”) between the registered owner of the shares represented hereby and
the Company. Release from such terms and conditions shall be made
only in accordance with the provisions of the Agreement, a copy of which is on
file in the office of the Secretary of Virgin Media Inc.”
5. Effect of Termination of
Employment for any Reason. Upon termination of the Executive’s
employment with the Company and its Affiliates, if applicable, for any reason,
the Executive shall forfeit the shares of Restricted Stock which are then
subject to the Transfer Restrictions, and, from and after such forfeiture, such
shares of Restricted Stock shall cease to be outstanding and the Executive shall
have no rights with respect thereto; provided, that, if
the Executive’s employment shall terminate after the end of a fiscal year of the
Company and prior to the date of the determination as to whether the performance
conditions applicable to such fiscal year have been met, the shares of
Restricted Stock subject to vesting in respect of such fiscal year shall remain
outstanding following the termination of the Executive’s employment and shall
vest or be forfeited when such determination is made, in either case based on
such determination; and provided, further,
that the shares of Restricted Stock shall be subject to vesting to the extent
provided in the Employment Agreement.
6. Dividend
Rights. All dividends declared and paid by the Company on
shares of Restricted Stock shall be deferred until the lapsing of the Transfer
Restrictions pursuant to Section 3 hereof (and shall be subject to forfeiture
upon forfeiture of the shares of Restricted Stock as to which such deferred
dividends relate). The deferred dividends shall be held by the
Company for the account of the Executive. Upon the Lapse Date, the
dividends allocable to the shares of Restricted Stock as to which the Transfer
Restrictions have lapsed shall be paid to the Executive (without
interest). The Company may require that the Executive invest any cash
dividends received in additional Restricted Stock which shall be subject to the
same conditions and restrictions as the Restricted Stock granted under this
Agreement.
7. No Right to Continued Employment. Nothing
in this Agreement shall be interpreted or construed to confer upon the Executive
any right with respect to continuance of employment by the Company or any of its
Affiliates, nor shall this Agreement interfere in any way with the right of the
Company or any such Affiliate to terminate the Executive’s employment at any
time.
8. Withholding of Taxes. The
Executive shall pay to the Company, or the Company and the Executive shall agree
on such other arrangements necessary for the Executive to pay, the applicable
federal, state and local income taxes required by law to be withheld (the “Withholding Taxes”), if any,
upon the vesting and delivery of the shares. The Company shall have
the right to deduct from any payment of cash to the Executive an amount equal to
the Withholding Taxes in satisfaction of the Executive’s obligation to pay
Withholding Taxes.
9. Modification
of Agreement. This Agreement may be modified, amended,
suspended or terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
10. Severability. Should
any provision of this Agreement be held by a court of competent jurisdiction to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full force
and effect in accordance with their terms.
11. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without giving effect to the conflicts of laws principles
thereof.
12. Successors in Interest;
Transfer. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure
to the benefit of the Executive’s heirs, executors, administrators and
successors. All obligations imposed upon the Executive and all rights
granted to the Company under this Agreement shall be binding upon the
Executive’s heirs, executors, administrators and successors. This
Agreement is not assignable by the Executive.
[The
remainder of this page is intentionally blank.]
|
|
|
|
Name: Xxxxx
X. Xxxx
Title: Secretary
and General Counsel
|
|
|
EXECUTIVE
|
|
|
Xxxxx
X. Xxxxxx
|
EXHIBIT B
Release Agreement
WHEREAS,
Xxxxx X. Xxxxxx (the “Executive”) was
employed by Virgin Media Inc. (the “Company”) as its
Chairman of the Board of Directors pursuant to the Second Amended and Restated
Employment Agreement, dated July 3, 2009 (the “Employment
Agreement”);
NOW,
THEREFORE, the Executive voluntarily, knowingly and willingly accepts the
payments and benefits to be made under the Employment Agreement (the “Payments
and Benefits”) in full and final settlement of any claims which the Executive
has brought or could bring against the Company in relation to the Executive’s
employment or the termination of that employment and agrees to the terms of this
Release Agreement.
1. The
Executive acknowledges and agrees that the Company is under no obligation to
offer the Executive the Payments and Benefits, unless the Executive consents to
the terms of this Release Agreement and does not revoke it pursuant to paragraph
5 hereof. The Executive further acknowledges that he is under no obligation to
consent to the terms of this Release Agreement and that the Executive has
entered into this Release Agreement freely and voluntarily after having been
advised to, and had the opportunity to, obtain legal advice in the United
States.
2. The
Executive voluntarily, knowingly and willingly releases and forever discharges
the Company and its Affiliates, together with their respective officers,
directors, partners, shareholders, employees, agents, and the officers,
directors, partners, shareholders, employees, agents of the foregoing, as well
as each of their predecessors, successors and assigns (collectively, “Releasees”), from any
and all charges, complaints, claims, promises, agreements, controversies, causes
of action and demands of any nature whatsoever that the Executive or his
executors, administrators, successors or assigns ever had, now have or hereafter
can, shall or may have against Releasees by reason of any matter, cause or thing
whatsoever arising prior to the time of signing of this Release Agreement by the
Executive. The release being provided by the Executive in this Release Agreement
includes, but is not limited to, any rights or claims relating in any way to the
Executive’s employment relationship with the Company, or the termination
thereof, or under any statute, including the United States 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 Executive Retirement Income Security Act of 1974, the Family and Medical
Leave Act of 1993, and any other U.S. or foreign federal, state or local law or
judicial decision.
3. The
Executive represents that he has not sought, directly or indirectly, any
personal recovery by means of any lawsuit or other claim against the Company or
any other Releasee based on any event arising out of the matters released in
paragraph 2.
4. Nothing
herein shall be deemed to release (i) any of the Executive’s rights to the
Payments and Benefits or (ii) any of the benefits that the Executive has accrued
prior to the date this Release Agreement is executed by the Executive under the
Company’s employee benefit plans and arrangements, or the Company’s Director
& Officer insurance programs) or (iii) any claim for indemnification as
provided under Section
11 of the Employment Agreement.
5. The
Executive acknowledges that he has been offered the opportunity to consider the
terms of this Release Agreement for a period of at least twenty-one (21) days,
although he may sign it sooner should he desire. This release of claims given by
the Executive herein will not become effective until seven days after the date
on which the Executive has signed it without revocation. Subject to
no revocation taking place, the Release Agreement will, upon signature by both
parties and the following the expiry of the revocation period, be treated as an
open document evidencing a binding agreement.
6. This
Release Agreement together with the Employment Agreement (as amended hereby)
constitute the entire agreement between the parties hereto, and supersede all
prior agreements, understandings and arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof.
7. Except
as provided in the next following sentence, all provisions and portions of this
Release Agreement are severable. If any provision or portion of this
Release Agreement or the application of any provision or portion of this Release
Agreement shall be determined to be invalid or unenforceable to any extent or
for any reason, all other provisions and portions of this Release Agreement
shall remain in full force and shall continue to be enforceable to the fullest
and greatest extent permitted by law; provided, however, that, to the maximum
extent permitted by applicable law, (i) if the validity or enforceability of the
release or claims given by the Executive herein is challenged by the Executive
or his estate or legal representative, the Company shall have the right, in its
discretion, to suspend any or all of its obligations hereunder during the
pendency of such challenge, and (ii) if, by reason of such challenge, such
release is held to be invalid or unenforceable, the Company shall have no
obligation to provide the Payments and Benefits.
11. This
Release Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
IN
WITNESS WHEREOF, the parties have executed this Release Agreement as of
______________ .
| THE EXECUTIVE | |||
|
Xxxxx
X. Xxxxxx
|
|||
| VIRGIN MEDIA INC. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
