TIME WARNER CABLE LETTERHEAD December 19, 2005 Mike LaJoie Executive Vice President, Chief Technology Officer Time Warner Cable 290 Harbor Drive Stamford, CT 06902 Dear Mike:
Exhibit 10.41
TIME WARNER CABLE LETTERHEAD
December 19, 2005
Xxxx XxXxxx
Executive Vice President, Chief Technology Officer
Time Warner Cable
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Executive Vice President, Chief Technology Officer
Time Warner Cable
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Dear Xxxx:
In accordance with Section 4.10 of the Employment Agreement (the “Agreement”) dated as of June 1,
2000 between you and Time Warner Entertainment Company, LP., a subsidiary of Time Warner Cable
Inc., which Agreement expires on December 31, 2005, the Company hereby offers to extend the
Agreement with the same terms and conditions (except as amended below) until December 31, 2008.
Section 2.1 of the Agreement is hereby amended to provide that you shall serve as Executive Vice
President & Chief Technology Officer and that you shall report to the Chief Executive Officer of
the Company. Section 3.1 of the Agreement is hereby amended to provide that your Base Salary, as
defined in the Agreement, will be an amount not less than $420,600.00. Section 3.2 of the Agreement
is hereby amended to provide that your Target Bonus, as defined in the Agreement shall be 80%,
subject to the Company’s discretion as described in the Agreement. No other provisions of Sections
2.1, 3.1, 3.2 or any other provisions of the Agreement are hereby amended.
Please indicate your acceptance of the foregoing extension of’ the Agreement by signing this letter
and returning it to the Company by December 31, 2005. Failure to do so will be deemed an election
by you to terminate your employment without cause pursuant to Section 4.3 of the Agreement.
By:
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/s/ Xxxx Xxxxxxxx-Xxxxxxxxx | |||
| Executive Vice President, General Counsel and Secretary | ||||
Accepted: |
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/s/ Xxxx XxXxxx |
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12/22/2005 |
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| Title: Executive Vice President, Chief Technology Officer | ||
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) made as of June 1, 2000, between
Time Warner Cable, a division of Time Warner Entertainment Company, L.P., a Delaware limited
partnership (the “Company”), and Xxxxxxx Xxxxxx (the “Executive”).
Pursuant to the Employment Agreement dated as of November 1, 1998 between the Company and the
Executive (the “Original Agreement”), the Company had secured the services of the Executive on a
full-time basis for the period to and including April 30, 2001, on and subject to the terms and
conditions set forth in the Original Agreement.
The Company and the Executive now wish to amend and restate the Original Agreement, and to
continue Executive’s term of employment, on the terms and conditions provided herein.
The parties therefore agree as follows:
1. Term of Employment. The Executive’s term of employment, as this phrase is used
throughout this Agreement, shall be for the period beginning January 1, 2000, and ending on
December 31, 2002, subject, however, to earlier termination as expressly provided herein.
2. Employment.
2.1. The Company shall, during the term of employment, employ the Executive, and the Executive
shall serve, as Vice President, Corporate Development. During the term of employment, the Executive
shall have such functions, duties, powers and responsibilities as the Company may from time to time
delegate to the Executive, and shall perform such functions, duties, powers and responsibilities at
such locations as the Company shall determine,
it being understood that the Company will pay or reimburse reasonable moving expenses if it
decides to transfer the Executive to another location. The Executive agrees, subject to his/her
election as such and without additional compensation, to serve during the term of employment in
such particular additional offices of comparable stature and responsibility in the Company and its
affiliated companies as the Company may require and to serve as a director and as a member of any
committee of the Board of Directors of the Company and its affiliated companies to which he/she may
be elected from time to time. During the term of employment, (i) the Executive’s services shall be
rendered on a substantially full-time, exclusive basis, (ii) he/she will apply on a full-time basis
all of his/her skill and experience to the performance of his/her duties in such employment, and
shall report to the Senior Vice President Corporate Development of the Company, or to such other
corporate officer(s) more senior than the Executive as the Senior Vice President Corporate
Development shall determine, and (iii) he/she shall have no other employment and, without the prior
written consent of the Senior Vice President Corporate Development of the Company, no outside
business activities which require the devotion of substantial amounts of the Executive’s time.
2.2. In addition to Executive’s obligations under Section 8.1.4, in performing his or her
duties hereunder, Executive shall comply with the Company’s and Time Warner Inc.’s (“TWI”) written
policies on conflicts of interest, service as a director of another company, and other policies and
procedures of the Company and TWI, including as described in TWI’s Statement of Corporate Policy
and Compliance Program Manual, as may be amended or revised from time to time, copies of which, as
currently in effect, Executive acknowledges having received.
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2.3. Following the term of employment, regardless of whether Executive is considered an
employee of the Company, Executive shall not provide any services to or take any actions on behalf
of the Company.
3. Compensation.
3.1. Base Salary. The Company shall pay or cause to be paid to the Executive, during
the term of employment, a base salary at the rate of not less than $202,800.00 per annum (the “Base
Salary”). The Company may increase, but not decrease, the Base Salary at any time and from time to
time during the term of employment.
3.2. Bonus. In addition to Base Salary, the Executive shall be entitled to receive an
annual cash bonus based on the performance of the Company and of the Executive. The Executive’s
target bonus (the “Target Bonus”) shall be 40% of the Executive’s Base Salary, but the Executive
acknowledges that his/her actual bonus (the “Annual Bonus”) will vary depending upon the
performance of the Company and the Executive. The Company may increase, but not decrease, the
Target Bonus at any time and from time to time during the term of employment. The Company’s
determination of the amount, if any, of Annual Bonuses to be paid to the Executive under this
Agreement shall be final and conclusive. Payments of any bonus compensation under this Section 3.2
shall be made in accordance with the then current practices and policies of the Company.
3.3. Reimbursement. The Company shall pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by the Executive during the term of employment in the
performance of his/her services hereunder upon presentation of expense statements or vouchers or
such other supporting information as the Company may customarily require of its executives at
Executive’s level (as defined in Section 3.6).
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3.4. No Anticipatory Assignments. Except as specifically contemplated hereunder,
neither the Executive nor any legal representative or beneficiary designated by him/her shall have
any right, without the prior written consent of the Company, to assign, transfer, pledge,
hypothecate, anticipate or commute any payment due in the future to such person pursuant to any
provision of this Agreement, and any attempt to do so shall be void and will not be recognized by
the Company.
3.5. Indemnification. To the extent not prohibited by applicable law at the time of
the assertion of any liability against the Executive, the Company shall indemnify the Executive to
no lesser extent than provided in the By-Laws of Time Warner Inc. and the Partnership Agreement of
Time Warner Entertainment Company, L.P. (whichever is the greater extent of indemnification) as in
effect on the date hereof or the date of any predecessor employment agreement between the Company
and Executive (whichever is the greater extent of indemnification) (the provisions of which are
hereby incorporated by reference herein); and Executive will be entitled the benefits of any
amendments or additions to such indemnification provisions that add to or broaden the protection
afforded to the Executive by those provisions.
3.6. Executive Group. References in this Agreement to employee at Executive’s level
shall mean members of the Executive Group (defined as individuals with an assigned executive
compensation level with eligibility for the Long Term Cash Plan and Tier I Level Stock Options or
such other substitute plans as the Company may designate from time to time).
4. Termination. The Company shall have the right to terminate the term of employment
for cause or without cause; provided, however, that if such termination is without cause, Executive
will be entitled to make an election as provided in Section 4.2 hereunder.
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Executive shall have the right to terminate the term of employment (a) because of a material
breach of this Agreement by the Company and upon such termination to make an election as provided
for in Section 4.4 hereunder; (b) on 90 days notice as provided in Section 4.3 hereunder; and (c)
pursuant to Executive’s exercise of the Retirement Option, pursuant to Section 4.11 hereunder.
4.1. Termination by Company for Cause. The Company may terminate for cause the term
of employment and all of the Company’s obligations hereunder, other than its obligations set forth
below in Section 4.1.1. Termination by the Company for cause shall mean termination by the Company
because of (a) the Executive’s conviction (treating a nolo contendere plea as a conviction) of a
felony (whether or not any right to appeal has been or may be exercised); or (b) the Executive’s
willful refusal without proper cause to perform his/her obligations under this Agreement; or (c)
the Executive’s material breach of any of the covenants provided for in Sections 2.2 or 8; or (d)
the Executive’s engaging in willful misconduct that results in a substantial financial loss to, or
has a substantial adverse effect on the reputation of, the Company. Such termination shall be
effected by written notice thereof delivered by the Company to the Executive and shall be effective
as of the date of such notice; provided, however, that if (i) such termination is because of the
Executive’s willful refusal without proper cause to perform any one or more of his/her obligations
under this Agreement, (ii) such notice is the first such notice of termination for any reason
delivered by the Company to the Executive hereunder, and (iii) within five days following the date
of such notice, the Executive shall cease his/her refusal and shall use his/her best efforts to
perform such obligations, the termination shall be deemed null and void.
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4.1.1. In the event of termination of the term of employment by the Company for cause in
accordance with the foregoing procedures, without prejudice to any other rights or remedies that
the Company may have at law or equity, the Company shall have no further obligations to the
Executive other than (i) to pay the Base Salary accrued through the effective date of such
termination; (ii) to pay any Annual Bonus pursuant to Section 3.2 to the Executive in respect of
any year prior to the year in which such termination of employment is effective which has not yet
been paid as of such termination; and (iii) with respect to any rights the Executive has under
Section 7 through the effective date of termination (except as may be otherwise specifically
provided in any such plan or program as of the date of termination) or pursuant to any insurance or
other benefit plans or arrangements of the Company maintained for the benefit of its Executive
Group. Executive hereby disclaims any right to receive a pro rata portion of his or her Annual
Bonus with respect to the year in which such termination occurs.
4.2. Termination by Company Without Cause. Provided that notice and termination has
not previously been given under any other Section hereof, the Company shall have the right to
terminate the term of employment without cause at any time. Such termination shall be effected by
written notice thereof delivered by the Company to the Executive and shall be effective as of the
date of such notice. If the Company elects to terminate the term of employment without cause, the
Executive shall be entitled to elect, by written notice delivered within thirty days of the
Company’s notice of termination of the term of employment, to receive, at the Executive’s option,
either (i) a lump sum payment equivalent to thirty months’ Base Salary and Annual Bonus, as
provided for in Section 4.2.1 hereunder or (ii) periodic payments equivalent to thirty months’ Base
Salary and Annual Bonus, as provided for in Sections 4.2.2 hereunder. The Executive shall also be
entitled to receive executive level
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outplacement services (including reasonable office space as designated by the Company) for a
period of one year after the date of notice of such termination.
4.2.1. Lump Sum. In the event the Executive shall elect, pursuant to Section 4.2, to
receive a lump sum payment, he/she shall receive a one-time payment equivalent to thirty months’
Base Salary (as such Base Salary is in effect immediately prior to the notice of the termination)
and Annual Bonus, with the Annual Bonus due the Executive in respect thereof being equal to the
greater of (a) the Executive’s then applicable Target Bonus amount multiplied by 2.5, or (b) the
average of the regular Annual Bonus amounts (excluding the amount of any special or spot bonuses)
received by the Executive from the Company for the two years immediately preceding the year of
termination of the term of employment, multiplied by 2.5; provided, however, that if such
termination occurs prior to the payment of two Annual Bonuses to the Executive by the Company, then
the calculation of the Annual Bonus payable under clause (b) of this Section 4.2.1 shall be
Executive’s Target Bonus (if no bonuses paid), or the average of the Executive’s Target Bonus
amount and the Annual Bonus paid (if only one Annual Bonus has been paid).
4.2.2. Periodic Payments. In the event the Executive shall elect, pursuant to Section
4.2, to receive periodic payments, he/she shall be placed on a leave of absence (the “Leave”) as an
inactive employee of the Company for thirty months following the date of termination of the term of
employment, whether or not he/she becomes disabled as provided for in Section 5 hereunder. During
the Leave, the Executive shall not be required to provide any services to the Company and shall
receive (i) a Base Salary at an annual rate equal to his/her Base Salary as is in effect
immediately prior to the notice of termination, and (ii) an Annual Bonus in respect of each
calendar year or portion thereof (in which case a pro rata
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portion of such Annual Bonus will be payable) during such period equal to the greater of (a)
the Executive’s then-applicable Target Bonus amount, or (b) the average of the regular Annual Bonus
amounts (excluding the amount of any special or spot bonuses) received by the Executive from the
Company for the two years immediately preceding the year of termination of the term of employment
(subject to the proviso set forth in Section 4.2.1(b)). If the Executive accepts full-time
employment with any other person or entity during the Leave or notifies the Company in writing of
his/her intention to terminate his/her status as an inactive employee on Leave, then the Executive
shall cease to receive the periodic Base Salary and Annual Bonus payments hereunder and the
Executive shall be entitled to receive, within thirty days after such commencement or effective
date of such employment or termination of status as an inactive employee on Leave, a lump sum
payment in an amount representing the balance of the Base Salary and regular Annual Bonuses as the
Executive would have been entitled to receive pursuant to this Section 4.2.2 had the Executive
remained an inactive employee on Leave. Notwithstanding the preceding sentence, if the Executive
accepts full-time employment with any Affiliate (as defined below) of the Company, then the
periodic Base Salary and Annual Bonus payments provided for in this Section 4.2.2 shall cease and
the Executive shall not be entitled to any such lump sum payment. For purposes of this Agreement,
the term “Affiliate” means any entity which, directly or indirectly, controls, is controlled by or
is under common control with, the Company.
4.3. Termination By Executive Without Cause. Except as provided in Section 4.4 or by
reason of Executive’s retirement under the terms of Section 4.11 or of any retirement plan in which
employees of the Company are generally eligible to participate, Executive may not terminate his or
her employment under this Agreement except upon 90 days prior written notice and only if notice of
termination has not previously been given under any
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other Section hereof. Upon the effectiveness of such termination. Executive’s employment with
the Company will terminate, and the Company shall have no further obligations to the Executive
other than (i) to pay the Base Salary accrued through the effective date of such termination; (ii)
to pay any Annual Bonus pursuant to Section 3.2 to the Executive in respect of any year prior to
the year in which such termination of employment is effective which has not yet been paid as of
such termination; and (iii) with respect to any rights the Executive has under Section 7 through
the effective date of termination (except as may be otherwise specifically provided in any such
plan or program as of the date of termination) or pursuant to any insurance or other benefit plans
or arrangements of the Company maintained for the benefit of its Executive Group. Executive hereby
disclaims any right to receive a pro rata portion of his or her Annual Bonus with respect to the
year in which such termination occurs.
4.4. Termination by Executive for Material Breach by the Company. The Executive shall
have the right, exercisable by delivery of written notice to the Company, to terminate the term of
employment effective fifteen days after the giving of such notice, if, at the time of such notice,
the Company shall be in material breach of its obligations hereunder; provided that, with the
exception of a breach of clause (a) below, such notice shall be deemed null and void and the term
of employment shall not so terminate if within such fifteen-day period the Company shall have cured
all such material breaches of its obligations hereunder. The parties acknowledge and agree that a
material breach by the Company shall include, but not be limited to, (a) the Company failing to
cause the Executive to serve in the capacities set forth in Section 2; and (b) the Company
violating the provisions of Section 2 with respect to the Executive’s authority, functions, duties
or responsibilities (whether or not accompanied by a change in title). After the effective date of
such termination, the Executive shall have no further obligations or
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liabilities to the Company whatsoever (except for his/her obligation under Section 4.8, if
any, and his/her obligations under Section 8 and 9, which shall survive such termination). If
Executive terminates the term of employment because of a material breach of the Agreement by the
Company, Executive shall be entitled to elect, by written notice delivered within fifteen days of
Executive’s notice of termination, to receive, at Executive’s option either (i) a lump sum payment
equivalent to thirty months’ Base Salary and Annual Bonus, or (ii) periodic payments equivalent to
thirty months’ Base Salary and Annual Bonus, in accordance with the provisions of Sections 4.2.1
and 4.2.2 hereunder, respectively.
4.5. During the period the Executive is on Leave pursuant to Section 4.2.2 and during any
period of disability described in Section 5, the Executive shall continue to be eligible to receive
the benefits required to be provided to the Executive under Section 7 to the extent such benefits
are maintained in effect by the Company for members of its Executive Group (as defined in Section
3.6); provided, however, the Executive shall not be entitled to any additional awards or grants
under any stock option, restricted stock or other cash or stock-based long term incentive plan. At
the time the Executive leaves the payroll of the Company pursuant to the provisions of Sections 4,
4.1, 4.2, 4.4, 5 or 6, the Executive’s rights to benefits and payments under any benefit plans or
any insurance or other death benefit plans or arrangements of the Company or under any stock
option, restricted stock, stock appreciation right, bonus unit, management incentive or other plan
of the Company shall be determined in accordance with the terms and provisions of such plans and
any agreements under which such stock options, restricted stock or other awards were granted.
4.6. In the event the term of employment and the Executive’s employment with the Company is
terminated pursuant to Sections 4, 4.1, 4.2, 4.3, 4.4, 4.1 1, 5 or
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6 (and regardless of whether the Executive elects clause (i) or (ii) as provided in Sections
4.2 and 4.4), the Executive shall not be entitled to any other notice or severance or to be paid
for any unused sabbatical, the payments provided for in such Sections being in lieu thereof. The
Executive shall be paid out for unused vacation time accrued in the year of termination of
employment only.
4.7. Any obligation of the Executive to mitigate his/her damages pursuant to Section 4.9 shall
not be a defense or offset to the Company’s obligation to pay the Executive in full the amounts
provided in Sections 4.2.1 or 4.2.2 or the timely and full performance of any of the Company’s
other obligations under this Agreement.
4.8. In partial consideration for the Company’s obligation to make the payments described in
Sections 4.2 and 4.4, or as a result of Executive’s election of the Retirement Option described in
Section 4.11 herein, Executive shall execute and deliver to the Company a release which shall
include the substance of the terms of the Separation Agreement and Release in the form as set forth
in Exhibit A or such other form as is satisfactory to the Company. The Company shall deliver the
form of such release to Executive within a reasonable period of time after the Executive has made
the election set forth in Sections 4.2 or 4.4, or within a reasonable period of time following
Executive’s providing a Notice of Election of Retirement Option under Section 4.11 therein.
Executive shall execute and deliver such release to the person designated for receipt of notices
under Section 10.1 within thirty days of his/her receipt thereof from the Company. If Executive
shall fail to execute and so deliver to the Company such release within thirty days of his/her
receipt thereof from the Company, Executive shall receive, in lieu of the payments described in
Sections 4.2, 4.4, or 4.11, a lump sum cash payment in an amount
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determined in accordance with the severance policies for non-contract Executives of the
Company then applicable.
4.9. Mitigation. In the event of the termination of employment by the Executive as a
result of a material breach by the Company of any of its obligations hereunder, the Executive shall
not be required to seek other employment in order to mitigate his/her damages hereunder, and,
regardless of the period with respect to which paid, no compensation or other payments from any
other employment, services or activity of the Executive shall be applied by the Company in
reduction of or be payable or paid by the Company pursuant to Sections 4.2 and 4.4; provided,
however, that, notwithstanding the foregoing, if there are any damages hereunder by reason of the
events of termination described above which are contingent on a change (within the meaning of
Section 280G(b)(2)(A)(I) of the Internal Revenue Code), the Executive shall be required to mitigate
such damages hereunder, including any such damages theretofore paid, but not in excess of the
extent, if any, necessary to prevent the Company from losing any tax deductions to which it
otherwise would be entitled in connection with such damages if they were not so contingent on a
change. With respect to the preceding sentences, any payments or rights to which the Executive is
entitled by reason of the termination of the term of employment by the Executive pursuant to
Section 4.4 or in the event of the termination of the term of employment by the Company pursuant to
Section 4.2 shall be considered as damages hereunder.
4.10. Effect of Non-Tender of Subsequent Agreement. Assuming that Executive has not
yet attained the age of sixty-five at the end of the term of this Agreement, in the event that the
Company does not offer Executive a new Employment Agreement similar to this Employment Agreement
with a term of at least thirty months, the Executive shall be entitled
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to receive, as thirty months’ severance, all of the benefits and payments as described in
Section 4.2, with Executive being entitled to make the election outlined in Section 4.2. Except as
provided herein, the Company shall not be obliged to further employ the Executive. If the Executive
has attained the age of sixty-five by the end of the term of this Agreement, nothing herein shall
oblige the Company to tender him/her a similar agreement, and no severance shall be due Executive
in the event of the Company’s failure to do so.
4.11. Retirement Option. Provided that, at the time of election, the Executive (a) is
actively employed by the Company, (b) has reached the age of fifty-five, and (c) has been employed
by the Company as member of the Executive Group (as defined in Section 3.6) for at least five years
the Executive may elect, by providing written notice to the Company in the form attached hereto as
Exhibit “B,” the Retirement Option, as outlined below:
4.11.1. Within fifteen days of the Executive’s exercise of the Retirement Option, the Company
and the Executive will attempt to agree upon the length a “Transition Period” of between six and
twelve months. The Transition Period shall commence as of the date of Executive’s written notice to
the Company of his/her Retirement Option election.
4.11.1.1. If the parties are unable, within the fifteen-day period, to agree on the length of
the Transition Period, then the Transition Period shall be for six months.
4.11.1.2. During the Transition Period, the Executive will remain actively employed, at
Executive’s then-current rate of compensation, and, in addition to Executive’s other regular
functions and responsibilities, will assist the Company in identifying, recruiting, and training
the Executive’s replacement. The Executive will continue to be responsible for the management,
direction, and performance of his/her division, operating unit
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or department during the Transition Period to the full extent that Executive was so
responsible prior to the Transition Period.
4.11.2. At the conclusion of the Transition Period, the term of employment hereunder will
cease and Executive will become an advisor to the Company (the “Advisory Period”) as follows:
4.11.2.1. The Advisory Period will extend for thirty-six months. During the Advisory Period,
the Executive will receive compensation as follows: (a) for the first twelve months, Executive’s
then-current Base Salary and bonus; (b) for the second twelve months, Base Salary, plus 50% bonus;
and (c) for the third twelve months, Base Salary only. The bonus amount paid in (a) and (b) will be
calculated as follows: The bonus amount paid will be the greater of Target Bonus or the average of
the two most recent full year Annual Bonuses earned (excluding any special or spot bonuses). All
payments pursuant to this subsection shall be made in accordance with the Company’s ordinary timing
and procedures for salary and bonus compensation.
4.11.2.2. The Executive will continue to vest in any outstanding stock options and long-term
cash incentives (or any other similar plan) during the Advisory Period; however, the Executive will
not be entitled to any additional awards or grants. The Executive will also continue to be eligible
to participate in any deferred compensation plans and any Company-sponsored benefit plans, savings
plans, pension plans and group insurance plans (including medical, dental and vision care,
long-term disability, and life insurance) as if he/she were actively employed during the Advisory
Period. If the Executive elected premium reimbursement from the Company in lieu of Company-paid
group term life insurance, the payments in effect at the end of the Transition Period will be
continued until the end of the
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Advisory Period. If the Executive did not elect premium reimbursement from the Company, group
term life insurance equal to the amount provided at the end of the Transition Period will be
continued until the end of the Advisory Period.
4.11.2.3. The Executive will not be provided with office space or secretarial services by the
Company during the Advisory Period. However, as soon as possible following the end of the
Transition Period, the Executive will receive a lump-sum payment of $10,000, less appropriate taxes
and deductions, as reimbursement for office expenses incurred during the Advisory Period. No
further payments or reimbursements will be made for office Space or secretarial services during the
Advisory Period.
4.1 1.2.4. During the Advisory Period, the Executive will be eligible for reimbursement of
financial and estate planning expenses, in the same amount and under the same terms as other
Executives at Executive’s level.
4.11.2.5. The Executive shall not be eligible for a Company-provided car or car allowance
during the Advisory Period. Any Company-provided car in the possession of the Executive will be
returned by the Executive to the Company prior to the commencement of the Advisory Period.
4.11.2.6. During the Advisory Period, the Executive will provide such advisory services
concerning the business, affairs and management of the Company as may be requested by the Company’s
management, but shall not be required to devote more than five days per month (up to eight hours
per day), to such services. The services shall be performed at a time and place mutually convenient
to both parties. The Company will reimburse the Executive for any expenses reasonably and
necessarily incurred in providing such
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services, other than expenses of the nature set forth in Section 4.1 1.2.3. The Company may
require proof of the expenses incurred, via receipts or other appropriate documentation.
4.1 1.2.7. The election of this Retirement Option, including the compensation and benefits
payable during the Transition Period and the Advisory Period described herein above, are in lieu of
any and all benefits, compensation, and payments available under this Agreement. Executive shall
have no further rights to such compensation and benefits thereunder, except as outlined herein,
once Executive elects this Retirement Option. Executive will continue to be bound to Executive’s
obligations under this Agreement, except where expressly modified herein.
4.11.2.8. If the Executive accepts other employment during the Advisory Period, (a) he/she
will be terminated from payroll and will receive a lump-sum payment for the balance of the salary
and bonuses payable during the Advisory Period and (b) his/her participation in all incentive,
benefit and insurance plans or perquisites of the Company including Stock Option and Long Term Cash
Plans, shall be determined in accordance with Company procedures and plan documents.
Notwithstanding the preceding sentence, if the Executive accepts employment with any not-for-profit
Entity (defined as an entity that is exempt or in the process of obtaining exemption from federal
taxation under Section 501(c)(3) of the Internal Revenue Code), then the Executive shall be
entitled to remain on the payroll of the Company and receive the payments as provided above.
4.11.2.9. Unless specifically requested by the Company, the Executive will not be expected to
attend any management meetings, trade shows, conferences, or other similar events or activities,
and will not be reimbursed for the costs of such activities during the Advisory Period.
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4.11.2.10. The Executive’s election of the Retirement Option as outlined herein shall be
irrevocable.
4.11.2.11. The Executive shall, in partial consideration for the payments to be made pursuant
to Executive’s election of the Retirement Option, execute and deliver to the Company a release as
described in Section 4.8 herein.
5. Disability. Provided that an effective notice of termination has not previously
been given under any Section hereof, if Executive becomes ill or is injured or disabled during the
term of this Agreement such that Executive fails to perform all or substantially all the duties to
be rendered hereunder and such failure continues for a period in excess of twenty-six consecutive
weeks (a “Disability”), the Company may terminate the term of employment of Executive under this
Agreement upon written notice to Executive at any time and thereupon Executive shall be entitled to
receive (i) any earned and unpaid Base Salary accrued through the date of such termination, (ii)
subject to the terms thereof, any benefits which may be due to Executive under the provisions of
any benefit plans, savings plans, pension plans, and group insurance plans, and (iii) a lump sum
cash payment equal to two and one-halftimes the sum of the Executive’s then current Base Salary
plus the greater of (a) the average of his/her Annual Bonus amount paid over the last two years
(subject to the proviso set forth in Section 4.2.1(b)), multiplied by 2.5, or (b) the Executive’s
then applicable Target Bonus amount multiplied by 2.5.
6. Death Benefit; Life Insurance. Provided that the term of employment has not been
earlier terminated hereunder, upon the death of the Executive, this Agreement and all benefits
hereunder shall terminate (except as otherwise provided in any benefit, savings, incentive or other
plan or program of the Company), except that the Executive’s estate (or a
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designated beneficiary thereof) shall be entitled to receive: 1) If Company paid Life
Insurance above $50,000 has been waived, Company paid Life Insurance of $50,000 (and Executive will
be entitled to his/her Group Universal Life Insurance death benefit from the insurance company, if
any has been elected); or, 2) Company paid Life Insurance equal to thirty months of Executive’s
Base Salary plus bonus compensation based on the greater of (a) the average of the regular Annual
Bonus amounts (excluding the amount of any special or spot bonuses) received by the Executive from
the Company for the most recent two years (subject to the proviso set forth in Section 4.2.1(b)),
times 2.5, or (b) the Executive’s then applicable Target Bonus amount multiplied by 2.5.
Further, during the period the Executive is receiving periodic payments under Section 4.2.2,
the Executive will be provided with the Life Insurance benefit available prior to termination. If
the Executive elected premium reimbursement from the Company in lieu of full group term life
insurance, the payments in effect prior to the date notice of termination is given will be
continued through the end of the salary continuation period. If the Executive did not elect premium
reimbursement from the Company, group term life insurance equal to the amount provided prior to the
date notice of termination is given will be continued through the end of the salary continuation
period.
7. Benefits. Except as otherwise provided herein, during the term of employment, the
Executive shall be eligible to participate in any pension, profit-sharing, stock option, group
insurance, hospitalization, medical, dental, accident, disability or similar plan or program of the
Company now existing or established hereafter to the extent that he/she is eligible under the
general provisions thereof. The Executive shall also be entitled to receive other
18
benefits generally available to all members of the Executive Group, to the extent that he/she
is eligible therefor.
8. Protection of Confidential Information; Non-competition; Non-solicitation.
8.1. Covenants. The Executive acknowledges that his/her employment by the Company
(which, for purposes of this Section 8 shall mean the Company and its affiliated entities) will,
throughout the term of employment, bring him/her into close contact with many confidential affairs
of the Company, including information about costs, profits, markets, sales, products, key
personnel, pricing policies, trade secrets, customer lists, operational methods, technical
processes and other business affairs and methods and other information not readily available to the
public, and plans for future development (collectively, the “Confidential Information”). The
Executive further acknowledges that the business of the Company is international in scope, that its
products are marketed throughout the world, that the Company competes in nearly all of its business
activities with other organizations that are or could be located in nearly any part of the world
and that the nature of the Executive’s services, position and expertise are such that he/she is
capable of competing with the Company from nearly any location in the world. In recognition of the
foregoing, the Executive covenants and agrees:
8.1.1. The Executive will keep secret all Confidential Information of the Company, including
without limitation, the terms and provisions of this Agreement, and will not disclose such matters
to anyone outside of the Company, either during or after the term of employment, except with the
Company’s written consent, provided that (i) the Executive shall have no such obligation to the
extent such matters are or become publicly known other than as a result of the Executive’s breach
of his/her obligations hereunder, (ii) the Executive may, after
19
giving prior notice to the Company to the extent practicable under the circumstances, disclose
such matters to the extent required by applicable laws or governmental regulations or judicial or
regulatory process, and (iii) the Executive may disclose the terms and provisions of this Agreement
to his/her spouse and legal, tax and financial advisors.
8.1.2. The Executive will deliver promptly to the Company upon termination of the term of
employment or at any other time the Company may so request, at the Company’s expense, all
memoranda, notes, records, reports and other documents (and all copies thereof) relating to the
Company’s business, which he/she obtained while employed by, or otherwise serving or acting on
behalf of, the Company and which he/she may then possess or have under his/her control.
8.1.3. Executive will not at any time denigrate, ridicule, or intentionally criticize the
Company or any of its products, properties, Executives, officers or directors, including, without
limitation, by way of news interviews, or the expression of personal views, opinions, or judgments
to the news media.
8.1.4. Executive will not at any time during the term of employment and for a period of one
year after termination of the term of employment for any reason, solicit (or assist or encourage
the solicitation of) any Executive of the Company to work for Executive or for any person or entity
in which Executive owns or expects to own more than a 1% equity interest or for which Executive
serves or expects to serve as an Affiliated Person (as defined in Section 8.1.5 herein). For the
purposes of this Section, the term “solicit any Executive” shall mean Executive’s contacting, or
providing information to others who may be expected to contact, any Executive of the Company
regarding their employment status, job satisfaction, interest in seeking employment with Executive
or any Affiliated Person or any
20
related matter, but shall not include general print advertising for personnel or responding to
an unsolicited request for a personal recommendation for or evaluation of an Executive of the
Company.
8.1.5. Executive hereby expressly covenants and agrees that he/she will not, at any time
during the term of employment and for a period of one year after the termination of the term of
employment for any reason, be or become an officer, director, partner or Executive of or consultant
to or act in any managerial capacity with or own any equity interest in any person or entity (an
“Affiliated Person”) which is a “Competitive Business Entity” (as such term is defined on Exhibit C
hereto); provided, however, that ownership of less than 1% of the outstanding equity securities of
any entity listed on any national securities exchange or traded on the National Association of
Securities Dealers Automated Quotation System shall not be prohibited hereby.
8.2. Specific Remedy. In addition to such other rights and remedies as the Company
may have at equity or in law with respect to any breach of this Agreement, if the Executive commits
a material breach (or such a breach is threatened) of any of the provisions of Sections 2.2, 8.1,
or 9, the Company shall have the right and remedy to have such provisions specifically enforced by
any court having equity jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Company and that money damages will not
provide an adequate remedy to the Company.
9. Ownership of Work Product. The Executive acknowledges that during the period the
Executive is (and has been) employed by the Company, he/she may conceive of, discover, invent or
create inventions, improvements, new contributions, literary property, material, ideas and
discoveries, whether patentable or copyrightable or not (all of the foregoing
21
being collectively referred to herein as “Work Product”), and that various business
opportunities shall be presented to him/her by reason of his/her employment by the Company. The
Executive acknowledges that, unless the Company otherwise agrees in writing, all of the foregoing
shall be owned by and belong exclusively to the Company and that he/she shall have no personal
interest therein, provided that they are either related in any manner to the business (commercial
or experimental) of the Company, or are, in the case of Work Product, conceived or made on the
Company’s time or with the use of the Company’s facilities or materials, or, in the case of
business opportunities, are presented to him/her for the possible interest or participation of the
Company. The Executive shall further, unless the Company otherwise agrees in writing, at any time
(i) promptly disclose any such Work Product and business opportunities to the Company; (ii) assign
to the Company, upon request and without additional compensation, the entire rights to such Work
Product and business opportunities; (iii) sign all papers the Company deems necessary to carry out
the foregoing; and (iv) give testimony in support of his/her inventorship or creation in any
appropriate case. The Executive agrees that he/she will not assert any rights to any Work Product
or business opportunity as having been made or acquired by him/her prior to the date of this
Agreement (or predecessor Agreements with the Company) except for Work Product or business
opportunities, if any, disclosed to and acknowledged by the Company in writing prior to the date
hereof (or thereof). The provisions of this Section are in addition to, and not in limitation of,
any separate agreement regarding similar matters executed by the Executive.
10. Notices. All notices, requests, consents and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally, or mailed first-class, postage prepaid, by registered or
22
certified mail, as follows (or to such other or additional address as either party shall
designate by notice in writing to the other in accordance herewith):
10.1. If to the Company:
Time Warner Cable
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-2266
Attention: General Counsel
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-2266
Attention: General Counsel
10.2. If to the Executive, to the address set forth on the records of the
Company.
11. General.
11.1. Governing Law. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without regard to New York’s choice of law
provisions.
11.2. Captions. The section headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of this Agreement.
11.3. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof and supersedes all prior
agreements, arrangements and understandings, written or oral, between the parties.
11.4. No Other Representations. No representation, promise or inducement has been
made by either party that is not embodied in this Agreement, and neither party shall be bound by or
be liable for any alleged representation, promise or inducement not so set forth.
11.5. Assignability. This Agreement and the Executive’s rights and obligations
hereunder may not be assigned by the Executive. This Agreement will be binding on any successors or
assigns of the Company.
23
11.6. Amendments; Waivers. This Agreement may be amended, modified, superseded,
canceled, renewed or extended, and the terms or covenants hereof may be waived only by written
instrument executed by both of the parties hereto, or in the case of a waiver, by the party waiving
compliance. The failure of either party at any time or times to require performance of any
provision hereof shall in no manner affect such party’s right at a later time to enforce the same.
No waiver by either party of the breach of any term or covenant contained in this Agreement,
whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term
or covenant contained in this Agreement.
11.7. Beneficiaries. Whenever this Agreement provides for any payment to the
Executive’s estate, such payment may be made instead to such beneficiary or beneficiaries as the
Executive may designate in writing filed with the Company. The Executive shall have the right to
revoke any such designation and to redesignate a beneficiary or beneficiaries by written notice to
the Company (and to any applicable insurance company) to such effect.
11.8. No Conflict. The Executive represents and warrants to the Company that this
Agreement is legal, valid and binding upon the Executive and the execution of this Agreement and
the performance of the Executive’s obligations hereunder does not and will not constitute a breach
of, or conflict with the terms or provisions of, any agreement or understanding to which the
Executive is a party (including, without limitation, any other employment agreement). The Company
represents and warrants to the Executive that this Agreement is legal, valid and binding upon the
Company, and the Company is not a party to any
24
agreement or understanding which would prevent the fulfillment by the Company of the terms of
this Agreement.
11.9. Withholding. All payments required to be paid by the Company to Executive under
this Agreement will be paid in accordance with the payroll practices of the Company and/or the
terms of the Company’s benefit, savings, pension, insurance and incentive plans and programs, as
the case may be, and will be subject to withholding taxes, social security and other payroll
deductions as required by law and/or in accordance with the Company’s policies applicable to
members of the Executive Group and the terms of such plans and programs.
11.10. Use of Likeness. The Company and its Affiliates shall have the right to use
Executive’s name, biography and likeness in connection with their respective businesses, but not
for use as a direct endorsement.
11.11. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect.
11.12. Counterparts. This Agreement may be executed in one 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.
11.13. Changes. The Company and its Affiliates are entitled to amend, modify,
terminate or otherwise change at any time or from time to time any and all benefit plans, incentive
plans and policies, practices or procedures referred to in this Agreement.
11.14. Resolution of Disputes. Except as provided for in Section 8.2 above, the
Company and the Executive agree that any claim, dispute, controversy or the like
25
(collectively, the “Dispute”) arising out of or relating to this Agreement (including the
Exhibits annexed hereto), including, without limitation, its validity or a breach thereof, shall be
resolved by binding arbitration in accordance with the rules of the Commercial Tribunal of the
American Arbitration Association. The Company and the Executive further agree that any Dispute
relating to, arising in the context of, or being asserted for the first time after, termination of
the term of employment including but not limited to any alleged violation of any local, state or
federal anti-discrimination statute or ordinance, or any Dispute that Executive was subjected to
discriminatory harassment in violation of any local, state or federal anti-discrimination statute,
shall also be resolved by binding arbitration in accordance with the rules of the Commercial
Tribunal of the American Arbitration Association. The Company and the Executive expressly waive
their rights, if any, to a trial of any such Disputes by a jury.
11.14.1. The Company and the Executive agree that (a) any Dispute shall be arbitrated by three
neutral arbitrators who shall issue a written opinion and award, (b) the award may be vacated in
the event of bias, corruption, fraud or where an arbitrator exceeds his/her powers, and (c)
judgment upon the award may be entered in any court having jurisdiction thereof
11.14.2. The Executive may choose to have the arbitration hearing pursuant to this Section
11.14 take place in either Stamford, Connecticut, or New York City, New York. The Company agrees
that if the Executive is the prevailing party in such arbitration, the Company shall pay the
arbitrators’ fees and related AAA administrative costs.
26
'
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| TIME WARNER CABLE, a division of | ||||
| TIME WARNER ENTERTAINMENT COMPANY, L.P. | ||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Title: | ||||
Agreed to and accepted as of
the date first above written
the date first above written
EXECUTIVE
/s/ Xxxx XxXxxx |
||
Vice President, Corporate Development
Annual
Salary: $202,800.00
Target
Annual Bonus Percentage: 40%
Address for Notices:
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
27
Exhibit A
CONFIDENTIAL
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (this “Agreement”), effective as of the date set forth
in Paragraph 30 below, is made and entered into by and between Time Warner Cable (the “Company”), a
division of Time Warner Entertainment Company, L.P., and (the
“Executive”). The Company and Executive are from time to time referred to herein as the “parties.”
By this Agreement, the parties intend to, and do hereby settle any and all differences, disputes,
grievances, claims, charges and complaints, whether known or unknown, accrued or unaccrued, actual
or alleged that Executive either has or arguably may have against the Company, its affiliates
including, but not limited to, Time Warner Inc., and each of their respective subsidiaries or
predecessors or successors thereto (hereinafter respectively “Affiliates” and “Subsidiaries”) or
that the Company, its Affiliates or Subsidiaries either have or arguably may have against
Executive, as discussed herein.
In consideration of the mutual covenants, conditions and obligations set forth herein, the
parties agree as follows:
[1. Pursuant to Section 4.2.1 of the Amended and Restated Employment and Termination
Agreement, dated as of June 1, 2000, between the Company and Executive (“the Employment
Agreement”), Executive shall receive a one-time lump sum payment equal to $ .]
[1. Pursuant to Section 4.2.2 of the Amended and Restated Employment and Termination
Agreement, dated as of June 1, 2000, between the Company and Executive (the “Employment
Agreement”), Executive shall be place on a leave of absence (the “Leave”) as an
inactive Executive of the Company for thirty months following the date of termination of the
term of employment, whether or not he/she becomes disabled as provided for in Section 5 of the
Employment Agreement. During the Leave, Executive shall receive his/her regular annual earnings of
$ less statutory deductions and other voluntary deductions (i.e., group insurance) paid
biweekly through . Executive shall also receive an Annual Incentive Plan bonus (AIP)
payment of $ each year, less statutory deductions, for three years, payable in [month] of
, and . [The Executive shall also receive a prorated payment of $
to be paid in February of .] If the Executive accepts full-time employment with any other
person or Entity during such Leave or notifies the Company in writing of his/her intention to
terminate his/her status as an inactive employee on Leave, then the Executive will be terminated
from payroll and will receive a lump sum payment in an amount representing the balance of the
annual salary and bonuses payable during the thirty month period pursuant to Section 4.2.2 of the
Employment Agreement. (Notwithstanding the preceding sentence, if the Executive accepts full-time
employment with any Affiliate of the Company (for this purpose only, as “Affiliate” is defined in
the Employment Agreement), then the periodic annual salary and bonus payments provided for in
Section 4.2.2 of the Employment Agreement shall cease, and the Executive shall not be entitled to
any such lump sum payment.) If the Executive leaves payroll within one year after separation from
the Company, any lump-sum payment will be paid in two installments. At the time the Executive
leaves payroll, 75% will be paid; the remaining 25% will be paid on the first anniversary date of
the notice of termination. By signing this agreement Executive acknowledges his obligation to
inform the Company of the date the new position will commence immediately after accepting other
employment.
2
2. The parties agree that Executive’s Time Warner stock options granted under the Time Warner
Stock Option Plan (the “Option Plan”) will continue to vest during the period the Executive remains
on payroll.
3. The parties agree that the Executive’s rights under the Time Warner Cable Long Term Cash
Plan shall be determined by the provisions of the Plan as in effect on the date of this Agreement.
If active employees receive payments for any cycles of this Plan for which the Executive received a
grant, the Executive will be eligible to receive a payment at the end of each cycle. Any such
payments will be prorated based on the date the Executive terminates from payroll. The Executive
received grants under the ___, ___, and ___Long Term Cash Plans.
4. The parties agree that the Executive’s pension rights and rights in the Time Warner Cable
Savings Plan shall be determined by the provisions of the Time Warner Cable Pension Plan and
Savings Plan, respectively, as in effect on the date of this Agreement (collectively, the “Pension
and Savings Plans”). Further, the parties agree that full distribution of the Executive account
balances held in the Time Warner Cable Savings Plan may occur following termination of the
Executive from payroll, upon Executive’s request.
5. The parties agree that the Executive will be provided with coverage under the Company’s
group insurance plans at the employee contribution rate as long as the Executive remains on
payroll. The Executive will be subject to any increases in employee contributions and any changes
in the group insurance benefit package which occur during the salary continuation period. Following
termination of group insurance benefits, the Executive may continue medical, dental, and vision
coverage for up to eighteen (18) months by following the applicable COBRA procedures and paying the
full monthly premium.
3
6. The parties agree that the Executive will be provided with the life insurance benefits and,
if elected, premium reimbursements as specified under his/her Employment Agreement as long as the
Executive remains on payroll.
7. Based on the Company’s payroll records as of and the termination date of
, Executive’s unused vacation balance is hours. Assuming payroll records are
current, this would result in a vacation payout of . The parties agree the vacation balance
will be verified prior to payout.
8. Under the Employment Agreement, the Executive is entitled to executive level outplacement
services (including reasonable office space as designated by the Company) at no cost to the
Executive for the one year period following the date of termination of active employment (insert
date).
9. The parties agree that the Executive will be eligible for reimbursement of financial
counseling expenses during the period he remains on payroll, provided active employees at his level
receive these benefits. Financial counseling expense reimbursement will be limited to the amounts
available to active employees at the Executive’s level.
10. Executive does hereby release and forever discharge the Company and its Affiliates and
Subsidiaries and each of their respective officers, shareholders, subsidiaries, agents, successors,
predecessors, assigns, and employees and their respective agents, heirs, executors, administrators,
estates, beneficiaries and representatives, of and from any and all actions, causes of action,
claims, or demands for general, special or punitive damages, attorneys’ fees, expenses, or other
compensation, that in any way relate to or arise out of Executive’s employment with the Company
and/or its Affiliates and Subsidiaries or the termination of such employment which Executive may
now or hereafter have, under any federal, state or local law,
4
regulation or order (including without limitation, under the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq., as amended, through and including the date of this Agreement), or
otherwise. This release shall not apply to any act of fraud or criminal conduct by the Company, its
Affiliates or Subsidiaries, of which Executive is not aware as of the date of this Agreement, nor
to any act of non-compliance with terms of this Agreement by the Company.
11. The Company, its Affiliates and Subsidiaries, do hereby release and forever discharge
Executive, his/her agents, heirs, executors, administrators, estate, beneficiaries and
representatives, of and from any and all actions, causes of action, claims or demands for general,
special, and punitive damages, attorneys’ fees, expenses, and other compensation, that in any way
relate to or arise out of the Company’s employment of Executive or the termination of such
employment which the Company, its Affiliates or Subsidiaries may now or hereafter have, under any
federal, state, or local law, regulation, or order, as amended, or otherwise, through and including
the date of this Agreement. This release shall not apply to any act of fraud or criminal conduct by
Executive of which the Company, its Affiliates or Subsidiaries are not aware as of the date of this
Agreement, nor to any act of non-compliance with terms of this Agreement by Executive.
12. Executive agrees that this Agreement shall terminate upon his/her death, and thereupon the
Company shall not have any obligations hereunder, except that Executive’s estate or beneficiaries
shall be entitled to all unpaid compensation payable to Executive hereunder and to all other
benefits which may be due to Executive and Executive’s estate or beneficiaries at the time under
the general provisions of any employee benefit plan of the Company in which Executive is then a
participant.
5
13. Executive hereby expressly covenants and agrees that Executive will keep secret all
Confidential Information of the Company, including without limitation, the terms and provisions of
this Agreement, and will not disclose such matters to anyone outside of the Company, except with
the Company’s written consent (except as permitted in Paragraph 20 below and Section 8.1.1 of the
Employment Agreement).
14. Executive hereby grants and assigns to the Company all rights (including, without
limitation, any copyright or patent) to the Work Product and any business opportunities presented
to him/her by reason of his/her employment by the Company. Any work in connection therewith shall
be considered “work made for hire” under the Copyright law of 1976 or any successor thereto, and
the Company shall be the owner of such work as if the Company were the author of such work.
Executive will execute and deliver to the Company any documents or instruments evidencing the
Company’s ownership thereof as reasonably requested by the Company. The provisions of this
Paragraph are in addition to, and not in limitation of, any separate agreement regarding similar
matters executed by the Executive.
15. Executive hereby expressly covenants and agrees that:
(a) Executive shall not for a period of one year following , be or become an officer,
director, partner or Executive of or consultant to or act in any managerial capacity with or own
any equity interest in any person or Entity (an “Affiliated Person”) which is a “Competitive
Business Entity” (as such term is defined on Exhibit A hereto), provided, however,
that ownership of less than one percent of the outstanding equity securities of any Entity listed
on any national securities exchange or traded on the National Association of Securities Dealers
Automated Quotation System shall not be prohibited hereby.
6
(b) Executive will not at any time for a period of one year following solicit
(or assist or encourage the solicitation of) any employee of the Company or any of its Subsidiaries
or Affiliates to work for Executive or for any person or Entity in which Executive owns or expects
to own more than a one percent equity interest or for which Executive serves or expects to serve as
an Affiliated Person.
For the purpose of this Paragraph 15(b), the term “solicit any employee” shall mean
Executive’s contacting, or providing information to others who may be expected to contact, any
employee of the Company or any of its Subsidiaries or Affiliates regarding their employment status,
job satisfaction, interest in seeking employment with Executive or any Affiliated Person or any
related matter, but shall not include general print advertising for personnel or responding to an
unsolicited request for a personal recommendation for or an evaluation of an employee of the
Company or any of its Subsidiaries or Affiliates.
16. Documents; Conduct. (a) Executive certifies that he has returned to the Company
all property of the Company and its Subsidiaries and Affiliates in his possession or control
(whether maintained at his office, home or elsewhere), including, without limitation, all copies of
all management studies, business or strategic plans, budgets, notebooks and other printed, typed or
written materials, documents, diaries, calendars and data of or relating to the Company or its
Subsidiaries or Affiliates or their respective personnel or affairs.
(b) Executive expressly covenants and agrees that Executive will not at any time denigrate,
ridicule or intentionally criticize the Company or any of its Subsidiaries or Affiliates or any of
their respective products, properties, employees, officers or directors, including, without
limitation, by way of news interviews, or the expression of personal views, opinions or judgments
to the news media or in any type of public forum.
7
17. Executive agrees that, if called upon to do so by the Company, he/she shall truthfully
testify in Court or before an administrative agency concerning matters or disputes which arose or
were pending during his/her tenure with the Company. Executive further agrees to make
himself/herself available, upon reasonable notice and at reasonable times, to be interviewed and to
cooperate, at the request of the Company, or its counsel, in connection with any litigation,
proceeding, inquiry or investigation to which the Company is or may become involved. The Company
agrees that if it should call upon Executive to so testify or to be interviewed or cooperate, the
Company shall reimburse Executive for expenses reasonably and necessarily incurred by Executive
for testifying, being interviewed or cooperating, excluding costs and fees of any attorney whom
Executive may wish to retain to represent him/her. Further, in the event Executive is called upon
to testify, be interviewed or cooperate, the Company shall make available to Executive all books.
documents and other discoverable items necessary for him/her to give complete and truthful
testimony.
18. Executive agrees that he/she will not voluntarily assist or encourage other persons to
file complaints or claims of any kind against the Company. To that end, Executive agrees not to
commence, prosecute or participate in (except as required by law) any action or proceeding of any
kind against the Company and agrees not to assist, encourage, or provide support for, directly or
indirectly, to any other person in connection with any action or proceeding of any kind against the
Company, except as required by law.
19. Executive agrees that he/she will not make any disclosure of any of the facts or
circumstances giving rise to any allegations he/she has made regarding the Company or any of its
employee s, regarding any policies or practices of the Company, regarding his/her disagreements
with any employee s of the Company, or regarding any matters that came to
8
his/her attention during the course of his/her employment by the Company. Executive also
agrees that he/she will not solicit or initiate any demand or request by others for any such
disclosure of any such information.
20. Executive agrees that he/she will not disclose the financial terms of this Agreement to
any person, firm, corporation or other entity, except that Executive may disclose the financial
terms to federal or state tax authorities, his/her attorneys, accountants, or family and, subject
to the condition precedent that he deliver to the Company upon request a confidentiality agreement
in customary form, if he/she is applying for credit, to the lenders involved. Notwithstanding the
foregoing, if Executive shall be requested or required in a judicial, administrative or
governmental proceeding to disclose the financial terms of this Agreement (whether by way of oral
questions, interrogatories, requests for information or documents, subpoenas or similar process),
Executive will notify the Company (attention of General Counsel) as promptly as possible of such
request or requirement so that the Company may either seek an appropriate protective order or waive
Executive’s compliance with the provisions of this paragraph. If, in the absence of such protective
order or waiver, Executive is nevertheless, in the written opinion of Executive’s counsel,
otherwise required to disclose the financial terms of this Agreement to any court, government
agency or tribunal or else stand liable for contempt or suffer other censure or penalty, Executive
may disclose such financial terms to such court, governmental agency or tribunal without liability
hereunder.
21. It is expressly understood and agreed that the payment(s) by the Company of the amounts
set forth herein is being given to Executive in return for Executive’s agreements and covenants
contained in this Agreement. Neither payment by the Company of the amounts set
9
forth herein nor any term or condition contained in this Agreement shall be construed by
either party at any time as an admission of liability or wrongdoing in any manner whatsoever.
22. Executive agrees and acknowledges that in executing and delivering this Agreement. (a)
he/she has done so freely and voluntarily; (b) that he/she was advised in this writing to consult
with an attorney of his/her choice; (c) that he/she has had a reasonable opportunity to confer with
legal counsel of his/her own choosing; (d) that he/she executed this Agreement with knowledge of
all the material facts, and not as a result of any duress, concealment, fraud, or undue influence;
(e) that he/she was advised that he/she would have at least [twenty-one or forty-five] days to
consider this Agreement; (f) that it would become fully enforceable unless he/she revoked it in
writing directed to the General Counsel of the Company within seven days of executing it; and (g)
he/she will not receive any of the consideration provided for under this Agreement if he/she does
not execute it or if he/she revokes it within the revocation period.
23. In the event that any provision of this Agreement is found or deemed to be illegal or
otherwise invalid and unenforceable, whether in whole or in part, such invalidity shall not affect
the enforceability of the remaining terms hereunder.
24. This Agreement contains the entire understanding of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous understandings between the
parties hereto with regard to such subject matter (provided that provisions of the Employment
Agreement that do not expressly terminate upon termination of the term of employment thereunder and
which are not in conflict with the terms hereof shall continue to survive and be in effect
regardless of this Agreement). This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York
10
applicable to contracts made and to be performed therein. The terms of the Agreement may not
be modified, except in writing and signed by the party against whom the enforcement of any such
modification may be sought.
25. The parties understand and agree that this Agreement is solely for the purposes set forth
herein, and does not constitute, and is not intended to constitute, a general policy of the Company
in dealing with employee separations.
26. All notices, consents, requests, instructions and other communications provided for herein
shall be validly given, made or served if in writing and delivered personally or sent by registered
or certified mail, postage prepaid to:
Executive at: |
||||
Company at:
|
Time Warner Cable | |||
| Attention: General Counsel | ||||
| 000 Xxxxxx Xxxxx | ||||
| Stamford, Connecticut 06902 | ||||
| Attention: Xxxx Xxxx | ||||
| 000 Xxxxxxxxx Xxxxx Xxxx | ||||
| Englewood, Colorado 80112 |
27. Counterparts. This Agreement may be executed in one 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.
28. Breach by Executive. Executive hereby expressly covenants and agrees that the
Company will suffer irreparable damage in the event any provisions of Paragraphs 13, 14 or 15 are
not performed or are otherwise breached and that the Company shall be entitled as a matter of right
to an injunction or injunctions and other relief to prevent a breach or violation by Executive and
to secure its enforcement of Paragraphs 13, 14 and/or 15. Resort to such equitable
11
relief, however, shall not constitute a waiver of any other rights or remedies which the
Company may have.
29. Resolution of Disputes. Except as provided for in Paragraph 28 above, the Company
and the Executive agree that any claim, dispute, controversy or the like (collectively, the
“Dispute”) arising out of or relating to this Agreement (including the Exhibit annexed hereto),
including, without limitation, its validity or a breach thereof, shall be resolved by binding
arbitration in accordance with the rules of the Commercial Tribunal of the American Arbitration
Association (“AAA”). The Company and Executive expressly waive their rights, if any, to a trial of
any such Disputes by a jury. The Company and Executive agree that (a) any Dispute shall be
arbitrated by three neutral arbitrators who shall issue a written opinion and award, (b) the award
may be vacated in the event of bias, corruption, fraud or where an arbitrator exceeds his/her
powers, and (c) judgment upon the award may be entered in any court having jurisdiction thereof.
Executive may choose to have the arbitration hearing take place in either Stamford, Connecticut, or
New York City, New York. The Company agrees that if the Executive is the prevailing party in such
arbitration, the Company shall pay the arbitrators’ fees and related AAA administrative costs.
30. Unless earlier revoked, this Agreement shall be effective on the eighth day following its
execution by the Executive.
31. Capitalized terms used but not defined herein are used as defined in the Employment
Agreement.
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IN WITNESS HEREOF, the parties hereto have executed this Agreement, effective as of the date
first above written.
| TIME WARNER CABLE, a division of | ||||
| TIME WARNER ENTERTAINMENT COMPANY, L.P. | ||||
| By: | ||||
| Title: | ||||
| EXECUTIVE | ||||
EXECUTIVE NOTARY
STATE OF
|
) | |||||
| ) | ss.: | |||||
COUNTY OF
|
) |
On this day of
, before me personally came ,
to me known and known to me to be the person described herein and who executed the foregoing
Separation Agreement and General Release, and he/she duly acknowledged to me that he/she executed
the same.
| Notary Public | ||
| My Commission Expires: |
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Exhibit B
Time Warner Cable
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: General Counsel
Dear [Xxxx]:
Pursuant to Section 4.11 of my Employment Agreement, this is to advise you of my election of the
Retirement Option provided therein, effective as of the date of this letter.
Pursuant
to Section 4.11.1, I suggest a Transition Period of ___ months, ending on
.
Sincerely yours, |
[Executive]
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Exhibit C
“Competitive Business Entity” shall mean (A) any Entity which is engaged in the United States,
either directly or indirectly, in the ownership, operation or management of (i) any cable
television system, open video system, direct broadcast system (DBS), SMATV system, pay-per-view
system, multi-point distribution system (MDS or MMDS) or other multichannel television programming
system (collectively “Systems”) in the United States; or (ii) any business of providing any local
residential telecommunications, or any internet access or any other transport or network services
for Internet Protocol based information; and (B) any federal, state or local authority empowered to
grant, renew, modify or amend, or review the grant, renewal, modification or amendment of, or the
regulation of, franchises to operate any System. Provided, however, that
“Competitive Business Entity” shall not mean any cable television system operator which, at all
times during the relevant period, has less than 500,000 subscribers and does not serve any area
which is also served by a cable television system owned, operated or managed by the Company or its
Affiliates.
All capitalized terms used herein shall have the meanings provided in the Amended and Restated
Employment Agreement to which this Exhibit C is attached.
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