Contract
Exhibit 10.29
EMPLOYMENT
AGREEMENT made as of February 4, 2008, effective as of February 1, 2008 (the “Effective
Date”), between TIME WARNER CABLE INC. (the “Company”), a Delaware corporation, and XXXXXX XXXXX
(“You”).
You and the Company desire to set forth the terms and conditions of your employment by the
Company and agree as follows:
1. Term of Employment. Your “term of employment” as this phrase is used throughout
this Agreement, shall be for the period beginning on the Effective Date and ending on January 31,
2011 (the “Term Date”), subject, however, to earlier termination as set forth in this Agreement.
2. Employment. During the term of employment, you shall serve as Chief Operating
Officer of the Company and you shall have the authority, functions, duties, powers and
responsibilities normally associated with such position or such authority, functions, duties,
powers and responsibilities as may be assigned to you from time to time by the Company consistent
with your senior position with the Company. During the term of employment, (i) your services shall
be rendered on a substantially full-time, exclusive basis and you will apply on a full-time basis
all of your skill and experience to the performance of your duties, (ii) you shall report to the
Chief Executive Officer of the Company, (iii) you shall have no other employment and, without the
prior written consent of the Chief Executive Officer, no outside business activities which require
the devotion of substantial amounts of your time, and (iv) the place for the performance of your
services shall be the Company’s office in New York, New York or other location as the Company may
determine, subject to such reasonable travel as may be required in the performance of your duties.
The foregoing shall be subject to the Company’s written policies, as in effect from time to time,
regarding vacations, holidays, illness and the like.
3. Compensation.
3.1 Base Salary. The Company shall pay you a base salary at the rate of not less than
$900,000 per annum during the term of employment (“Base Salary”). The Company may increase, but
not decrease, your Base Salary during the term of employment. Base Salary shall be paid in
accordance with the Company’s customary payroll practices.
3.2 Bonus. In addition to Base Salary, the Company typically pays its executives an
annual cash bonus (“Bonus”). Although your Bonus is fully discretionary, your
target annual Bonus as a percentage of Base Salary is 233%, pro rated with respect to partial
years. Each year, the Company’s performance and your personal performance will be considered in
the context of your executive duties and any individual goals set for you, and your actual Bonus
will be determined. Although as a general matter the Company expects to pay bonuses at the target
level in cases of satisfactory individual performance, it does not commit to do so, and your Bonus
may be negatively affected by the exercise of the Company’s discretion or by overall Company
performance. Your Bonus amount, if any, will be paid to you between January 1 and March
15 of the calendar year immediately following the performance year in respect of which such Bonus
is earned.
3.3 Long Term Compensation. In addition to the above compensation, at the Company’s
discretion, you will be eligible to participate in long term compensation plans and programs
available to executives at your level (“Long Term Compensation”), subject to the vesting
requirements, schedules and other terms of such plans and programs. Such Long Term Compensation
may be in the form of equity or cash or a mix of equity and cash, at the Company’s discretion. The
Company shall maintain full discretion to amend, modify or terminate such Long-Term Compensation
plans or programs, and full discretion over the decision to award you Long-Term Compensation.
Subject to the Company’s full discretion, your performance and the Company’s performance, your
Long-Term Compensation awards will have a minimum target value of $3,000,000, in either equity or
cash or a combination of equity and cash.
3.4 Indemnification. You shall be entitled throughout the term of employment (and
after the end of the term of employment, to the extent relating to service during the term of
employment) to the benefit of the indemnification provisions contained on the date hereof in the
Restated Certificate of Incorporation and By-laws of Time Warner Cable Inc. and, as long as Time
Warner Cable Inc. executives are covered under such provisions, the Certificate of Incorporation
and By-laws of Time Warner Inc. (whichever is the greater extent of indemnification) (not including
any amendments or additions after the date hereof that limit or narrow, but including any that add
to or broaden, the protection afforded to you by those
provisions).
4. Termination.
4.1 Termination for Cause. The Company may terminate the term of employment and all
of the Company’s obligations under this Agreement, other than its obligations set forth below in
this Section 4.1, for “cause”. Termination by the Company for
“cause” shall mean termination because of your (a) 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), (b)
willful failure or refusal without proper cause to perform your duties with the Company, including
your obligations under this Agreement (other than any such failure resulting from your incapacity
due to physical or mental impairment), (c) misappropriation, embezzlement or reckless or willful
destruction of Company property, (d) breach of any statutory or common law duty of loyalty to the
Company; (e) intentional and improper conduct materially prejudicial to the business of the Company
or any of its affiliates, or (f) breach of any of the covenants provided for in Section 8 hereof.
Such termination shall be effected by written notice thereof delivered by the Company to you and
shall be effective as of the date of such notice; provided, however, that if (i) such termination
is because of your willful failure or refusal without proper cause to perform any one or more of
your obligations under this Agreement, (ii) such notice is the first such notice of termination for
any reason delivered by the Company to you under this Section 4.1, and (iii) within 15 days
following the date of such notice you shall cease your refusal and shall use your best efforts to
perform such obligations, the termination shall not be effective.
In the event of termination by the Company for cause, without prejudice to any other rights or
remedies that the Company may have at law or in equity, the Company shall have no further
obligation to you other than (i) to pay Base Salary through the effective date of termination, (ii)
to pay any Bonus for any year prior to the year in which such termination occurs that has been
determined but not yet paid as of the date of such termination, and (iii) with respect to any
rights you have pursuant to any insurance or other benefit plans or arrangements of the Company.
You hereby disclaim any right to receive a pro rata portion of any Bonus with respect to the year
in which such termination occurs.
Payments of Base Salary and Bonus required under this Section shall be made at the same time
as such payments would otherwise have been made to you pursuant to Sections 3.1 and 3.2 if you had
not been terminated.
4.2 Termination by You for Material Breach by the Company and Termination by the Company
Without Cause. Unless previously terminated pursuant to any other provision of this Agreement
and unless a Disability Period shall be in effect, you shall have the right, exercisable by written
notice to the Company, to terminate the term of employment effective 30 days after the giving of
such notice, if, at the time of the giving of such notice, the Company is in material breach of its
obligations under this Agreement; provided, however, that, with the exception of clause (i) below,
this Agreement shall not so terminate if such notice is the first such notice of termination
delivered by you pursuant to this Section 4.2 and within such 30-
day period the Company shall have cured all such material breaches. Any such notice of
termination must be provided within 90 days of any material breach of the Agreement. A material
breach by the Company shall include, but not be limited to, (i) the Company violating Section 2
with respect to your authority, duties or place of employment, or (ii) the Company failing to cause
any successor to all or substantially all of the business and assets of the Company expressly to
assume the obligations of the Company under this Agreement.
The Company shall have the right, exercisable by written notice to you, to terminate your
employment under this Agreement without cause, which notice shall specify the effective date of
such termination.
4.2.1 After the effective date of a termination pursuant to this Section 4.2 (a “termination
without cause”), you shall receive Base Salary and a pro rata portion of your Average Annual Bonus
(as defined below) through the effective date of termination. Your Average Annual Bonus shall be
equal to the average of the regular annual bonus amounts (excluding the amount of any special or
spot bonuses) in respect of the two calendar years during the most recent five calendar years for
which the annual bonus received by you from the Company was the greatest; provided, however, if the
Company has previously paid you no annual Bonus, then your Average Annual Bonus shall equal your
target Bonus and if the Company has previously paid you one annual Bonus, then your Average Annual
Bonus shall equal the average of such Bonus and your target Bonus. Your pro rata Average
Annual Bonus pursuant to this Section 4.2.1 shall be paid to you at the times set forth in Section
4.5.
4.2.2 After the effective date of a termination without cause, you shall continue to be
treated as an employee of the Company for a period ending on the date (the “Severance Term Date”)
which is the later of (i) the Term Date and (ii) the date which is twenty-four (24) months after
the effective date of such termination and during such period you shall be entitled to receive,
whether or not you become disabled during such period but subject to Section 6, (a) Base Salary at
an annual rate equal to your Base Salary in effect immediately prior to the notice of termination,
and (b) an annual Bonus in respect of each calendar year or portion thereof (in which case a pro
rata portion of such Bonus will be payable) during such period equal to your
Average Annual Bonus.
Except as provided in the following sentence, if you accept other full-time employment during such
period or notify the Company in writing of your intention to terminate your treatment as an
employee during such period, you shall cease to be treated as an employee of the Company, including
for purposes of your rights to receive certain post-termination benefits under Section 7.2,
effective upon the commencement of such other employment or the effective date of such termination
as specified by you in such notice, whichever is applicable, but you shall continue to receive the
remaining payments you would
have received pursuant to this Section 4.2.2 at the times specified herein. Notwithstanding
the foregoing, if you accept full-time employment with any affiliate of the Company, then the
payments provided for in this Section 4.2.2 shall immediately cease. For purposes of this
Agreement, the term “affiliate” shall mean any entity which, directly or indirectly, controls, is
controlled by, or is under common control with, the Company.
4.3 After the Term Date. If at the Term Date, the term of employment shall not have
been previously terminated pursuant to the provisions of this Agreement, no Disability Period is
then in effect and the parties shall not have agreed to an extension or renewal of this Agreement
or on the terms of a new employment agreement, then the term of employment shall continue on a
month-to-month basis and you shall continue to be employed by the Company pursuant to the terms of
this Agreement. You may terminate the term of employment under this Agreement on 60 days written
notice delivered to the Company (which notice may be delivered by you at any time on or after the
date which is 60 days prior to the Term Date). The Company may terminate the term of employment on
or after the Term Date at any time upon written notice to you. The Company’s written notice of
termination will specify the effective date of such termination. If the Company shall terminate
the term of employment on or after the Term Date for any reason (other than for cause as defined in
Section 4.1, in which case Section 4.1 shall apply), which the Company shall have the right to do
so long as no Disability Date (as defined in Section 5) has occurred prior to the delivery by the
Company of written notice of termination, then such termination shall be deemed for all purposes of
this Agreement to be a “termination without cause” under Section 4.2 and the provisions of Sections
4.2.1 and 4.2.2 shall apply.
4.4 Release. A condition precedent to the Company’s obligation to make the payments
associated with a termination without cause shall be your execution and delivery of a release in
the form attached hereto as Annex A. Such release must be returned no later than 60 days after
your separation from service with the Company. If you fail to execute and deliver such release, or
if you revoke such release as provided therein, then your payments provided for herein shall cease
when the aggregate amount paid under this Agreement equals the aggregate amount to which you would
have been entitled under the Company’s policies relating to notice and severance.
4.5 Payments. Payments of Base Salary and Bonus (including Average Annual Bonus)
required to be made to you after a termination without cause shall be made at the same times as
such payments would have been made pursuant to Sections 3.1 and 3.2 if you had not terminated and
shall be subject to Section 11.
5. Disability.
5.1 Disability Payments. If during the term of employment and prior to the
delivery of any notice of termination without cause, you become physically or mentally disabled,
whether totally or partially, so that you are prevented from performing your usual duties for a
period of six consecutive months, or for shorter periods aggregating six months in any twelve-month
period, the Company shall, nevertheless, continue to pay your full compensation through the last
day of the sixth consecutive month of disability or the date on which the shorter periods of
disability shall have equaled a total of six months in any twelve-month period (such last day or
date being referred to herein as the “Disability Date”). If you have not resumed your usual duties
on or prior to the Disability Date, the Company shall pay you a pro rata Bonus (based on your
Average Annual Bonus) for the year in which the Disability Date occurs and thereafter shall pay you
disability benefits for the period ending on the later of (i) the Term Date or (ii) the date which
is twelve months after the Disability Date (in the case of either (i) or (ii), the “Disability
Period”), in an annual amount equal to 75% of (a) your Base Salary at the time you become disabled
and (b) the Average Annual Bonus. All payments pursuant to this Section 5.1 shall be made at the
times specified in Section 4.5 and shall be subject to Section 11.
5.2 Recovery from Disability. If during the Disability Period you shall fully recover
from your disability, the Company shall have the right (exercisable within 60 days after notice
from you of such recovery), but not the obligation, to restore you to full-time service at full
compensation. If the Company elects to restore you to full-time service, then this Agreement shall
continue in full force and effect in all respects and the Term Date shall not be extended by virtue
of the occurrence of the Disability Period. If the Company elects not to restore you to full-time
service, you shall be entitled to obtain other employment, subject, however, to the following: (i)
you shall perform advisory services during any balance of the Disability Period; and (ii) you shall
comply with the provisions of Sections 8 and 9 during the Disability Period. The advisory services
referred to in clause (i) of the immediately preceding sentence shall consist of rendering advice
concerning strategic matters as requested by the Company, but you shall not be required to devote
more than five days (up to eight hours per day)
each month to such services, which shall be
performed at a time and place mutually convenient to both parties. Any income from such other
employment shall not be applied to reduce the Company’s obligations under this Agreement.
5.3 Other Disability Provisions. The Company shall be entitled to deduct from all
payments to be made to you during the Disability Period pursuant to this Section 5 an amount equal
to all disability payments received by you during the Disability Period from
Worker’s Compensation, Social Security and disability insurance policies maintained by the
Company; provided, however, that for so long as, and to the extent that, proceeds paid to you from
such disability insurance policies are not includible in your income for federal income tax
purposes, the Company’s deduction with respect to such payments shall be equal to the product of
(i) such payments and (ii) a fraction, the numerator of which is one and the denominator of which
is one less the maximum marginal rate of federal income taxes applicable to individuals at the time
of receipt of such payments. All payments made under this Section 5 after the Disability Date are
intended to be disability payments, regardless of the manner in which they are computed. Except as
otherwise provided in this Section 5, the term of employment shall continue during the Disability
Period, and you shall be entitled to all of the rights and benefits provided for in this Agreement,
except that Sections 4.2 and 4.3 shall not apply during the Disability Period. Unless the Company
has restored you to full-time service at full compensation prior to the end of the Disability
Period, the term of employment shall end and you shall cease to be treated as an employee of the
Company at the end of the Disability Period and shall not be entitled to notice and severance or to
receive or be paid for any accrued vacation time or unused sabbatical.
6. Death. If you die during the term of employment, this Agreement and all
obligations of the Company to make any payments hereunder shall terminate except that your estate
(or a designated beneficiary) shall be entitled to receive Base Salary to the last day of the month
in which your death occurs and Bonus compensation (at the time bonuses are normally paid) based on
the Average Annual Bonus, but prorated according to the number of whole or partial months you were
employed by the Company in such calendar year.
7. Other Benefits.
7.1 General Availability. To the extent that (a) you are eligible under the general
provisions thereof (including without limitation, any plan provision providing for participation to
be limited to persons who were employees of the company or certain of its subsidiaries prior to a
specific point in time) and (b) the Company maintains such plan or program for the benefit of its
executives, during the term of employment and so long as you are
an employee of the Company, you
shall be eligible to participate in any savings or similar plan or program and in any group life
insurance, hospitalization, medical, dental, accident, disability or similar plan or program of the
Company now existing or established hereafter.
7.2 Benefits After a Termination or Disability. During the period you continue to be
treated as an employee of the Company after a termination without cause or during the Disability
Period, you shall continue to be eligible to participate in the benefit plans
and to receive the benefits required to be provided to you under this Agreement to the extent
such benefits are maintained in effect by the Company for its executives; provided, however, you
shall not be entitled to any additional awards or grants under any stock option, restricted stock
or other stock based incentive plan. Notwithstanding the foregoing, your continued participation
in the Company’s benefit plans shall be subject to the limitations of applicable law. At the time
you cease to be treated as an employee of the Company, your 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.
7.3 Payments in Lieu of Other Benefits. In the event the term of employment and your
employment with the Company is terminated pursuant to any section of this Agreement, you shall not
be entitled to notice and severance under the Company’s general employee policies or to be paid for
any accrued vacation time or unused sabbatical, the payments provided for in such sections being in
lieu thereof.
8. Protection of Confidential Information; Non-Compete.
8.1 Confidentiality Covenant. You acknowledge that your employment by the Company
will, throughout the term of employment, bring you into close contact with many confidential
affairs of the Company, its affiliates and third parties doing business with the Company, including
information about costs, profits, markets, sales, products, key personnel, pricing policies,
operational methods, technical processes and other business affairs and methods and other
information not readily available to the public, and plans for future development. You further
acknowledge that the services to be performed under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character. You further acknowledge that the business of
the Company and its affiliates is international in scope, that its products and services are
marketed throughout the world, that the Company and its affiliates compete in nearly all of its
business activities with other entities that are or could be located in nearly any part of the
world and that the nature of your services, position and expertise are such that you are capable of
competing with the Company and its affiliates from nearly any location in the world. In
recognition of the foregoing, you covenant and agree:
8.1.1 You shall keep secret all confidential matters of the Company, its affiliates and third
parties and shall not disclose such matters to anyone outside of the Company and its affiliates, or
to anyone inside the Company and its affiliates who does not
have a need to know or use such information, and shall not use such information for personal
benefit or the benefit of a third party, either during or after the term of employment, except with
the Company’s written consent, provided that (i) you shall have no such obligation to the extent
such matters are or become publicly known other than as a result of your breach of your obligations
hereunder and (ii) you may, after 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;
8.1.2 You shall deliver promptly to the Company on termination of your employment, or at any
other time the Company may so request, all memoranda, notes, records, reports and other documents
(and all copies thereof) relating to the Company’s and its affiliates’ businesses, which you
obtained while employed by, or otherwise serving or acting on behalf of, the Company and which you
may then possess or have under your control; and
8.1.3 If the term of employment is terminated pursuant to Section 4, for a period of one year
after such termination, without the prior written consent of the Company, you shall not employ, and
shall not cause any entity of which you are an affiliate to employ, any person who was a full-time
employee of the Company at the date of such termination or within six months prior thereto but such
prohibition shall not apply to your secretary or executive assistant or to any other employee
eligible to receive overtime pay.
8.2 Non-Compete. During the term of employment and through the later of (i) the Term
Date, (ii) the date you leave the payroll of the Company, and (iii) twelve months after the
effective date of any termination of the term of employment pursuant to Section 4, you shall not,
directly or indirectly, without the prior written consent of the Chief Executive Officer of the
Company, render any services to, or act in any capacity for, any Competitive Entity, or acquire any
interest of any type in any Competitive Entity; provided, however, that the foregoing shall not be
deemed to prohibit you from acquiring, (a) solely as an investment and through market purchases,
securities of any Competitive Entity which are registered under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934 and which are publicly traded, so long as you are not part of any
control group of such Competitive Entity and such securities,
including converted securities, do
not constitute more than one percent (1%) of the outstanding voting power of that entity and (b)
securities of any Competitive Entity that are not publicly traded, so long as you are not part of
any control group of such Competitive Entity and such securities, including converted securities,
do not constitute more than three percent (3%) of the outstanding voting power of that entity. For
purposes of the foregoing, the following shall be deemed to be a Competitive Entity: (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 residential or
commercial 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 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.
9. Ownership of Work Product. You acknowledge that during the term of employment, you
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 being collectively referred to herein as “Work Product”), and that various business
opportunities shall be presented to you by reason of your employment by the Company. You
acknowledge that all of the foregoing shall be owned by and belong exclusively to the Company and
that you 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 you for the possible
interest or participation of the Company. You shall (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 necessary to carry out the foregoing; and (iv) give testimony in support of your
inventorship or creation in any appropriate case. You agree that you will not assert any rights to
any Work Product or business opportunity as having been made or acquired by you prior to the date
of this Agreement except for Work Product or business opportunities, if any, disclosed to and
acknowledged by the Company in writing prior to the date hereof.
10. Notices. All notices, requests, consents and other communications required or
permitted to be given under this Agreement shall be effective only if given in writing and shall be
deemed to have been duly given if delivered personally or sent by a nationally recognized overnight
delivery service, or mailed first-class, postage prepaid, by registered or 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, XX 00000
Attention: General Counsel
000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
10.2 If to you, to your residence address set forth on the records of the Company.
11. Compliance with Section 409A. This Agreement is intended to comply with Section
409A of the Internal Revenue Code (the “Code”) and will be interpreted, administered and operated
in a manner consistent with that intent. Notwithstanding anything herein to the contrary, if at
the time of your separation from service with the Company you are a “specified employee” as defined
in Section 409A of the Code (and the regulations thereunder) and any payments or benefits otherwise
payable hereunder as a result of such separation from service are subject to Section 409A of the
Code, then the Company will defer the commencement of the payment of any such payments or benefits
hereunder (without any reduction in such payments or benefits ultimately paid or provided to you)
until the date that is six months following your separation from service with the Company (or the
earliest date as is permitted under Section 409A of the Code), and the Company will pay any such
delayed amounts in a lump sum at such time. If any other payments of money or other benefits due
to you hereunder could cause the application of an accelerated or additional tax under Section 409A
of the Code, such payments or other benefits shall be deferred if deferral will make such payment
or other benefits compliant under Section 409A of the Code, or otherwise such payment or other
benefits shall be restructured, to the extent possible, in a manner, determined by the Company,
that does not cause such an accelerated or additional tax. To the extent any reimbursements or
in-kind benefits due to you under this Agreement constitute “deferred compensation” under Section
409A of the Code, any such reimbursements or in-kind benefits shall be paid to you in a manner
consistent with Treas. Reg. Section 1.409A-3(i)(1)(iv). Each payment made under this Agreement
shall be designated as a “separate payment” within the meaning of Section 409A of the Code.
References to “termination of employment” and similar terms used in this Agreement are intended to
refer to “separation from service” within the meaning of Section 409A of the Code to the extent
necessary to comply with Section 409A of the Code. The Company shall consult with you in good
faith regarding the implementation of the provisions of this Section 11; provided that neither the
Company nor any of its employees or representatives shall have any liability to you with respect to
thereto.
12. General.
12.1 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the substantive laws of the State of Connecticut applicable to agreements made and
to be performed entirely in Connecticut.
12.2 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.
12.3 Entire Agreement. This Agreement, including Annex A, sets forth the entire
agreement and understanding of the parties relating to the subject matter of this Agreement and
supersedes all prior agreements, arrangements and understandings, written or oral, between the
parties.
12.4 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.
12.5 Assignability. This Agreement and your rights and obligations hereunder may not
be assigned by you and except as specifically contemplated in this Agreement, neither you, your
legal representative nor any beneficiary designated by you shall have any right, without the prior
written consent of the Company, to assign, transfer, pledge, hypothecate, anticipate or commute to
any person or entity any payment due in the future pursuant to any provision of this Agreement, and
any attempt to do so shall be void and shall not be recognized by the Company. The Company shall
assign its rights together with its obligations hereunder in connection with any sale, transfer or
other disposition of all or substantially all of the Company’s business and assets, whether by
merger, purchase of stock or assets or otherwise, as the case may be. Upon any such assignment, the
Company shall cause any such successor expressly to assume such obligations, and such rights and
obligations shall inure to and be binding upon any such successor.
12.6 Amendments; Waivers. This Agreement may be amended, modified, superseded,
cancelled, 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, 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.
12.7 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 you commit a material
breach of any of the provisions of Sections 8.1, 8.2, 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.
12.8 Resolution of Disputes. Except as provided in the preceding Section 12.7, any
dispute or controversy arising with respect to this Agreement and your employment hereunder
(whether based on contract or tort or upon any federal, state or local statute, including but not
limited to claims asserted under the Age Discrimination in Employment Act, Title VII of the Civil
Rights Act of 1964, as amended, any state Fair Employment Practices Act and/or the Americans with
Disability Act) shall, at the election of either you or the Company, be submitted to the American
Arbitration Association (“AAA”) for resolution in arbitration in accordance with the rules and
procedures of AAA. Either party shall make such election by delivering written notice thereof to
the other party at any time (but not later than 45 days after such party receives notice of the
commencement of any administrative or regulatory proceeding or the filing of any lawsuit relating
to any such dispute or controversy) and thereupon any such dispute or controversy shall be resolved
only in accordance with the provisions of this Section 12.8. Any such proceedings shall take place
in Stamford, CT before a single arbitrator (rather than a panel of arbitrators), pursuant to any
streamlined or expedited (rather than a comprehensive) arbitration process, before a non-judicial
(rather than a judicial) arbitrator, and in accordance with an arbitration process which, in the
judgment of such arbitrator, shall have the effect of reasonably limiting or reducing the cost of
such arbitration. The resolution of any such dispute or controversy by the arbitrator appointed in
accordance with the procedures of AAA shall be final and binding. Judgment upon the award rendered
by such arbitrator may be entered in any court having jurisdiction thereof, and the parties consent
to the jurisdiction of the Connecticut courts for this purpose. If at the time any dispute or
controversy arises with respect to this Agreement, AAA is not in business or is no longer providing
arbitration services, then JAMS/ENDISPUTE shall be substituted for the AAA for the purposes of the
foregoing provisions of this Section 12.8. If you shall be the prevailing party in such
arbitration, the Company shall promptly pay, upon your demand, all legal fees, court costs and
other costs and expenses incurred by you in any legal action seeking to enforce the award in any
court.
12.9 Beneficiaries. Whenever this Agreement provides for any payment to your estate,
such payment may be made instead to such beneficiary or beneficiaries as you may designate by
written notice to the Company. You 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.
12.10 No Conflict. You represent and warrant to the Company that this Agreement is
legal, valid and binding upon you and the execution of this Agreement and the performance of your
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 you are a party (including, without
limitation, any other employment agreement). The Company represents and warrants to you that this
Agreement is legal, valid and binding upon the Company and the execution of this Agreement and the
performance of the Company’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 Company is a
party.
12.11 Withholding Taxes. Payments made to you pursuant to this Agreement shall be
subject to withholding and social security taxes and other ordinary and customary payroll
deductions.
12.12 No Offset. Neither you nor the Company shall have any right to offset any
amounts owed by one party hereunder against amounts owed or claimed to be owed to such party,
whether pursuant to this Agreement or otherwise, and you and the Company shall make all the
payments provided for in this Agreement in a timely manner.
12.13 Severability. If any provision of this Agreement shall be held invalid, the
remainder of this Agreement shall not be affected thereby; provided, however, that the parties
shall negotiate in good faith with respect to equitable modification of the provision or
application thereof held to be invalid. To the extent that it may effectively do so under
applicable law, each party hereby waives any provision of law which renders any provision of this
Agreement invalid, illegal or unenforceable in any respect.
12.14 Survival. Sections 8 through 12 shall survive any termination of the term of
employment by the Company for cause pursuant to Section 4.1. Sections 4.4, 4.5, 4.6 and 7 through
12 shall survive any termination of the term of employment pursuant to Sections 4.2, 5 or 6.
12.15 Definitions. The following terms are defined in this Agreement in the places
indicated:
Affiliate — Section 4.2.2
Average Annual Bonus — Section 4.2.1
Base Salary — Section 3.1
Bonus — Section 3.2
Cause — Section 4.1
Code — Section 11
Company — the first paragraph on page 1
Competitive Entity — Section 8.2
Disability Date — Section 5
Disability Period — Section 5
Effective Date — the first paragraph on page 1
Severance Term Date — Section 4.2.2
Term Date — Section 1
Term of employment — Section 1
Termination without cause — Section 4.2.1
Work Product — Section 9
Average Annual Bonus — Section 4.2.1
Base Salary — Section 3.1
Bonus — Section 3.2
Cause — Section 4.1
Code — Section 11
Company — the first paragraph on page 1
Competitive Entity — Section 8.2
Disability Date — Section 5
Disability Period — Section 5
Effective Date — the first paragraph on page 1
Severance Term Date — Section 4.2.2
Term Date — Section 1
Term of employment — Section 1
Termination without cause — Section 4.2.1
Work Product — Section 9
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| TIME WARNER CABLE INC. |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Agreed to: |
||||
| /s/ Xxxxxx Xxxxx | ||||
| XXXXXX XXXXX | ||||
ANNEX A
RELEASE
Pursuant to the terms of the Employment Agreement made as of ____________, between TIME
WARNER CABLE INC., a Delaware corporation (the “Company”), located at 000 Xxxxxx Xxxxx, Xxxxxxxx,
XX 00000 and the undersigned (the “Agreement”), and in consideration of the payments made to me and
other benefits to be received by me pursuant thereto, I, _______________, being of lawful age, do hereby release
and forever discharge the Company and any successors, subsidiaries, affiliates, related entities,
predecessors, merged entities and parent entities and their respective officers, directors,
shareholders, employees, benefit plan administrators and trustees, agents, attorneys, insurers,
representatives, affiliates, successors and assigns from any and all actions, causes of action,
claims, or demands for general, special or punitive damages, attorney’s fees, expenses, or other
compensation or damages (collectively, “Claims”), which in any way relate to or arise out of my
employment with the Company or any of its subsidiaries or the termination of such employment, which
I may now or hereafter have under any federal, state or local law, regulation or order, including
without limitation, Claims related to any stock options held by me or granted to me by the Company
that are scheduled to vest subsequent to my termination of employment and Claims under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act and the Employee
Retirement Income Security Act, each as amended through and including the date of this Release;
provided, however, that the execution of this Release shall not prevent the
undersigned from bringing a lawsuit against the Company to enforce its obligations under the
Agreement.
I acknowledge that I have been given at least 21 days from the day I received a copy of this
Release to sign it and that I have been advised to consult an attorney. I understand that I have
the right to revoke my consent to this Release for seven days following my signing. This Release
shall not become effective or enforceable until the expiration of the seven-day period following
the date it is signed by me.
I ALSO ACKNOWLEDGE THAT BY SIGNING THIS RELEASE I MAY BE GIVING UP VALAUBLE LEGAL RIGHTS AND
THAT I HAVE BEEN ADVISED TO CONSULT A LAWYER BEFORE SIGNING. I further state that I have read this
document and the Agreement referred to herein, that I know the contents of both and that I have
executed the same as my own free act.
WITNESS my hand this ______day of _______________, _________.
