Time Warner Cable Inc. Restricted Stock Units Agreement For Non-Employee Directors General Terms and Conditions
EXHIBIT
10.55
(For Use After January 1, 2010)
General Terms and Conditions
WHEREAS, the Company has adopted the Plan (as defined below), the terms of which are hereby
incorporated by reference and made a part of this Agreement; and
WHEREAS, the Committee has determined that it would be in the best interests of the Company
and its stockholders to grant the restricted stock units (the
“RSUs”) provided for herein to the
Participant pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties
agree as follows:
1. Definitions. Whenever the following terms are used in this Agreement, they shall have the
meanings set forth below. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
(a)
“Cause” means (i) the Participant’s continued failure substantially to perform such
Participant’s duties (other than as a result of total or partial incapacity due to physical or
mental illness) for a period of ten (10) days following written notice by the Company to the
Participant of such failure, (ii) dishonesty in the performance of the Participant’s duties, (iii)
the Participant’s conviction of, or plea of nolo contendere to, a crime constituting (A) a felony
under the laws of the United States or any state thereof or (B) a misdemeanor involving moral
turpitude, in either case which is injurious to the financial condition or business reputation of
the Company or any of its Affiliates, (iv) the Participant’s willful malfeasance or willful
misconduct in connection with the Participant’s duties or any act or omission which is injurious to
the financial condition or business reputation of the Company or any of its Affiliates, or (v) the
Participant’s breach of any non-competition, non-solicitation or confidentiality provisions to
which the Participant is subject. The determination of the Board as to the existence of “Cause”
will be conclusive on the Participant and the Company.
(b)
“Disability” of the Participant shall have the meaning ascribed to such term in the
Company’s long-term disability plan or policy (whether or not the Participant is a participant in
such plan or policy), as in effect from time to time, to the extent that such definition also
constitutes such Participant being considered “disabled” under Section 409A(a)(2)(C) of the Code.
(c)
“Notice” means the Notice of Grant of Restricted Stock Units, which has been provided to
the Participant separately and which accompanies and forms a part of this Agreement.
(d)
“Participant” means a non-employee member of the Board to whom RSUs as set forth in the
Notice have been awarded pursuant to the Plan and shall have the same meaning as may be assigned to
the terms “Holder” or “Participant” in the Plan.
(e)
“Plan” means the Time Warner Cable Inc. 2006 Stock Incentive Plan, as such plan may be
amended, supplemented or modified from time to time.
2. Grant
of Restricted Stock Units. The Company hereby grants to the Participant (the
“Award”), on the terms and conditions hereinafter set forth, the number of RSUs set forth on the
Notice. Each RSU represents the unfunded, unsecured right of the Participant to receive one Share
on the date(s) specified herein or in the Notice. RSUs do not constitute issued and outstanding
Shares for any corporate purposes and do not confer on the Participant any right to vote on matters
that are submitted to a vote of holders of Shares.
3. Dividend
Equivalents and Retained Distributions. If on any date while RSUs are outstanding
hereunder the Company shall pay any regular cash dividend on the Shares, the Participant shall be
paid, for each RSU held by the Participant on the record date, an amount of cash equal to the
dividend paid on a Share (the “Dividend Equivalents”) at the time that such dividends are paid to
holders of Shares. If on any date while RSUs are outstanding hereunder the Company shall pay any
dividend other than a regular cash dividend or make any other distribution on the Shares, the
Participant shall be credited with a bookkeeping entry equivalent to such dividend or distribution
for each RSU held by the Participant on the record date for such dividend or distribution, but the
Company shall retain custody of all such dividends and distributions
(the “Retained
Distributions”); provided, however, that if the Retained Distribution relates to a dividend paid in
Shares, the Participant shall receive an additional amount of RSUs equal to the product of (i) the
aggregate number of RSUs held by the Participant pursuant to this Agreement through the related
dividend record date, multiplied by (ii) the number of Shares (including any fraction thereof)
payable as a dividend on a Share. Retained Distributions will not bear interest and will be subject
to the same restrictions and payment timing as the RSUs to which they relate.
4. Delivery
of Shares.
(a) Subject to the terms and provisions of the Plan and this Agreement, except as provided
below, the Company shall issue or transfer to the Participant, within sixty (60) days following the
Distribution Date as stated in the Notice, of the number of Shares as set forth on the Notice and
the related Retained Distributions, if any, covered by that portion of the Award. Except as
otherwise provided in paragraphs 6 and 7, the issuance or transfer of such Shares and any related
Retained Distributions shall occur only if the Participant’s continued service from the Date of
Grant as a non-employee member of the Board has not been terminated for Cause. If the Participant’s
continued service from the Date of Grant as a non-employee member of the Board is terminated for
Cause, then all outstanding RSUs shall be completely forfeited.
(b) RSUs Extinguished. Upon the issuance or transfer of Shares in accordance with this
Agreement, the RSUs shall be extinguished and such RSUs will not be considered to be held by the
Participant for any purpose.
(c) Fractional Shares. Upon the final issuance or transfer of Shares and Retained
Distributions, if any, to the Participant pursuant to this Agreement, in lieu of a fractional
Share, the Participant shall receive a cash payment equal to the Fair Market Value of such
fractional Share.
5. Termination
of Service Due to Death or Disability. If the Participant’s service as a
non-employee member of the Board terminates as a result of his or her death or Disability, then to
the extent the RSUs were not extinguished prior to such termination of service, the
Shares subject to the RSUs shall be issued or transferred to the Participant as soon as
practicable following such termination of service.
6.
Acceleration of Distribution Date. Subject to paragraph 7 and the terms of any agreement
entered into by the Participant and the Company that provides for treatment of RSUs that is more
favorable to the Participant than the terms of this paragraph 6, in the event of a Change in
Control that also constitutes a change in ownership or effective control of the Company, or in the
ownership of a substantial portion of the assets of the Company, within the meaning of Section
409A(a)(2)(A)(v) of the Code (a “409A Change in Control Event”), to the extent the Award has not
been previously canceled or forfeited, Shares subject to the RSUs shall be issued or transferred to
the Participant, as soon as practicable following such Change in Control,
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along with any related Retained Distributions. To the extent that a Change in Control does not
constitute a 409A Change in Control Event, the issuance of Shares and any related Retained
Distributions shall be made at the times otherwise provided hereunder as if no Change in Control
had occurred.
7. Limitation on Acceleration. Notwithstanding any provision to the contrary in the Plan or
this Agreement, if the Payment (as defined in §7(c) below) due to the Participant hereunder as a
result of the acceleration of issuance or transfer of the Shares subject to the RSUs pursuant to
paragraph 6 of this Agreement, either alone or together with all other Payments received or to be
received by the Participant from the Company or any of its Affiliates
(collectively, the “Aggregate
Payments”), or any portion thereof, would be subject to the excise tax imposed by Section 4999 of
the Code (or any successor thereto), the following provisions shall apply:
(a) If the net amount that would be retained by the Participant after all taxes on the
Aggregate Payments are paid would be greater than the net amount that would be retained by the
Participant after all taxes are paid if the Aggregate Payments were limited to the largest amount
that would result in no portion of the Aggregate Payments being subject to such excise tax, the
Participant shall be entitled to receive the Aggregate Payments.
(b) If, however, the net amount that would be retained by the Participant after all taxes were
paid would be greater if the Aggregate Payments were limited to the largest amount that would
result in no portion of the Aggregate Payments being subject to such excise tax, the Aggregate
Payments to which the Participant is entitled shall be reduced to such largest amount.
(c) The
term “Payment” shall mean any transfer of property within the meaning of Section 280G
of the Code.
(d) The determination of whether any reduction of Aggregate Payments is required and whether
to waive the right to any Payments due under this Agreement or any portion thereof shall be made by
the Participant, and such determinations shall be conclusive and binding on the Company and its
Affiliates. To the extent that the Participant elects to waive the right to any Payments due under
this Agreement, such Payments and the RSUs and any related Retained Distributions shall be
forfeited.
(e) The Company shall promptly pay, upon demand by the Participant, but no later than the end
of the year following the year in which incurred, all legal fees, court costs, fees of experts and
other costs and expenses that the Participant incurred in any actual, threatened or contemplated
contest of the Participant’s interpretation of, or determination under, the provisions of this
paragraph 7.
8. Taxes. The Participant shall be solely responsible for payment of any applicable federal,
state, local or self-employment and other related taxes in connection with the issuance or transfer
of Shares subject to the RSUs, or any related Retained Distributions or the payment of any Dividend
Equivalents.
9. Changes in Capitalization and Government and Other Regulations. The Award shall be subject
to all of the terms and provisions as provided in this Agreement and in the
Plan, which are incorporated by reference herein and made a part hereof, including, without
limitation, the provisions of Section 10 of the Plan (generally relating to adjustments to the
number of Shares subject to the Award, upon certain changes in capitalization and certain
reorganizations and other transactions).
10. Forfeiture. A breach of any of the foregoing restrictions or a breach of any of the other
restrictions, terms and conditions of the Plan or this Agreement, with respect to any of the RSUs
or any related Dividend Equivalents and Retained Distributions, except as waived by the Board or
the Committee, will cause a forfeiture of such RSUs and any Dividend Equivalents or Retained
Distributions relating thereto.
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11. Right
of Company to Terminate Service. Nothing contained in the Plan or this Agreement
shall confer on any Participant any right to continue service as a non-employee member of the Board
of the Company or any of its Affiliates, and the Company and any such Affiliate shall have the
right to terminate the service of the Participant at any such time, with or without cause,
notwithstanding the fact that some or all of the RSUs and related Retained Distributions covered by
this Agreement may be forfeited as a result of such termination. The granting of the RSUs under
this Agreement shall not confer on the Participant any right to any future Awards under the Plan or
employment by the Company or any of its Affiliates.
12. Notices. Any notice which either party hereto may be required or permitted to give the
other shall be in writing and may be delivered personally or by mail, postage prepaid, addressed to
Time Warner Cable Inc., at 0000 Xxxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, attention Manager,
Executive Compensation, and to the Participant at his or her address, as it is shown on the records
of the Company or its Affiliate, or in either case to such other address as the Company or the
Participant, as the case may be, by notice to the other may designate in writing from time to time.
13. Interpretation and Amendments. The Board and the Committee (to the extent delegated by the
Board) have plenary authority to interpret this Agreement and the Plan, to prescribe, amend and
rescind rules relating thereto and to make all other determinations in connection with the
administration of the Plan. The Board or the Committee may from time to time modify or amend this
Agreement in accordance with the provisions of the Plan, provided that no such amendment shall
adversely affect the rights of the Participant under this Agreement without his or her consent.
14. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of
the Company and its successors and assigns, and shall be binding upon and inure to the benefit of
the Participant and his or her legatees, distributees and personal representatives.
15. Copy of the Plan. The Participant agrees and acknowledges that he or she has received and
read a copy of the Plan.
16. Governing Law. The Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York without regard to any choice of law rules thereof which might apply
the laws of any other jurisdiction.
17. Waiver of Jury Trial. To the extent not prohibited by applicable law which cannot be
waived, each party hereto hereby waives, and covenants that it will not assert (whether as
plaintiff, defendant or otherwise), any right to trial by jury in any forum in respect of any suit,
action, or other proceeding arising out of or based upon this Agreement.
18. Submission to Jurisdiction; Service of Process. Each of the parties hereto hereby
irrevocably submits to the jurisdiction of the state courts of the State of New York and the
jurisdiction of the United States District Court for the Southern District of New York for the
purposes of any suit, action or other proceeding arising out of or based upon this Agreement. Each
of the parties hereto to the extent permitted by applicable law hereby waives, and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding
brought in such courts, any claim that it is not subject personally to the jurisdiction of the
above-named courts, that its property is exempt or immune from
attachment or execution, that such suit, action or proceeding in the above-referenced courts
is brought in an inconvenient forum, that the venue of such suit, action or proceedings, is
improper or that this Agreement may not be enforced in or by such court. Each of the parties hereto
hereby consents to service of process by mail at its address to which notices are to be given
pursuant to paragraph 12 hereof.
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19. Personal
Data. The Company may hold, collect, use, process and transfer, in electronic or
other form, certain personal information about the Participant for the exclusive purpose of
implementing, administering and managing the Participant’s participation in the Plan. Participant understands
that the following personal information is required for the above named purposes: his/her name,
home address and telephone number, office address (including department and employing entity) and
telephone number, e-mail address, date of birth, citizenship, country of residence at the time of
grant, work location country, system employee ID, employee local ID, employment status (including
international status code), supervisor (if applicable), job code, title, salary, bonus target and
bonuses paid (if applicable), termination date and reason, taxpayer’s identification number, tax
equalization code, US Green Card holder status, contract type (single/dual/multi), any shares of
stock or directorships held in the Company, details of all grants of RSUs (including number of
grants, grant dates, vesting type, vesting dates, and any other information regarding RSUs that
have been granted, canceled, vested, or forfeited) with respect to the Participant, estimated tax
withholding rate, brokerage account number (if applicable), and
brokerage fees (the “Data”).
Participant understands that Data may be collected from the Participant directly or from the
Company. Participant understands that Data may be transferred to third parties assisting the
Company in the implementation, administration and management of the Plan, including the brokers
approved by the Company, the broker selected by the Participant from among such Company-approved
brokers (if applicable), tax consultants and the Company’s
software providers (the “Data
Recipients”). Participant understands that some of these Data Recipients may be located outside the
Participant’s country of residence, and that the Data Recipient’s country may have different data
privacy laws and protections than the Participant’s country of residence. Participant understands
that the Data Recipients will receive, possess, use, retain and transfer the Data, in electronic or
other form, for the purposes of implementing, administering and managing the Participant’s
participation in the Plan, including any requisite transfer of such Data as may be required for the
administration of the Plan and/or the subsequent holding of Shares on the Participant’s behalf by a
broker or other third party with whom the Participant may elect to deposit any Shares acquired
pursuant to the Plan. Participant understands that Data will be held only as long as necessary to
implement, administer and manage the Participant’s participation in the Plan. Participant
understands that Data may also be made available to public authorities as required by law, e.g., to
the U.S. government. Participant understands that the Participant may, at any time, review Data and
may provide updated Data or corrections to the Data by written notice to the Company. Except to the
extent the collection, use, processing or transfer of Data is required by law, Participant may
object to the collection, use, processing or transfer of Data by contacting the Company in writing.
Participant understands that such objection may affect his/her ability to participate in the Plan.
Participant understands that he/she may contact the Company’s Stock Plan Administration to obtain
more information on the consequences of such objection.
20. Compliance
With Code Section 409A. The Agreement is intended to comply with the
requirements of Code section 409A to avoid taxation under Code section 409A(a)(1) and shall at all
times be interpreted, operated and administered in a manner consistent with this intent. References
herein to ceasing to be a member of the Board and similar terms used in this Agreement shall be
deemed to refer to “separation from service” within the meaning of Code section 409A to the extent
necessary to comply with Code section 409A. Notwithstanding any provision of the Agreement to the
contrary, if at the time of a Participant’s separation from service, the Participant is a
“specified employee” as defined in Code section 409A and any Shares or amounts otherwise payable
under this Agreement as a result of such separation from service are subject to Code section 409A,
then no transfer or payment of such Shares or amounts shall be made until the date that is six months following
the Participant’s separation from service (or the earliest date as is permitted under Section 409A
of the Code), and the Company will transfer or pay any Shares or amounts that are delayed under the
foregoing within sixty (60) days of such date. Notwithstanding the forgoing or any other term or
provision of this Agreement or the Plan, neither the Company nor any Affiliate nor any of its or
their officers, directors, employees, agents or other service providers shall have any liability to
any person for any taxes, penalties or interest due on any amounts paid or payable hereunder,
including any taxes, penalties or interest imposed under Code section 409A.
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