EXHIBIT 10.5
CONTRACT OF EMPLOYMENT (THE "AGREEMENT")
between
Cablecom GmbH, ▇▇▇▇▇▇▇▇▇▇▇. ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(hereinafter referred to as the "Employer company")
and
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
(hereinafter referred to as the "Employee")
Definition
The terms "Group" or "Group Company" refers to the Employer company, all
subsidiary companies of the Employer company, all companies directly or
indirectly controlled by the Employer company and all companies controlled by
the Employer company, its parent company or a subsidiary company of the parent
company.
1. Area of employment, function
1.1 The Employee will be "Chief Financial Officer" of the Group. In this
function he is reporting to the board of directors of the Employer
company (the "Board").
1.2 The Employee will be known as a Chief Financial Officer (CFO).
1.3 Place of business: London.
2. Working hours / overtime
If the Employee has to work overtime in order to fulfill his
function, this overtime must be worked. Overtime is not remunerated
and time off is not given in lieu; compensation for any overtime
worked is included in the salary.
3. Payment
3.1 The Employee is entitled to a salary at a rate of USD 200,000 for
each period of six months that the Employee is employed under this
Agreement, payable in equal installments at the end of each month
(the "Base Salary").
3.2 Reasonable business expenses incurred by the Employee in connection
with carrying out his function will be reimbursed on production of
the appropriate supporting documents (as the company may reasonably
require).
4. Commencement, duration and termination of employment relationship
4.1 The employment relationship will start on the effective date (the
"Effective Date") as outlined in the Employment Agreement, dated as
of October 15, 2002, to which the Employee and NTL Incorporated (to
be known as NTL Europe, Inc. ("NTL Europe")) are parties (the "NTL
Europe Agreement").
4.2 The employment relationship is for an indefinite period, provided,
that the employment relationship may be terminated by the Employee or
the Employer company on not less than one months' written notice
(such period being the "Term").
4.3 Upon (x) termination of the Employee's employment by the Employer
company for any reason other than for Cause (as defined below) or (y)
termination of the Employee's employment by the Employee in a
Constructive Termination Without Cause, the Employee shall be
entitled to a lump sum equal to USD 200,000 minus any portion of the
Base Salary that has already been paid to the Employee (but not less
than zero), such amount to be paid within 15 days following such
termination. The Employer company's obligation to make the payment
set forth in this Section 4.3 is conditioned upon the Employee's
execution and delivery to the Employer company of a valid and
enforceable release, in a form substantially similar to the release
set forth in Section 19 of the NTL Europe Agreement (with such
changes as the Employer company determines are necessary and
appropriate to give the release its full force and effect under
applicable law), of any litigation, arbitration, claim or demand
arising out of, in connection with, or relating to, the Employee's
employment or termination of employment with all members of the
Employer group; provided, however, that such release shall not
release (i) any right of the Employee to indemnification applicable
to periods prior to the Effective Date, (ii) any rights the Employee
may have under the Iesy Agreements (as defined in the NTL Europe
Agreement) and (iii) any rights the Employee may have under the NTL
Europe Agreement.
For purposes of this Agreement, a "Constructive Termination Without
Cause" means a termination of the Employee's employment during the
Term by the Employee within 15 days following the occurrence of any
of the following events without the Employee's prior consent: (A)
failure to continue the Employee in the position set forth in Section
1 hereof (excluding a promotion); (B) assignment to the Employee of
duties that are materially inconsistent with the scope of duties and
responsibilities generally associated with the positions set forth in
Section 1 hereof; (C) any materially adverse change in the reporting
structure applicable to the Employee (but not including a change in
the person filling the position to which the Employee reports; (D)
relocation of the Employee's principal office to a location more than
40 miles from London, England, except for required travel for
Employer company business to an extent substantially consistent with
the Employee's prior business travel obligations; (E) any material
breach by the Employer company of any material obligation to the
Employee under this Agreement; or (F) failure to maintain directors'
and officers' liability insurance on the substantially similar terms
described in Section 5.2 of this Agreement or Section
18(b) of the NTL Europe Agreement, despite the Employer company's or
NTL Europe's reasonable efforts to maintain such coverage or that
such coverage cannot be obtained at a commercially reasonable cost.
The Employee shall give the Employer company 10 days' notice of the
Employee's intention to terminate the Employee's employment and claim
that a Constructive Termination Without Cause has occurred, and such
notice shall describe the facts and circumstances in support of such
claim. The Employer company shall have 10 days thereafter to cure
such facts and circumstances if possible.
4.4 Upon termination of the Employee's employment by the Employer company
for "Cause," then the Employee shall be entitled to Base Salary
through the date of termination and the Employee shall not be
entitled to any other payments or benefits. For purposes of this
Agreement, Cause shall mean: (i) the Employee (x) is indicted for,
convicted of, or pleads guilty or nolo contendere to, any felony or
(y) commits any other crime involving fraud, embezzlement or breach
of trust or fiduciary duty; (ii) in carrying out the Employee's
duties, the Employee engages in conduct that constitutes gross
neglect or willful misconduct; or (iii) the Employee's material
breach of any obligation or representation set forth in this
Agreement; provided, however, that Cause shall not be deemed to have
occurred by reason of the Employee's lack of physical or mental
capacity.
The Employer company shall give the Employee 10 days' notice of the
Employer company's intention to terminate the Employee's employment
and claim that facts and circumstances constituting Cause exist, and
such notice shall describe the facts and circumstances in support of
such claim. The Employee shall have 10 days thereafter to cure such
facts and circumstances if possible; provided, however, that this
sentence shall not apply to clause (i) of the definition of Cause,
for which there shall be deemed no possible cure. If the Board
reasonably concludes that the Employee has not cured such facts or
circumstances within such time, Cause shall not be deemed to have
been established unless and until the Employee has received a hearing
before the Board (if promptly requested by the Employee) and a
majority of the Board in attendance at a meeting of the Board that
occurs within 10 days of the date of such hearing (if so requested)
reasonably confirms the existence of Cause and the termination of the
Employee therefor.
4.5 Notwithstanding any provision of this Agreement to the contrary, if
the Employee's employment terminates under the NTL Europe Agreement
and such termination is as set forth in the left column of the
following table, then the Employee's employment shall automatically
terminate hereunder and such termination shall be as set forth in the
right column of the following table:
-------------------------------- ----------------------------------
NTL Europe Agreement This Agreement
-------------------------------- ----------------------------------
by NTL Europe for Cause by the Employer company for Cause
-------------------------------- ----------------------------------
Resignation in a Constructive Resignation in a Constructive
Termination Without Cause Termination Without Cause
-------------------------------- ----------------------------------
5. Indemnification
5.1 To the fullest extent permitted by applicable law, the Employer
company shall indemnify the Employee against, and save and hold the
Employee harmless from, any damages, liabilities, losses, judgments,
penalties, fines, amounts paid or to be paid in settlement, costs and
reasonable expenses (including, but not limited to, attorneys' fees
and expenses), resulting from, arising out of or in connection with
any threatened, pending or completed claim, action, proceeding or
investigation (whether civil or criminal) against or affecting the
Employee as a result of the Employee's service from and after the
Effective Date as an officer, director or employee of, or consultant
to, any member of the Employer company or any of its affiliates, or
in any capacity at the request of the Employer company or any of its
affiliates, or an officer, director or employee thereof, in or with
regard to any other entity, employee benefit plan or enterprise
(other than arising out of the Employee's acts of willful misconduct,
misappropriation of funds or fraud). In the event the Employer
company does not compromise or assume the defense of any
indemnifiable claim or action against the Employee, the Employer
company shall, to the extent permitted by applicable law, promptly
pay to the Employee all costs and expenses incurred or to be incurred
by the Employee in defending or responding to any claim or
investigation in advance of the final disposition thereof; provided,
however, that if it is ultimately determined by a final judgment of a
court of competent jurisdiction (from whose decision no appeals may
be taken, or the time for appeal having lapsed) that the Employee was
not entitled to indemnity hereunder, then the Employee shall repay
forthwith all amounts so advanced. The Employer company may not agree
to any settlement or compromise of any claim against the Employee,
other than a settlement or compromise solely for monetary damages for
which the Employer company shall be solely responsible, without the
prior written consent of the Employee, which consent shall not be
unreasonably withheld. This right to indemnification shall be in
addition to, and not in lieu of, any other right to indemnification
to which the Employee shall be entitled pursuant to the Employer
company's Certificate of Incorporation or By-laws or otherwise.
5.2 During the Term, the Employer company shall use its reasonable
efforts to maintain directors' and officers' liability insurance on
substantially similar terms as in effect prior to the Effective Date,
so long as such insurance may be obtained at a commercially
reasonable cost.
6. Final provisions
6.1 Amendments and additions to this contract are only valid if made in
writing. Employee may assign his right to receive any payment
hereunder to a company wholly owned by him, and, following any such
assignment, the Employer company shall make such payments to such
company; provided that any assignment by which the Employer company
would lose a tax deduction available to it in the absence of such
assignment shall not be permitted. Any such assignment shall be made
pursuant to a written instrument in form satisfactory to the Employee
and Employer company.
6.2 This Agreement shall be governed by the laws of Switzerland.
6.3 The place of jurisdiction for disputes arising from the employment
relationship shall be either the domicile of the defendant or the
place of business for which the Employee performs work.
Place, date: October 15, 2002
Employer company: Cablecom GmbH Employee: ▇▇▇▇ ▇▇▇▇▇
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇
_________________________________ ______________________________________
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
______________________________
Its: Director
____________________________
Cablecom GmbH
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▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
October 15, 2002
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▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇:
Pursuant to Section 4.2 of the Contract of Employment, dated as of October 15,
2002, to which you and Cablecom GmbH (the "Company") are parties (the
"Agreement"), this letter shall constitute notice by the Company of the
termination of your employment, effective as of the six-month anniversary of
the "Effective Date" (as defined in the Agreement) (the "Termination Date").
The Company reserves its right to terminate your employment earlier than the
Termination Date, as may be permitted under the Agreement and applicable law.
Very truly yours,
CABLECOM GMBH
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
_____________________________________
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
__________________________________
Its: Director
_________________________________