EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This Agreement is made as of October 16, 2000 by and between NTL
Incorporated (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive").
1. Duties and Scope of Employment.
(a) Positions; Duties. During the Employment Term (as defined
in Section 2), the Company shall employ Executive as the
Company's Senior Vice President, Chief Operating Officer
- Europe. In such capacity, Executive shall be located in
Paris, France and shall serve as the Chief Operating
Officer of the Company's telephone, cable and internet
businesses and operations in Continental Europe ("NTL
Europe"). Executive shall report directly to the Chief
Executive Officer of the Company. Executive shall also
provide leadership of and assist in business development
activities in respect of NTL Europe, working in that
respect with the Chief Executive Officer of the Company
and its Chief Financial Officer. Executive shall perform
such duties, which shall not be inconsistent with the
above-described position as Chief Operating Officer of
NTL Europe, as are assigned to him from time to time by
the Chief Executive Officer of the Company.
(b) Obligations. During the Employment Term, Executive shall
devote substantially all of his business efforts and time
to the Company. Executive agrees, during the Employment
Term, not to actively engage in any other employment,
occupation or consulting activity for any direct or
indirect remuneration without the prior approval of the
Chief Executive Officer of the Company; provided,
however, that Executive may (i) serve in any capacity
with any professional, community, industry, civic,
educational or charitable organization; (ii) manage his
and his family's personal investments and legal affairs,
and (iii) serve on such boards of directors as are set
forth in a list previously furnished to the Chief
Executive Officer of the Company, so long as such
activities described in (i), (ii) and (iii) do not
materially interfere with the discharge of Executive's
duties (including, but not limited to, any conflict of
interest or confidentiality matters).
2. Employment Term.
(a) The Company agrees to employ Executive and Executive
accepts employment, in accordance with the terms and
conditions set forth in this Agreement, commencing on and
as of the actual commencement date of Executive's
employment hereunder, which shall be on a date between
September and October 15, 2000 (the "Employment
Commencement Date") and expiring on January 2, 2003 (such
period being the "Initial Employment Term"), unless
earlier terminated as hereinafter provided.
(b) The Initial Employment Term shall be extended for
successive 12 month periods (each an "Extended Employment
Term") unless no later than 12 months prior to the end of
the Employment Term or an Extended Employment Term, as
the case may be, either the Company or the Executive
shall give notice under this Agreement that the
Employment Agreement shall terminate at the end of the
Employment Term or the Extended Employment Term.
(c) As used in this Agreement, the phrase "Employment Term"
shall mean the Initial Employment Term or, if applicable,
the Extended Employment Term, and if the Initial
Employment Term or any Extended Employment Term has been
extended for a further 12 month period as provided in
paragraph 2(b), shall mean the period ending on the last
day of that twelve month period.
3. Compensation/Benefits. During the Employment Term, the Company
shall pay and provide Executive the following:
(a) Cash Compensation. As compensation for his services to
the Company, Executive shall receive a base salary ("Base
Salary") and shall be eligible to receive additional
variable compensation. The Executive's annual Base Salary
shall be EURO293,000, and his annual variable
compensation amount shall be targeted at no less than
EURO186,000 with an opportunity to earn up to at least
EURO373,000 in annual variable compensation. During the
Employment Term, the Compensation Committee of the Board
(the "Compensation Committee") shall with the advice of
the Company's Chief Executive Officer review at least
annually Executive's Base Salary and variable
compensation then in effect and shall increase such
amounts as the Compensation Committee may approve. Such
Base Salary and variable compensation shall be payable in
accordance with the Company's normal payroll practices.
(b) Expatriate Benefits. The Executive shall receive and be
entitled to the Company's presently existing expatriate
package of benefits to expatriates and their families
(with such changes from the present version as shall not
result in a detriment to the Executive or his family) who
are employed by the Company for positions overseas,
including but not limited to a housing and an automobile
allowance (in cash in respect of the automobile
allowance, at the Executive's option) of equivalent
amount to the Chief Operating Officer of the Company's
United Kingdom, Northern Ireland and the Republic of
Ireland operations, tax differentiation adjustments as
provided in Exhibit B, assuming a Florida, U.S.
residency, tuition reimbursement for the pre-college
education of the Executive's children and legal fees to
immigration counsel for the minor legal work required to
maintain the Executive's and his eldest son's now current
residency status in the U.S. In the even this Agreement
is terminated other than for Cause, the Company will pay
for Executive's (and his family's) costs of relocation
back to a location of Executive's choice provided that
the cost of such relocation shall not be in excess of
that of relocating back to the U.S. Notwithstanding any
other Company document to the contrary (i) any
post-employment Company payments to the Executive shall
include the benefits of the foregoing tax differentiation
adjustment and (ii) in addition to the foregoing benefits
the Company will pay for a furnished apartment for
Executive and his family commencing in the last week of
August 2000 until the Employment Commencement Date, at
which time the foregoing benefits shall apply.
(c) Equity Compensation.
(i) Initial Grants. The Compensation Committee of the
Board, which administers the Company's current
Stock Option Plan (the "Plan"), has awarded
Executive, as of the Employment Commencement Date,
a non-qualified stock option (the "Initial Stock
Option") under the Company's Plan to purchase a
total of 375,000 shares of Company's common stock
(the "Common Stock"), with a per share exercise
price (the "Exercise Price") equal to 100% of the
lower of the fair market value of the Company's
Common Stock as of either (i) the date of this
Agreement or (ii) the Employment Commencement Date
(which shall be the issuance date of the Initial
Stock Option). The Initial Stock Option is for a
term of 10 years and shall vest 20% on the date of
its issuance and an additional 20% on each January
1 thereafter, until fully vested. The other terms
and conditions of the Initial Stock Option are set
forth in the standard form of option agreement
that is attached to this Agreement as Exhibit A,
except to the extent that any provision of this
Agreement shall specifically modify such standard
form of agreement, in which case this Agreement
shall be controlling.
(ii) Initial Stock Option Guarantee. At any time in the
period between October 2, 2002 and January 2,
2003, Executive (or a permitted assignee of the
benefit of the option agreement) may notify the
Company of an election to surrender 300,000 of the
initial grant option for a cash payment of
$9,000,000. Payment of this amount may be deferred
by Executive for up to 12 months from the date of
the notice. Such surrender shall be permitted
whether or not an option is then vested, except in
an instance where an option is no longer
exercisable or has not vested as a result of
Executive's termination under this Agreement for
Cause (as defined below). Payment of such amount
shall be made by the Company within seven business
days following (i) receipt of the notice, or (ii)
if payment is deferred, the expiration of the
deferral period.
(iii) Further Grants. During each of the years of the
Initial Employment Term and the Extended
Employment Term, Executive will be granted an
additional stock option to purchase 50,000 shares
of the Company's Common Stock under the Company's
then existing stock option plan with a per share
exercise price equal to 100% of the fair market
value of the Company's Common Stock on the date of
the grant and on such other terms that are
described in subparagraph (i) of this paragraph 3
or are set forth in Exhibit A.
(d) Employee Benefits. Executive shall, to the extent
eligible, be entitled to participate at a level
commensurate with his position in all employee benefit
welfare and retirement plans and programs, provided by
the Company to its senior executives in accordance with
the terms as in effect from time to time.
(e) Business and Entertainment Expenses. Upon submission of
appropriate documentation in accordance with its policies
in effect from time to time, the Company shall pay or
reimburse Executive for all business expenses which
Executive incurs in performing his duties under this
Agreement, including, but not limited to, travel,
entertainment, professional dues and subscriptions, and
all dues, fees, and expenses associated with membership
in various professional, business, and civic associations
and societies in which Executive participates in
accordance with the Company's policies in effect from
time to time.
(f) Vacation. Executive shall be entitled to vacation time in
accordance with the standard written policies of the
Company with regard to senior executives, but in no event
less than four weeks of vacation per calendar year.
(g) Relocation. Executive shall be entitled to relocation
benefits pursuant to the Company's relocation benefit
program applicable to expatriates. For avoidance of
doubt, such relocation benefits to Executive shall
include (but not be limited to) all direct moving
expenses to Paris, France (the situs of Executive's
employment) and indirect expenses such as the cost of
termination of U.S. school agreements, Paris school
application fees, lost deposits in the U.S. and fees of a
corporate relocator.
4. Termination of Employment
(a) Death or Disability. The Company may terminate
Executive's employment for disability in the event
Executive has been unable to perform his material duties
under this Agreement for six (6) consecutive months
because of physical or mental incapacity by giving
Executive notice of such termination while such
continuing incapacity continues (a "Disability
Termination"). Executive's employment shall automatically
terminate on Executive's death. In the event Executive's
employment with the Company terminates during the
Employment Term by reason of Executive's death or a
Disability Termination, then upon the date of such
termination (i) the Company shall promptly pay and
provide Executive (or in the event of Executive's death,
Executive's estate) (A) any unpaid Base Salary through
the Employment Term and any accrued vacation through the
date of termination, (B) any unpaid variable compensation
at the base level through the Employment Term, with
respect to the fiscal year ending on or preceding the
date of termination, (C) reimbursement for any
unreimbursed expenses incurred through the date of
termination ((A), (B) and (C) being "Accrued Benefits")
and (D) all other payments, benefits or fringe benefits
to which Executive may be entitled though the Employment
Term.
(b) Termination for Cause. The Company may terminate
Executive's employment for Cause. In the event that
Executive's employment with the Company is terminated
during the Employment Term by the Company for Cause,
Executive shall not be entitled to any additional
payments or benefits under this Agreement, other than
Accrued Benefits and such rights as shall appear in the
stock option agreements related to the Initial Grants and
the Further Grants. For the purposes of this Agreement,
"Cause" shall mean (i) the willful failure by Executive
to substantially perform his duties with the Company
(other than any such failure resulting from his
incapacity due to physical or mental impairment), unless
any such failure is corrected with thirty days following
written notice by the Chief Executive Officer of the
Company that specifically identifies the manner in which
the Chief Executive Officer of the Company believes
Executive has substantially not materially perform his
duties or (ii) the willful gross misconduct by Executive
with regard to the Company that is materially injurious
to the Company. No act, or failure to ac, by Executive
shall be "willful" unless committed without a reasonable
belief that the act or omission was in the best interest
of the Company.
(c) Voluntary Termination. Executive may voluntarily
terminate his employment at any time by written notice to
the Company. In the event that Executive's employment
with the Company is voluntarily terminated during the
Employment Term by Executive, Executive shall not be
entitled to any additional payments or benefits under
this Agreement, other than such rights as shall appear in
the stock option agreements related to the Initial Grants
and the Further Grants.
(d) By Executive for Good Reason. Executive may terminate his
employment for Good Reason upon written notice to the
Company, and in such event, his employment termination
shall be treated as a Wrongful Termination under this
Section 4. Good Reason shall mean:
(i) A material diminution of Executive's positions or
authority;
(ii) The assignment to Executive of any duties
materially inconsistent with Executive's position;
(iii) The failure by the Company to timely make any
payment due hereunder or to comply with any of the
material provisions of this Agreement;
(iv) A requirement that Executive's employment with the
Company is to be based anywhere other than Paris
and environs, except for required travel for
Company business to an extent substantially
consistent with Executive's prior business travel
obligations while employed by the Company; or
(v) The happening of an Acceleration Date as that term
is defined in Paragraph 5 of Exhibit A.
(e) Wrongful Termination. In the event that an Executive's
employment is terminated other than pursuant to
subparagraph (a), (b) or (c) of this paragraph 4 (a
"Wrongful Termination"), then the Executive shall be
entitled to be paid, in a lump sum by the next regular
scheduled payroll payment date, all Base Salary and
variable compensation (at the base rate thereof and
pro-rated for any partial years) that would have been due
under this Agreement had the Wrongful Termination not
occurred for the remainder of the Employment Term. In
computing the payment of Executive's Base Salary and
variable compensation payable to the Executive pursuant
to the preceding sentence, the rate of the Executive's
Base Salary and base variable compensation that is in
existence as of the date of the Wrongful Termination
shall be used. In the event of a Wrongful Termination,
Executive shall also be entitled to (i) the immediate
vesting of all Initial Stock Options and Further Grant
Options (if any) notwithstanding any provision to the
contrary in the option agreements relating thereto and
(ii) a continuation of his then existing employee
benefits referred to in paragraphs 3(b), (d) and (g)
above through the end of the Employment Term.
5. Non-Compete; Non-Solicit
(i) The parties hereto recognize that Executive's
services are special and unique and that the level
of compensation and the provisions of this
Agreement are partly in consideration of and
conditioned upon Executive's not competing with
the Company, and that Executive's covenant not to
compete or solicit as set forth in this Section 5
during and after employment is essential to
protect the business and good will of the Company.
(ii) Executive agrees that during the term of
employment with the Company and for a period of 12
months thereafter (the "Covenant Period"),
Executive shall not render services for any of the
six organizations designated by the Chief
Executive Officer of the Company in a writing
delivered to Executive within 30 days after the
Employment Commencement Date (the "Prohibited
List"). The Prohibited List may be changed by the
Chief Executive Officer of the Company from time
to rime (but there may never be more than six
entities listed) by written notice to Executive,
such notice to be effective only if Executive's
commencement of rendering services for such entity
is 90 or more days after the giving of such
notice.
(iii) During the Covenant Period, Executive shall not,
directly or indirectly, disrupt, damage or
interfere with the operation or business of the
Company by soliciting or recruiting its employees
for Executive or other, but the foregoing shall
not prevent Executive from giving references.
(iv) During the Covenant Period, Executive shall not,
without prior written authorization from the
Company, violate the agreement entered into
pursuant to paragraph 9 hereof.
(v) Executive agrees that the Company would suffer an
irreparable injury if Executive was to breach the
covenants contained in this paragraph 5, and that
the Company would by reason of such breach or
threatened breach be entitled to seek injunctive
relief in a court of appropriate jurisdiction, as
well as such other remedies as may then be
appropriate.
(vi) If any of the restrictions contained in this
paragraph 5 shall be deemed to be unenforceable by
reason of the extent, duration or geographical
scope or other provisions thereof, then the
parties contemplate that the court shall reduce
such extent, duration, geographical scope or other
provision hereof and enforce this paragraph 5 in
its reduced form for all purposes in the manner
contemplated hereby.
(vii) Notwithstanding the foregoing, the provisions of
paragraphs 5(ii) and 5(iii) shall not apply if
there is a Wrongful Termination of the Executive's
employment, if the Executive's employment is
terminated as a result of a notice from the
Company under paragraph 2(b), or if the Executive
terminates his employment for Good Reason.
6. Assignment. This Agreement shall be binding upon and inure to the
benefit of (a) the heirs, beneficiaries, executors and legal
representatives of Executive upon Executive's death and (b) any
successor of the Company, provided that any successor shall within
10 days of such assumption deliver to Executive a written
assumption in a form reasonably acceptable to Executive. Any such
successor of the Company shall be deemed substituted for the
Company under the terms of this Agreement for all purposes, except
that the Company shall not be relieved of any liability to the
Executive under this Agreement. As used in this Agreement,
"successor" shall mean any person, firm, corporation or other
business entity which at any time, whether by purchase, merger or
otherwise, directly or indirectly acquires all or substantially
all of the assets or business of the Company. Notwithstanding such
assignment, the Company shall remain, with such successor, jointly
and severally liable for all of its obligations under this
Agreement. This Agreement may not otherwise be assigned by the
Company. None of the rights of Executive to receive any form of
compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary
disposition or by the laws of descent and distribution upon the
death of Executive. Any attempted assignment, transfer, conveyance
or other disposition (other than as aforesaid) of any interest in
the rights of Executive to receive any form of compensation
hereunder shall be null and void; provided, however, that
notwithstanding the foregoing, Executive shall be allowed to
transfer vested shares subject to the stock option to family
members to the extent permitted under the Company's stock option
plans applicable to the Initial Grant and the Further Grants.
7. Notices. All notices, requests, demands and other communications
called for under this Agreement shall be in writing and shall be
deemed given if (i) delivered personally or by facsimile, (ii) one
day after being sent by Federal Express or a similar commercial
overnight service, or (iii) four days after being mailed by
registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors in interest at
the following addresses, or at such other addresses as the parties
may designate by written notice in the manner aforesaid:
If to the Company: NTL Incorporated
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Attn: General Counsel
If to Executive: ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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8. Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in
full force and effect without said provision.
9. Proprietary Information. Concurrently with the execution of this
Agreement, Executive shall enter into a confidentiality and
proprietary information agreement with the Company as provided in
Exhibit C ("Confidentiality Agreement"), provided, however, that
the foregoing shall not preclude Executive from complying with due
legal process or from removing Company property from the Company's
premises in furtherance of his duties and obligations as provided
hereunder.
10. Entire Agreement. This Agreement represents the entire agreement
and understanding between the Company and Executive concerning
Executive's employment relationship with the Company, and
supersedes and replaces any and all prior agreements and
understandings concerning Executive's employment relationship with
the Company entered into prior to the date hereof but not any
written agreements entered into simultaneous with this Agreement
or thereafter.
11. Governing Law; Jurisdiction. This Agreement shall be governed by
the substantive laws of the State of New York applicable to
contracts and agreements made and to be performed in New York. The
Executive and the Company expressly consent to the personal
jurisdiction of the state and federal courts located in New York
for any action or proceeding arising from or relating to this
Agreement.
12. No Oral Modification, Cancellation or Discharge. This Agreement
may only be amended, cancelled or discharged in writing signed by
the Executive and a duly authorized officer of the Company.
13. Arbitration. The parties agree that any and all disputes that they
have with one another which arise out of the Executive's
employment with the Company or under the terms of this Agreement
(or any other agreement between the parties) shall be resolved
through final and binding arbitration, as specified herein. The
only claims not covered by this Section 13 are (i) claims for
benefits under the workers' compensation laws or claims for
unemployment insurance benefits, which will be resolved pursuant
to those laws, and (ii) the Company's claims for the Executive's
alleged breach of any of the provisions of Section 5 of this
Agreement or of the agreement entered into by Executive pursuant
to Section 9. Binding arbitration will be conducted in New York,
New York in accordance with the rules of the American Arbitration
Association. Each party will bear one half of the cost of the
arbitration filing and hearing fees, and the cost of the
arbitrator. The substantially prevailing party in any such
arbitration shall be entitled to receive such party's attorneys'
fees and arbitration expenses from the other party. The parties
acknowledge and agree that arbitration pursuant to this Section 13
shall be final and binding to the fullest extent permitted by law
and enforceable by any court of competent jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement.
NTL INCORPORATED
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇,
Chief Executive Officer.
EXECUTIVE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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