EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of
October 15, 2002 (the "Employment Agreement"), by and between NTL INCORPORATED
(to be known as NTL Europe, Inc., from and after the Effective Date (as
defined below), hereinafter the "Company"), a Delaware corporation, and ▇▇▇▇▇
▇▇▇▇▇▇ ("Executive").
WHEREAS, on May 8, 2002, NTL Incorporated and certain of its
non-operating subsidiaries each filed a voluntary petition for relief under
Chapter 11 of the United States Bankruptcy Code with the United States
Bankruptcy Court for the Southern District of New York ("Bankruptcy Court")
and remain in possession and control of their respective assets and businesses
as debtors-in-possession;
WHEREAS, the Company and Executive are currently parties to
an Employment Agreement (the "Company Employment Agreement"), dated as of
October 16, 2000; and
WHEREAS, the Company and Executive desire to amend and
restate the Company Employment Agreement in its entirety as provided in this
Employment Agreement and subject to approval by the Bankruptcy Court of the
terms of this Employment Agreement.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Duties; Term.
(a) Position. The Company agrees to employ Executive
pursuant to this Employment Agreement as Chief Operating Officer of the
Company, and Executive agrees to perform such duties, functions and
responsibilities directed by the Chief Executive Officer of the Company that
are generally consistent with such position, for a period of six (6) months
commencing on the "Effective Date" (as such term is defined in the Second
Amended Joint Reorganization Plan Of Incorporated And Certain Subsidiaries
(the "Plan") confirmed by the Bankruptcy Court on September 5, 2002) (the
"Term"), unless the Term is sooner terminated in accordance with Section 3
hereof. The Term may be extended by mutual agreement of the Company and
Executive; provided, that any extension shall be set forth in a written
instrument. Executive's principal office shall be located in Paris for the six
(6) months following the Effective Date and thereafter until the Board of
Directors of the Company (the "Board") changes the locale of its principal
operations.
(b) Resignation from Other Positions. Attached to this
Employment Agreement is a list of all positions (as an director, officer,
employee, consultant or otherwise) Executive holds with the Company and any of
its "Affiliates" (as such term is defined in Rule 12b-2 of the Securities
Exchange Act of 1934, as amended) as of the date hereof. From time to time
during the Term, at the request of the Board, Executive shall resign from any
or all of such positions (excluding, however, (x) any positions Executive
holds pursuant to the Service
Agreement, dated as of July 16, 2002, to which Executive and Iesy Holdings
GmbH (among others) are parties (the "Service Agreement") and (y) Executive's
position under the Employment Agreement, dated as of October 15, 2002, by and
between Cablecom GmbH ("Cablecom") and Executive (the "Cablecom Employment
Agreement")). In addition, upon termination of Executive's employment for any
reason, Executive shall be deemed to have resigned from all positions with the
Company and any of its Affiliates, excluding any positions Executive holds
pursuant to the Service Agreement or pursuant to the Cablecom Employment
Agreement.
Section 2. Compensation.
(a) Salary. During the Term, the Company shall pay to
Executive a salary at an annual rate of Four Hundred Thousand Dollars
($400,000.00), payable in accordance with the Company's standard payroll
policies, and less any amounts required or permitted to be withheld by law
including all applicable foreign, federal, state and local withholding taxes
(the "Base Salary"). If Executive provides services to the Company or any of
its Affiliates during the Term other than as set forth in Section 1 hereof, no
additional compensation shall be paid to Executive for such services, and
compensation for such services (if any) shall be paid to the Company;
provided, however, that nothing in this Employment Agreement shall preclude
Executive from retaining all compensation in any form paid or provided by
Cablecom for his services to Cablecom and its subsidiaries pursuant to the
Cablecom Employment Agreement or otherwise and all payments received pursuant
to the Service Agreement. Executive acknowledges and agrees that he shall have
no right to additional compensation from the Company or any of its
subsidiaries or Affiliates in the event of any clawback or other forfeiture of
compensation payable to him for services prior to the Effective Date in
respect of the Company's investment in eKabel, L.P.
(b) Additional Payment. The Company will pay Executive a
payment (the "Additional Payment") of Four Hundred and Seventy Thousand
Dollars ($470,000.00), less any amounts required or permitted to be withheld
by law including all applicable foreign, federal, state and local withholding
taxes, to be paid in six (6) substantially equal monthly installments, with
the first such installment to be paid within fifteen (15) days following the
Effective Date, and the remaining payments made in successive thirty (30) day
increments commencing from and after the date of the first payment; provided,
however, that Executive shall not be entitled to receive any portion of the
Additional Payment to the extent then unpaid if his employment is terminated
by the Company for Cause during the Term.
(c) Executive Benefits and Prerequisites. During the Term,
to the extent not otherwise provided pursuant to the Cablecom Employment
Agreement, Executive will be entitled to (x) the benefits provided under
Section 3(c) of the Cablecom Employment Agreement and (y) the expatriate
benefits and tax differentiation adjustments set forth on Exhibits A and B of
the Cablecom Employment Agreement. During the Term, the Company agrees to use
its commercially reasonable best efforts to provide Executive with the same
level of benefits he currently receives as of the date of this Employment
Agreement, including but not limited to, group health coverage for Executive
and his dependents and participation in the Company's or an affiliated
company's 401(k) plan, if available, in each case as set forth on Exhibit C of
the Cablecom Employment Agreement. In the event the Company is unable to
provide any such
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benefits, it agrees to provide comparable benefits (or, in the Company's
discretion, the cost to Executive of obtaining such benefits) to Executive
(and his dependents, if applicable), so long as such comparable benefits may
be provided at a commercially reasonable cost to the Company; provided,
further, that Executive will not be required to elect continuation coverage
under group health plans maintained by the Company or its Affiliates in
accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA") in lieu of obtaining comparable group health coverage. Following the
occurrence of any "qualifying event" (as defined under COBRA) with respect to
Executive, Executive and his dependents shall be offered COBRA coverage. In
the case where COBRA is inapplicable or continuation coverage cannot be
provided under the Company's group health care plan, the Company shall take
all necessary steps to insure that Executive (and his dependents) have
comparable health benefits for the period of at least 18 months after he is no
longer on the Company's group health plan as if he were otherwise covered by
COBRA. For purposes of clarification, any payments to Executive under this
Agreement shall include the benefits of the foregoing tax differentiation
adjustments.
(d) Vacation. During the Term, Executive shall be entitled
to ten (10) days of paid vacation.
(e) Payment of Attorney's Fees. Executive shall have the
right to reimbursement, upon proper accounting, of reasonable attorney's fees
not to exceed Twenty Thousand Dollars ($20,000) solely in connection with and
relating to the negotiation and execution of this Employment Agreement.
(f) Business and Entertainment Expenses. The Company shall
pay or reimburse Executive for all reasonable business expenses which
Executive incurs during the Term in performing his duties under this
Employment Agreement in accordance with Company policy as agreed to by the
Chief Executive Officer of the Company.
(g) Payment in Consideration of Abandonment of Claim.
Executive has agreed to abandon and withdraw with prejudice his Proof of Claim
filed on July 12, 2002 and execute a full and complete release of the claims
made therein in form satisfactory to the Company and upon the execution of
such release, or if the Company deems necessary, entry of an order of the
Bankruptcy Court approving such release as a settlement and compromise under
Rule 9019 of the Federal Rules of Bankruptcy Procedure, in consideration
therefor the Company shall pay Executive Two Hundred Thousand Dollars
($200,000) and reasonable attorney's fees and costs not to exceed Fifty
Thousand Dollars ($50,000).
Section 3. Employment Termination.
(a) Termination Other Than For Cause; Termination for Good
Reason; Non-Renewal of Term. The Company may terminate Executive's employment
for any reason at any time, and Executive may terminate Executive's employment
for Good Reason in accordance with this Section 3(a). Upon (x) termination of
Executive's employment by the Company for any reason other than for Cause (as
defined below), (y) termination of Executive's employment by Executive for
Good Reason (as defined below) or (z) termination by the Company or Executive
by reason of expiration of the Term, Executive shall be entitled to the
following payments: (i) a
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lump sum equal to the Base Salary for the remainder of the Term, if any, such
amount to be paid within fifteen (15) days following such termination, and
(ii) any portion of the Additional Payment, to the extent then unpaid, such
amount to be paid within fifteen (15) days following such termination. The
Company's obligations to make the payments set forth in this Section 3(a) are
conditioned upon: (Y) Executive's material compliance with his obligations
under Sections 4 and 5 of this Employment Agreement (and the Company shall
give Executive prompt notice of its knowledge of any such noncompliance); and
(Z) Executive's execution and delivery to the Company of a valid and
enforceable release, in a form substantially similar to the release set forth
in Section 19 hereof (with such changes as the Company determines are
necessary and appropriate to give the release its full force and effect under
the Age Discrimination and Employment Act and other federal, state and local
laws relating to employment and employment discrimination), of any litigation,
arbitration, claim or demand arising out of, in connection with, or relating
to, Executive's employment or termination of employment with the Company or
any of its Affiliates; provided, however, that such release shall not release
(i) any right of Executive to indemnification applicable to periods prior to
the Effective Date and (ii) any rights Executive may have under the Service
Agreement and the Indemnity Agreement, dated as of July 4, 2002, to which
Executive and iesy Holdings GmbH (among others) are parties (such Agreement,
together with the Service Agreement, the "Iesy Agreements") and the Cablecom
Employment Agreement.
For purposes of this Employment Agreement, "Good Reason"
means any of the following:
(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 Employment Agreement (provided, however,
that benefits provided to Executive pursuant to Section 3(c)
of the Cablecom Employment Agreement shall for this purpose
be deemed to have been provided by the Company);
(iv) A requirement that Executive's employment with the
Company is to be based anywhere other than Paris or Zurich
and environs or such other locale of the Company's principal
operations, except for required travel for Company business
to an extent substantially consistent with Executive's prior
business travel obligations while employed by the Company;
provided, however, that Executive shall not be required to
relocate his primary residence between the periods of
September 1 of any given year and July 31 of the next
following year; or
(v) The failure to maintain directors' and officers'
liability insurance on the substantially similar terms
described in Section 18(b) hereof, despite the Company's
reasonable efforts to maintain such coverage or that such
coverage cannot be obtained at a commercially reasonable
cost.
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Executive shall give the Company ten (10) days' notice of
Executive's intention to terminate Executive's employment and claim that Good
Reason has occurred, and such notice shall describe the facts and
circumstances in support of such claim. The Company shall have ten (10) days
thereafter to cure such facts and circumstances if possible.
(b) Termination For Cause; Voluntary Resignation. The
Company may terminate Executive's employment with the Company hereunder in the
event Executive engages in conduct, or fails to take any action, which
constitutes Cause, and Executive may voluntarily terminate his employment
other than for Good Reason at any time upon ten (10) days' notice to the
Company. For purposes of this Employment Agreement, "Cause" shall mean: (i)
Executive (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) 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), or (iii) the willful gross misconduct by Executive with regard to
the Company or any of its Affiliates that is materially injurious to the
Company or any of its Affiliates. No act, or failure to act, by Executive
shall be "willful" unless committed without a reasonable belief that the act
or omission was in the best interest of the Company or one or more of its
Affiliates (as applicable). In the event that Executive's employment with the
Company hereunder is terminated pursuant to this Section 3(b), then Executive
shall be entitled to Base Salary through the date of termination and Executive
shall not be entitled to any other payments; provided, however, that, if such
termination is a voluntary termination by Executive other than for Good
Reason, (A) Executive shall be entitled to any portion of the Additional
Payment, to the extent then unpaid, such amount to be paid within fifteen (15)
days following such termination, and (B) such payment of any portion of the
Additional Payment shall be conditioned upon Executive executing and
delivering the release described in subsection (Z) of the first paragraph of
Section 3(a).
The Company shall give Executive ten (10) days' notice of
the Company's intention to terminate Executive'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. Executive shall
have ten (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 to be no possible
cure. If the Board reasonably concludes that Executive has not cured such
facts or circumstances within such time, Cause shall not be deemed to have
been established unless and until Executive has received a hearing before the
Board (if promptly requested by Executive) and a majority of the Board in
attendance at a meeting of the Board that occurs within ten (10) days of the
date of such hearing (if so requested) reasonably confirms the existence of
Cause and the termination of Executive therefor.
(c) Notwithstanding any provision of this Employment
Agreement to the contrary, if Executive's employment terminates under the
Cablecom Employment Agreement and such termination is as set forth in the left
column of the following table, then Executive's employment shall automatically
terminate hereunder and such termination shall be as set forth in the right
column of the following table:
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-------------------------------------- ----------------------------------
Cablecom Employment Agreement This Employment Agreement
-------------------------------------- ----------------------------------
by Cablecom for Cause by the Company for Cause
-------------------------------------- ----------------------------------
voluntary resignation by Executive voluntary resignation by
other than for Good Reason Executive other than for Good
Reason
-------------------------------------- ----------------------------------
Wrongful Termination Resignation for Good Reason
-------------------------------------- ----------------------------------
Section 4. Confidentiality; Non-Solicitation;
Non-Competition.
(a) At all times during and after the Term, Executive shall
keep secret and retain in strictest confidence, any and all Confidential
Information (as defined below), and shall use such Confidential Information
only in furtherance of the performance by Executive of Executive's duties to
the Company and not for personal or third party benefit or the benefit of any
interest adverse to the Company's interests, except as may be required by law
or court or administrative order (in which event Executive shall so notify the
Company as promptly as practicable). For purposes of this Employment
Agreement, "Confidential Information" shall mean any information or documents
(whether in written or oral form, electronically stored, or otherwise) that
evidence or relate to the Company's or any of its Affiliates' historical,
present or future business, operations, financial condition, results of
operations, funding requirements, strategic initiatives, business plans,
financial statements, regulatory matters, litigation, arbitration,
investigations, inquiries, adversarial proceedings or prospects that,
individually or collectively, are not general public knowledge (information or
documents shall not become "general public knowledge" through a breach by, or
at the direction of, Executive of his obligations under this Section 4(a)) or
information received from others that the Company is obligated to treat as
confidential or proprietary.
(b) During the Term, Executive will not engage in
Competition with the Company. For purposes of this Employment Agreement,
"Competition" by Executive shall mean Executive's (x) engaging in, or
otherwise being employed by or being a director, officer, employee, principal,
agent, stockholder, member, owner or partner of, any other business or
organization which competes directly or indirectly with the Company in its
core businesses, or (y) affiliation or association with any business or
organization that purchases assets of the Company; provided, however, that,
notwithstanding the foregoing, it shall not be a violation of this Section
4(b) for Executive to become the registered or beneficial owner of up to one
percent (1%) of any class of the capital stock of a competing public
corporation registered under the Securities Exchange Act of 1934, as amended.
(c) During the Term, Executive will not solicit for
employment or hire or agree to hire, in any business enterprise or activity
(other than for the sole benefit of the Company or any of its Affiliates), any
person who is or was employed by the Company or any of its Affiliates.
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(d) During the Term, Executive will not solicit, in
competition with the Company or any of its Affiliates in their businesses or
investments, any business, or order for business, from any other business or
organization that Executive knows or should have known is a current or
prospective customer, lender or vendor of, or supplier to, the Company or any
of its Affiliates.
(e) During the Term, Executive agrees that he shall not
either alone or together with any "person" (as such term is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended)
(such person, an "Acquiror") acquire, propose to acquire, seek to acquire,
participate in any auction to acquire or otherwise take any steps to acquire
any assets of the Company or any of its Affiliates without the express
approval of the Board; provided, however, nothing herein shall prohibit
Executive from providing services to and receiving compensation (including
equity compensation) from (i) the Company following the acquisition of a
controlling interest in or ownership of the Company by any Acquiror or (ii) an
Acquiror or any of its Affiliates following the acquisition of assets of the
Company or any of its Affiliates, in each case so long as Executive did not
violate this Section 4(e). Executive agrees that the Company would suffer an
irreparable injury if Executive was to breach the covenant contained in this
paragraph (e), 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.
Section 5. Cooperation.
Following termination of Executive's employment for any
reason, Executive agrees to reasonably cooperate with the Company upon
reasonable request of the Board and to be reasonably available to the Company
with respect to matters arising out of Executive's services to the Company and
its Affiliates. Executive represents and agrees that he will give truthful
testimony in any investigations, proceedings or legal actions relating to such
matters. Executive further represents and agrees that he will not furnish
information to or cooperate with any non-governmental entity (other than the
Company or any of its Affiliates) which is a party to an investigation,
proceeding or legal action involving the Company or any of its Affiliates.
Nothing in this Section 5 shall prohibit Executive from responding to a valid
subpoena or court order provided that Executive has given the Company
sufficient notice of such subpoena or court order to allow the Company an
opportunity to seek a protective order or other relief limiting or barring
such disclosure. The Company shall reimburse Executive for expenses reasonably
incurred in connection with such matters as agreed by Executive and the Board.
Nothing in this Section 5 shall in any way cause Executive to breach any of
his duties or obligations under the Cablecom Employment Agreement or the
Service Agreement.
Section 6. No Third Party Beneficiary.
This Employment Agreement is not intended and shall not be
construed to confer any rights or remedies hereunder upon any Person, other
than the parties hereto or their permitted assigns. For purposes of this
Section 6, "Person" shall mean an individual, corporation,
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partnership, limited liability company, limited liability partnership,
association, trust or other unincorporated organization or entity.
Section 7. Notices.
Unless otherwise provided herein, any notice, exercise of
rights or other communication required or permitted to be given hereunder
shall be in writing and shall be given by overnight delivery service such as
Federal Express or personal delivery against receipt, to the party to whom it
is given at the following address or facsimile number of such party:
If to the Company: NTL Europe, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Executive: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
or such other address number as such party may hereafter specify by notice to
the other party hereto. Any notice or other communication shall be deemed to
have been given as of the date so personally delivered or on the next business
day when sent by overnight delivery service.
Section 8. Representation.
The Company hereby represents and warrants that the
execution and delivery of this Employment Agreement and the performance by the
Company of its obligations hereunder have been duly authorized by all
necessary corporate action of the Company. Executive represents to the Company
that Executive's execution and performance of this Employment Agreement does
not violate any agreement or obligation (whether or not written) that
Executive may have with or to any person or entity including, but not limited
to, any prior employer.
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Section 9. Amendment.
This Employment Agreement may be amended only by a written
agreement signed by the parties hereto.
Section 10. Binding Effect.
This Employment Agreement shall be binding upon and inure to
the benefit of the Company and any successor in interest, assign or successor
organizations which shall succeed to the Company by merger or consolidation or
operation of law, or by acquisition of all or substantially all of the assets
of the Company and the Company shall be obligated to ensure that any such
party undertake in writing to assume the obligations of the Company hereunder.
Section 11. Governing Law.
This Employment Agreement and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflict of laws provisions.
Section 12. Severability.
If any provision of this Employment Agreement, including
those contained in Section 4 hereof, shall for any reason be held invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions hereof shall not be affected or impaired thereby.
Moreover, if any one or more of the provisions of this Employment Agreement,
including those contained in Section 4 hereof, shall be held to be excessively
broad as to duration, activity or subject, such provisions shall be construed
by limiting and reducing them so as to be enforceable to the maximum extent
allowable by applicable law. To the extent permitted by applicable law, each
party hereto waive any provision of law that renders any provision of this
Employment Agreement invalid, illegal or unenforceable in any way.
Section 13. Execution in Counterparts.
This Employment Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
Section 14. Entire Agreement.
This Employment Agreement sets forth the entire agreement,
and supersedes all prior representations, agreements and understandings
(including any prior course of dealings), both written and oral, between the
parties with respect to the subject matter hereof and thereof; provided,
however, that nothing in this Employment Agreement shall affect in any way
Executive's rights and obligations under the Iesy Agreements and the Cablecom
Employment Agreement. Without limiting the generality of the Plan or Section
19 of this Employment Agreement or this Section 14, effective as of the
Effective Date, this Employment Agreement
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fully supersedes and amends and restates the Company Employment Agreement
without any liability of the Company or any of its Affiliates thereunder.
Section 15. Titles and Headings.
Titles and headings to Sections herein are for purposes of
reference only, and shall in no way limit, define or otherwise affect the
meaning or interpretation of any of the provisions of this Employment
Agreement.
Section 16. Consent to Jurisdiction.
The parties hereby irrevocably submit to the jurisdiction of
any Federal court sitting in the City of New York in any action or proceeding
to enforce the provisions of this Employment Agreement, and waives the defense
of inconvenient forum to the maintenance of any such action or proceeding.
Section 17. Approval By Court.
The Company shall undertake to file a motion seeking, and
use its best efforts to promptly obtain, approval of the terms of this
Employment Agreement by the Bankruptcy Court.
Section 18. Indemnification.
(a) To the fullest extent permitted by Delaware law, the
Company shall indemnify Executive against, and save and hold Executive
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 Executive as a result of Executive's service from and after the
Effective Date as an officer, director or employee of, or consultant to, any
member of the Company or any of its Affiliates, or in any capacity at the
request of the 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 Executive's acts of willful
misconduct, misappropriation of funds or fraud). In the event the Company does
not compromise or assume the defense of any indemnifiable claim or action
against Executive, the Company shall, to the extent permitted by applicable
law, promptly pay to Executive all costs and expenses incurred or to be
incurred by Executive 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 Executive was not entitled to indemnity hereunder, then Executive
shall repay forthwith all amounts so advanced. The Company may not agree to
any settlement or compromise of any claim against Executive, other than a
settlement or compromise solely for monetary damages for which the Company
shall be solely responsible, without the prior written consent of Executive,
which consent shall not be unreasonably withheld. This right to
indemnification shall be in
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addition to, and not in lieu of, any other right to indemnification to which
Executive shall be entitled pursuant to the Company's Certificate of
Incorporation or By-laws or otherwise.
(b) Directors' and Officers' Insurance. During the Term, the
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.
Section 19. Release of Claims.
Effective as of the Effective Date, Executive, with the
intent of binding Executive and Executive's heirs, successors and assigns,
hereby releases, remises, acquits and forever discharges the Company and each
of its Affiliates, the divisions, successors, predecessors and assigns
thereof, and the present and former officers, directors, executives, agents,
attorneys and employees thereof (collectively, the "Released Parties"), of and
from any and all claims, actions, causes of action, demands, rights, damages,
debts, sums of money, accounts, financial obligations, suits, expenses,
attorneys' fees and liabilities of whatever kind or nature in law, equity or
otherwise, whether now known or unknown, suspected or unsuspected, which
Executive individually or as a member of a class now has, owns or holds, or
has at any time heretofore had, owned or held, against any Released Party, but
excluding (a) out-of-pocket expenses properly incurred by Executive prior to
the Effective Date under Company policy in effect upon the incurrence thereof,
(b) any right to indemnification applicable to periods prior to the Effective
Date and (c) any rights of Executive under the Iesy Agreements and the
Cablecom Employment Agreement.
Section 20. Assignment.
Notwithstanding any other provision of this Employment
Agreement, Executive may assign his right to receive any payment hereunder to
a company wholly owned by him, and, upon a following any such assignment, the
Company shall make such payments to such company; provided that any assignment
by which the 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 Executive and the
Company.
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IN WITNESS WHEREOF, the undersigned have executed this
Employment Agreement as of the date first written above.
NTL EUROPE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________ __________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
Its: President
______________________________
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Section 1(b)--List of Positions
Chief Operating Officer of NTL Incorporated
Member of the Board of B2 Bredband AB (publ)
Chief Executive Officer of Cablecom GmbH
Chief Executive Officer of Iesy Hessen GmbH & Co. KG
President of NTL Europe SAS
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Side Letter
This Side Letter, dated as of October 15, 2002, is hereby made by and
between NTL Incorporated (to be known as NTL Europe, Inc. from and after the
"Effective Date" (as defined in the Second Amended Joint Reorganization Plan
of NTL Incorporated and Certain Subsidiaries confirmed by the Bankruptcy Court
on September 5, 2002) ("NTL Europe") and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Executive").
WHEREAS, contemporaneously with this Side Letter, the Executive and
NTL Europe are entering in an Employment Agreement, dated as of October 15,
2000 (the "NTL Europe Employment Agreement"); and
WHEREAS, contemporaneously with this Side Letter, the Executive and
Cablecom are entering in a Contract of Employment, dated as of October 15,
2000 (the "Cablecom Employment Agreement"); and
WHEREAS, Section 3(c) of the Cablecom Employment Agreement provides
that the Executive shall receive certain group health coverage as provided
therein and Exhibit C of the Cablecom Employment Agreement (the "Medical
Benefits");
WHEREAS, Section 2(c) of the NTL Europe Employment Agreement provides
(among other things) that, to the extent not otherwise provided pursuant to
the Cablecom Employment Agreement, NTL Europe will provide the Medical
Benefits;
WHEREAS, the parties intend herein to clarify Section 2(c) of the NTL
Europe Employment Agreement with respect to the provision of the Medical
Benefits to the extent such Medical Benefits are not otherwise provided
pursuant to the Cablecom Employment Agreement;
NOW, THEREFORE, in consideration of NTL Europe entering into the NTL Europe
Employment Agreement and Cablecom entering into the Cablecom Employment
Agreement and other good and valid consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. To the extent that Cablecom fails to provide the Medical Benefits
and NTL Europe does not then sponsor a group health plan pursuant to which the
Medical Benefits may be provided, NTL Europe shall reimburse the Executive for
the cost of a stand-alone insurance policy to provide the Medical Benefits.
Such reimbursement shall not exceed $10,000 per month. Any coverage provided
pursuant to such a stand-alone insurance policy shall be deemed to have
satisfied NTL Europe's obligation to provide the Medical Benefits under the
NTL Europe Employment Agreement.
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2. This Side Letter shall constitute an amendment of the NTL Europe
Employment Agreement to the extent set forth herein. Except as otherwise
provided herein, the terms and conditions of the NTL Europe Employment
Agreement shall remain in full force and effect.
3. For purposes of clarification, nothing herein shall be construed
to enlarge or diminish any rights of the Executive or Cablecom under the
Section 3(c) or Exhibit A of the Cablecom Employment Agreement.
4. This Side Letter is in addition to and not in substitution of any
obligations NTL Europe has to the Executive under Section 2(c) of the NTL
Europe Employment Agreement.
IN WITNESS WHEREOF, the parties have entered into this Side Letter effective
as of the date first written above.
NTL EUROPE, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
___________________________________ ___________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
By: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
________________________________
Its: President
_______________________________
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