Exhibit 10.1
AMENDED & RESTATED
EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
(the "Agreement")
is
made as of December
8, 2006 (the
"Effective
Date"), by and between NTL
Incorporated, a
Delaware corporation
(the "Company"),
and Bryan H. Hall
(the "Executive").
WHEREAS, on 3 March
2006, NTL Incorporated and Telewest Global, Inc.
effected a merger
transaction
(the "Merger"), structured as a reverse
acquisition, whereby
Telewest Global, Inc.
acquired NTL
Incorporated and
both companies changed
their names so that Telewest Global, Inc. became
"NTL Incorporated" and
former NTL Incorporated became "NTL Holdings Inc."
("Old NTL");
WHEREAS, as a result
of the Merger,
Old NTL became a wholly owned
subsidiary of the Company and shares of Old NTL were converted into shares
of the Company, so that one share of common stock of Old NTL became
two and
a half shares of the common stock of the Company after giving
effect to the
Merger;
WHEREAS, the Executive
has been employed as the Secretary and General
Counsel of Old NTL since June 15, 2004 and as Secretary and General
Counsel
of the Company since the closing of the Merger on 3 March 2006,
pursuant to
the terms of an Employment Agreement dated as of 28 May 2004 (the
"Original
Agreement");
WHEREAS, the
Company and the Executive each desire to amend and
restate the Original
Agreement in its
entirety to extend the
Employment
Term, to provide for
the assignment
of this Agreement by Old NTL to the
Company, to provide
for certain additional
restricted
stock grants and
stock option
grants to the
Executive and to provide for his continued
employment with the Company, which is now the parent entity of the
group;
WHEREAS the parties
intend that (i) the Executive will reside in the
United Kingdom and perform duties on behalf of the consolidated
enterprise
as its General Counsel
while present in the United Kingdom, particularly
with regard to the
U.K. business,
and (ii) he will
travel to the
United
States where he will perform duties on behalf of the Company as its
General
Counsel, in each case upon the terms and conditions of this
Agreement; and
WHEREAS, the Executive
wishes to accept such employment and to render
services to the Company on the terms and conditions set forth
herein.
NOW,
THEREFORE,
in consideration
of the mutual
covenants
contained
herein and for other
good and valuable
consideration,
the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Amendment. The Original Agreement is hereby amended and restated
in
its entirety by this Agreement. The parties have agreed to assign
the terms
of the Original
Agreement, as amended
and restated hereby, to the Company
from Old NTL and accordingly the term "Company" now refers to NTL
Incorporated,
the ultimate
parent entity. In connection with such
assignment, the
parties acknowledge
and agree that (i) all
rights of Old
NTL under the Original
Agreement are now
rights of the Company under this
Agreement and shall be
enforceable
against the
Executive solely by the
Company, (ii) all
rights of the
Executive under the
Original Agreement
shall be enforceable by the Executive solely against the Company,
(iii) all
obligations of Old NTL under the Original Agreement are now obligations
of
the Company under this
Agreement and shall be enforceable by the Executive
solely against the Company and (iv) all obligations of the Executive
under
the Original Agreement shall be enforceable against the Executive
solely by
the Company. The
Executive hereby releases and waives Old NTL from any and
all claims he may have
against it as of the date hereof and acknowledges
that, from and after the date hereof, such claims shall be asserted
solely
against the Company.
2.
Employment
Term.
---------------
(a) The term of the Executive's employment pursuant to this
Agreement (the
"Employment Term")
shall commence as of the Effective Date
and shall end on January 15, 2009, unless the Employment Term terminates
earlier pursuant to Section 7 of this Agreement. The Employment
Term may be
extended by mutual agreement of the Company and the Executive.
(b) Title; Duties.
During the
Employment
Term, the Executive
shall serve the Company as its General Counsel and, in such
capacity, shall
perform such duties, services and responsibilities as are
commensurate with
such position.
In his capacity as
General Counsel,
the Executive
shall
report to the Chief Executive Officer of the Company. During the
Employment
Term, the Executive shall be based in the United Kingdom but shall
undertake such overseas travel as is necessary for the
proper performance
of his duties hereunder.
During the Employment
Term, the Executive shall devote substantially
all of his time to the performance of the Executive's duties hereunder and
will not, without the prior written approval of the Chief Executive
Officer
of the Company, engage
in any other business
activity which interferes in
any material
respect with the performance of the Executive's duties
hereunder or which is
in violation of written policies established from
time to time by the
Company. Nothing
contained in this
Agreement shall
preclude the
Executive from devoting a reasonable amount of time and
attention during the
Employment Term to (A)
continuing legal
education,
including, without
limitation,
any and all
continuing
legal education
efforts as may be required to remain in good standing with the bar of the
State of New York
(which may include
attendance
at seminars and other
similar events) and
(B) (i) serving, with
the prior approval of the Board
of Directors of the Company (the "Board"), as a non-executive director,
trustee or member of a
committee of any
for-profit
organizations;
(ii)
engaging in charitable and community activities (including pro bono legal
services); and (iii)
managing personal and family investments and affairs,
so long as any
activities of the
Executive which are
within the scope of
clauses (A) and (B)
(i), (ii) and (iii) of this Section 2(b) do not
interfere in any material respect with the performance of the Executive's
duties hereunder.
3.
Monetary
Remuneration.
---------------------
(a) Base Salary.
During the Employment Term, in consideration of
the performance by the Executive of the Executive's obligations hereunder
to the Company and its parents, subsidiaries, associated and affiliated
companies and joint ventures (collectively, the "Company Affiliated
Group")
in any capacity (including any services as an officer, director,
employee,
member of any Board
committee or management committee or otherwise),
the
Company shall cause to
be paid to the
Executive an annual
salary of (x)
(pound)300,000 in respect of the period prior to September 12, 2006
and (y)
(pound)320,000 in respect of the period on and following September
12, 2006
(the "Base Salary"),
which shall accrue on a daily basis. The Base Salary
shall be payable in accordance with normal payroll practices in
effect from
time to time for senior management generally; provided, that (i)
(pound)6,000 of the
Base Salary shall be paid each month to the Executive
in U.K. pounds
sterling and (ii) the remainder of the Base Salary shall be
paid in the form of U.S. dollars (converted from U.K. pounds sterling to
U.S. dollars
at a rate of $1.917
per (pound)1
(the "Exchange Rate"));
provided, that the
Executive may elect during each calendar quarter to
adjust the portion of his monthly take-home pay in U.K. pounds
sterling, or
U.S. dollars,
as the case may be, at
the exchange rate
offered under the
Company's Exchange
Rate Policy as in effect from time to time. The
Executive shall
receive no additional
compensation
for services that
he
provides to the
Company Affiliated
Group other than as
set forth in this
Agreement.
(b) Annual Cash
Bonus. During each fiscal year of the
Company
that the Employment
Term is in effect, the
Executive shall be eligible to
earn a cash bonus,
paid in U.S. dollars,
in the sole
discretion
of the
Board of (at target) 75%, but subject to a maximum of 150%,
of Base Salary
(prorated for any partial fiscal year) (the "Annual Cash Bonus");
provided,
that, for purposes of determining the percentage of Base Salary as
to which
the Annual Cash Bonus is measured, the Base Salary shall be
determined as
if the Executive
had elected to be paid entirely in U.S. dollars; and
provided, further, that the Executive may elect prior to the
payment of the
Annual Cash Bonus to
convert all or any
portion of the Annual
Cash Bonus
into U.K. pounds
sterling at the exchange rate offered under the Company's
Exchange Rate
Policy as in effect
from time to time.
In addition, the
Company shall cause the Executive to participate in the NTL Group
Long Term
Incentive Plan.
(c) Expatriate
Package. During the
Employment Term and
for any
period during which the Executive is required by the Company to
live in the
United Kingdom,
the Executive and his family shall have the right to
receive the benefits of the Company's standard expatriate benefits package
(as applied
to comparable United States expatriate employees of the
Company), but in any
event such benefits will be consistent with the terms
set forth in Appendix A. Tax equalization shall be consistent with
existing
Company Tax
Equalization Policy,
attached as Appendix B
and incorporated
herein by reference.
4.
Equity-Based
Compensation.
-------------------------
During the Employment Term, the Executive shall be eligible to
receive
options to purchase
common stock of the Company in addition to the options
described in
Appendix C at such exercise prices, schedules as to
exercisability and
other terms and
conditions as
determined in the
sole
discretion of the
Board or its Compensation Committee under the NTL
Incorporated 2006
Stock Incentive Plan (As Amended and Restated Effective
as of June 15, 2006) or successor plan. The Executive shall also
participate in the Company's long term incentive plans.
5.
Benefits.
--------
(a) During the Employment Term, the Executive shall be entitled
to participate in all of the employee benefit plans, programs,
policies and
arrangements
(including fringe benefit and executive perquisite programs
and policies) made available by the Company Affiliate Group to, or for the
benefit of, its executive officers in accordance with the
terms thereof as
they may be in effect
from time to time, in
so far as such
benefits are
capable of being provided in the United Kingdom.
(b) Reimbursement
of Expenses.
During the Employment
Term, the
Company shall cause
the Executive
to be reimbursed for all reasonable
business expenses incurred by the Executive in carrying out the
Executive's
duties, services and responsibilities under this Agreement,
and reasonable
expenses incurred in
connection with maintaining admission to practice in
the State of New York, so long as the Executive complies with the general
procedures of the
Company Affiliated Group for submission of expense
reports, receipts or
similar documentation
of such expenses applicable to
senior management generally.
6.
Vacations.
For each whole and
partial calendar year during the
Employment Term, the
Executive shall be entitled in addition to public and
statutory holidays to
28 days of paid
vacation (prorated for
any partial
calendar year),
to be credited and
taken in accordance with the Company's
policy as in effect from time to time for its similarly situated
executives.
7.
Termination;
Severance.
----------------------
(a) Termination
of Employment. The Company may terminate the
employment of the
Executive in a
Termination Without
Cause upon 30 days'
written notice to the Executive. The Company may (at its
discretion) at any
time following
the giving of such
notice (but not exceeding the length of
the notice given)
cease to provide work
for the Executive in
which event
during such notice
period the other
provisions of this
Agreement shall
continue to have full
force and effect but the Executive shall not be
entitled to access to
any premises
of the Company or any member of the
Company Affiliated
Group. In addition, the employment of the Executive
shall automatically terminate as of the date on which the Executive
dies or
is Disabled. For the
purposes of this
Agreement, the
Executive shall be
"Disabled" as of any
date if, as of such
date, the Executive has been
unable, due to physical or mental incapacity, to substantially perform the
Executive's duties,
services and
responsibilities
hereunder either for a
period of at least
180 consecutive days or for at least 270 days in
any
consecutive 365-day period, whichever may be applicable.
Upon termination
of the Executive's
employment
during the
Employment
Term because the
Executive dies or is
Disabled, the Company
shall cause the
Executive (or
the Executive's
estate, if applicable) to be provided with death or
disability benefits
(as applicable) pursuant to the plans, programs,
policies and
arrangements of the Company Affiliated Group as are then in
effect with
respect to executive officers. In addition, upon any
termination of the Executive's employment during the Employment Term,
the
Company shall cause the Executive to be paid any earned but unpaid
portion
of the Base Salary and Annual Cash Bonus. Immediately following
termination
of the Executive's
employment for any
reason, the Employment
Term shall
terminate.
(b) Termination Without Cause; Constructive Termination Without
Cause. Upon a
Termination
Without Cause or a Constructive Termination
Without Cause,
the Company shall,
as soon as
practicable
following the
Executive's execution and delivery to the Company of the general
release of
claims set forth in
Section 7(g) and,
following the expiration of any
applicable revocation
period, cause the Executive to be paid a
lump-sum
severance payment of cash equal to the product of the Base Salary
times 3.
(c) Termination upon
Non-Renewal of the Employment Term. Unless
the parties hereto agree otherwise, the Employment Term and the
Executive's
employment with the
Company shall end on
January 15, 2009. In
connection
with such termination of employment, the Company shall, as soon as
practicable following the Executive's execution and delivery to the
Company
of the general
release set forth in Section 7(g) and following the
expiration of any applicable revocation period, cause the Executive to be
paid a lump-sum
severance payment of
cash equal to one-half
of the Base
Salary. In the
event that the Executive has not obtained subsequent
employment (as a common-law employee, as an independent contractor or in
any other capacity) by the end of the six-month period following the date
of termination
pursuant to this Section 7(c), then, during each of the six
calendar months after
such six-month period,
the Company shall
cause the
Executive to be paid
additional severance
pay equal to one-twelfth of the
Base Salary; provided,
that the right to additional severance pay pursuant
to this sentence shall terminate as to any unpaid portion of such
severance
pay when the Executive
first obtains any such
subsequent employment.
In
addition, in
connection with a termination of employment pursuant to this
Section 7(c),
the Company shall cause the Executive to be paid a full
annual bonus for the Company's 2008 fiscal year, determined based
on actual
satisfaction of any applicable performance goals during such fiscal year,
with such bonus to be paid promptly after the determination of the amount
thereof and without
application of any
mandatory deferral
provisions or
continued employment requirements.
(d) Upon a termination of the Executive's employment during the
Employment Term by the
Company for Cause, or upon termination by the
Executive with 30
days' written notice
given to the Company (other than a
Constructive Termination Without Cause), the Executive shall be
entitled to
earned but unpaid Base Salary and benefits through the date of
termination,
and the Executive shall not be entitled to any other payments or
benefits.
(e) Upon any termination of the Executive's employment during
the
Employment Term other than by the Company for Cause, the Executive and his
family shall be
entitled to continued medical benefits under (and in
accordance with the
terms of) the Company's benefit plans for 1 year from
the date of termination.
For
purposes of this Agreement:
(i) A "Constructive
Termination
Without Cause" means a
termination of the Executive's employment during the Employment
Term by the
Executive following
the occurrence of any of the following events without
the Executive's prior
consent: (A) failure
by the Company to continue the
Executive as the General Counsel (excluding a promotion);
(B) any material
diminution in
the Executive's working conditions or authority,
responsibilities or authorities; (C) assignment to the Executive of
duties
that are inconsistent,
in a material respect, with the scope of duties and
responsibilities
associated with his position as set forth herein; (D) any
materially adverse
change in the
reporting structure applicable to the
Executive (but not including a change in the person filling the
position to
which the Executive
reports); (E) the failure of the Company to
maintain
commercially
reasonable directors'
and officers' liability insurance; or
(F) a Change in
Control occurs and the Executive is terminated in a
Termination Without
Cause during the period commencing on the date of the
Change in Control and ending on the first anniversary thereof. For
purposes
of this Agreement,
a "Change in
Control" is defined in Appendix D, and
incorporated by
reference. The
Executive shall give
the Company 10 days'
notice of the Executive's intention to terminate the Executive's
employment
and claim that a Constructive Termination Without Cause (as defined
in (A),
(B), (C), (D), (E) or (F) above) has occurred, and such notice shall
describe the facts and circumstances in support of such claim in
reasonable
detail. The Company
shall have 10 days
thereafter to cure
such facts and
circumstances if possible.
(ii) A "Termination
Without Cause" means a termination of
the Executive's
employment during the Employment Term by the Company other
than for Cause.
(iii) "Cause"
means (x) the
Executive is convicted
of, or
pleads guilty or nolo
contendere
to, a felony or to any
crime involving
fraud, embezzlement
or breach of trust; (y) the willful or continued
failure of the Executive to perform the Executive's duties
hereunder (other
than as a result of physical or mental illness); or (z) in carrying
out the
Executive's duties
hereunder,
the Executive has engaged in conduct
that
constitutes gross
neglect or
willful misconduct, unless the Executive
believed in good faith
that such conduct
was in, or not
opposed to, the
best interests
of the Company
and each member of the
Company Affiliated
Group. The
Company shall give the Executive 10 days' notice of the
Company's intention to terminate the 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. The
Executive shall
have 10 days thereafter to cure such facts and
circumstances if
possible. If the Board reasonably concludes that the
Executive has not cured such facts or circumstances within such
time, Cause
shall not be deemed to have been established unless and until the
Executive
has received a hearing
before the Board (if promptly requested by the
Executive) and a
majority of the Board
within 10 days of the date of such
hearing (if so
requested) reasonably
confirms the existence
of Cause and
the termination of the Executive therefor.
(f) Effect of Section 409A of the Internal Revenue Code. If the
Executive is a
"specified
employee" for purposes of Section 409A of
the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder,
any severance payments
to the Executive which
are subject to Section 409A
shall not commence
until six months from
the date of his
termination of
employment, and the first payment after such period shall include
all prior
severance payments
that would have been
paid during such six month period
if Section 409A had not been applicable thereto.
(g) Release;
Full
Satisfaction.
Notwithstanding
any other
provision of this
Agreement, no
severance pay shall become payable under
this Agreement unless
and until the Executive and the Company execute the
general release of
claims in form attached as Appendix E, including where
relevant a release of any statutory claims, and such release has become
irrevocable; provided,
that the Executive shall not be required to release
any indemnification
rights, rights to benefits, and any accrued rights
under this Agreement. The payments to be provided to the Executive
pursuant
to this Section 7 upon
termination of the
Executive's
employment
shall
constitute the exclusive payments in the nature of severance or
termination
pay or salary
continuation
which shall be due to the Executive upon a
termination of
employment and shall
be in lieu of any other such payments
under any severance or termination plan, program, policy or other
arrangement which has
heretofore been or shall hereafter be established by
any member of the Company Affiliated Group.
(h) Resignation. Upon
termination of the Executive's employment
for any reason, the
Executive shall be deemed to have
resigned from all
positions with any member of the Company Affiliated Group, as
applicable.
(i) Cooperation Following Termination. Following termination of
the Executive's
employment
for any reason, the Executive agrees to
reasonably cooperate
with the Company upon the reasonable request of the
Board and to be reasonably available to the Company with respect to
matters
arising out of the
Executive's
services to any member of the Company
Affiliated Group.
The Company
shall cause the
Executive to be reimbursed
for, or, at the
Executive's request,
cause the Executive to
be advanced,
expenses reasonably incurred in connection with such matters.
8.
Executive's
Representation.
The Executive re
