Exhibit 10.1
EMPLOYMENT AGREEMENT
AGREEMENT
dated as of December 15, 2005, by and between NTL
Incorporated, a Delaware corporation (the
"Company"), and Stephen Burch
(the "Executive").
WHEREAS,
the Company wishes to employ the Executive as President and
Chief Executive Officer of the Company,
effective not later than January
16, 2006 (the "Effective Date");
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 President and Chief Executive
Officer while present in the United
Kingdom, particularly with regard to the UK
business, and (ii) he will
travel to the United States where he will
perform duties on behalf of the
Company as its President and Chief
Executive Officer, 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 other good and valuable
consideration, the receipt and
sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.
EFFECTIVENESS. This Agreement shall become effective as of the
Effective Date.
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 December 31, 2008, 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 President and
Chief Executive Officer and, in such
capacity, shall perform such duties,
services and responsibilities as are
commensurate with such position. In his
capacity as President and Chief
Executive Officer, the Executive shall
report to the Board of Directors of
the Company (the "Board"). 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 work
time to the performance of the Executive's
duties hereunder and will not,
without the prior written approval of the
Chairman of the Board 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.
(c) BOARD POSITION: The Company shall nominate the Executive to
serve on the Board of Directors of the
Company as a Class II Director and
the Board of Directors of the Company shall
as of the Effective Date take
such actions as may be necessary under the
Bylaws of the Company to appoint
the Executive to such board seat.
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
$750,000 (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 the
Executive may designate at one time each
year a percentage of cash
compensation, not yet paid, to be paid in
British Pounds Sterling, with the
exchange rate set on the date that such
designation is made by reference to
the noon buying rate as quoted by the
Federal Reserve Bank of New York. The
Executive shall receive no additional
compensation for services that he
provides to the Company Affiliated Group
other than as set forth herein.
(b) ANNUAL BONUS. During each fiscal year of the Company that
the
Employment Term is in effect, the Executive
shall be eligible to earn a
bonus in the sole discretion of the Board
of (at target) 100%, but subject
to a maximum of 200%, of Base Salary
(prorated for any partial fiscal year)
(the "Annual Bonus").
(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
by reference.
4. EQUITY-BASED COMPENSATION.
-------------------------
During the Employment Term, the Executive will receive the
restricted stock as described as Appendix
C, subject to a Restricted Stock
Agreement in the form attached as Appendix
C-1.
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. 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 25 days of paid
vacation, 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(e) 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 2.
(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
December 31, 2008. 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(e) 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) TERMINATION FOR CAUSE. 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, in the
nature of severance or termination.
DEFINITIONS
-----------
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 President and Chief
Executive Officer (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 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
therefore.
(e) 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.
(f) 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.
(g) 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.
[INTENTIONALLY OMITTED]
9.
EXECUTIVE'S COVENANTS.
---------------------
(a) CONFIDENTIALITY. The Executive agrees and understands that
The
Executive has been, and in the Executive's
position with the Company the
Executive will be, exposed to and receive
information relating to the
confidential affairs of the Company
Affiliated Group, including, without
limitation, technical information, business
and marketing plans,
strategies, customer (or potential
customer) information, other information
concerning the products, promotions,
development, financing, pricing,
technology, inventions, expansion plans,
business policies and practices of
the Company Affiliated Group, whether or
not reduced to tangible form, and
other forms of information considered by
the Company Affiliated Group to be
confidential and in the nature of trade
secrets. The Executive will not
knowingly disclose such information, either
directly or indirectly, to any
person or entity outside the Company
Affiliated Group without the prior
written consent of the Company; provided,
however, that (i) the Executive
shall have no obligation under this Section
9(a) with respect to any
information that is or becomes publicly
known other than as a result of the
Executive's breach of the Executive's
obligations hereunder and (ii) the
Executive may (x) disclose such information
to the extent he determines
that so doing is reasonable or appropriate
in the performance of the
Executive's duties or, (y) after giving
prior notice to the Company to the
extent practicable, under the
circumstances, disclose such information to
the extent required by applicable laws or
governmental regulations or by
judicial or regulatory process. Upon
termination of the Executive's
employment, the Executive shall promptly
supply to the Company all
property, keys, notes, memoranda, writings,
lists, files, reports, customer
lists, correspondence, tapes, disks, cards,
surveys, maps, logs, machines,
technical data and any other tangible
product or document which has been
produced by, received by or otherwise
submitted to the Executive in the
course of or otherwise in connection with
the Executive's services to the
Company Affiliated Group during or prior to
the Employment Term.
(b) NON-COMPETITION AND NON-SOLICITATION. During the period
commencing upon the Effective Date and
ending on the 18-month anniversary
of the termination of the Executive's
employment with the Company, the
Executive shall not, as an employee,
employer, stockholder, officer,
director, partner, associate, consultant or
other independent contractor,
advisor, proprietor, lender, or in any
other manner or capacity (other than
with respect to the Executive's services to
the Company Affiliated Group),
directly or indirectly:
(i) perform services for, or otherwise have any involvement
with, any business unit of a person, where
such business unit competes
directly or indirectly with any member of
the Company Affiliated Group by
owning or operating (x) broadband
communications networks for telephone,
cable television or internet services or
(y) transmission networks for
television and radio broadcasting, in each
case principally in the United
Kingdom or Ireland (the "Core Business");
provided, however, that this
Agreement shall not prohibit the Executive
from owning up to 1% of any
class of equity securities of one or more
publicly traded companies;
(ii) hire any individual who is, or within the 12 months prior
to the Executive's termination was, an
employee of any member of the
Company Affiliated Group whose base salary
at the time of hire exceeded
(pound)65,000 per year and with whom the
Executive had direct contact
(other than on a de minimis basis); or
(iii) solicit, in competition with any member of the Company
Affiliated Group in the Core Businesses,
any business, or order of business
from any person that the Executive knows
was a current or prospective
customer of any member of the Company
Affiliated Group during the
Executive's employment and with whom the
Executive had contact;
(c) PROPRIETARY RIGHTS. The Executive assigns all of the
Executive's interest in any and all
inventions, discoveries, improvements
and patentable or copyrightable works
initiated, conceived or made by the
Executiv
