Service Agreement

Contract

DATED 11 AUGUST 2005 -------------------- NTL GROUP LIMITED and NEIL BERKETT ========================================== SERVICE AGREEMENT ========================================== [graphic omitted] NTL GROUP LIMITED BARTLEY WOOD BUSINESS PARK HOOK HAMPSHIRE RG27 9UP CONTENTS CLAUSE PAGE 1 DEFINITIONS AND INTERPRETATION 1 2 TERM OF EMPLOYMENT 2 3 DUTIES 2 4 HOURS OF WORK 3 5 GRATUITIES 3 6 CODES OF CONDUCT 4 7 REMUNERATION 4 8 PENSION SCHEME 5 9 OTHER BENEFITS 5 10 SHARE OPTIONS 6 11 COMPANY CAR ALLOWANCE 6 12 FUEL 7 13 EXPENSES 7 14 ANNUAL LEAVE 7 15 ILLNESS 8 16 RESTRICTIONS DURING EMPLOYMENT 8 17 INTELLECTUAL PROPERTY 9 18 CONFIDENTIALITY 9 19 DATA PROTECTION 10 20 DEDUCTIONS FROM SALARY 10 21 HEALTH AND SAFETY 11 22 ENTITLEMENT TO WORK IN THE UK 11 23 MONITORING 11 24 TERMINATION OF EMPLOYMENT 11 25 SUSPENSION AND GARDEN LEAVE 13 26 TERMINATION AND RETURN OF COMPANY PROPERTY 14 27 RECONSTRUCTION OR AMALGAMATION 14 28 RESTRICTIONS AFTER EMPLOYMENT 15 29 SEVERABILITY 18 30 THIRD PARTIES 18 31 NOTICES 18 32 STATUTORY INFORMATION 19 33 MISCELLANEOUS 19 34 CHANGES TO TERMS AND CONDITIONS 19 SCHEDULE 1 Statement Of Particulars Pursuant To The Employment Rights Act 1996 20 SCHEDULE 2 Certificate of Compliance 21 THIS DEED is made on 11 August 2005 BETWEEN: (1) NTL GROUP LIMITED whose registered office is at ntl House, Bartley Wood Business Park, Hook, Hampshire, RG27 9UP (the "COMPANY"); and (2) Neil Berkett of Woodpeckers, 31 Meadway, Esher, Surrey KT10 9HG (the "EXECUTIVE"). RECITAL The Company shall employ the Executive and the Executive shall serve the Company as "CHIEF OPERATING OFFICER" of the Company on the following terms and subject to the following conditions (the "AGREEMENT"): NOW THIS DEED WITNESSES: 1 DEFINITIONS AND INTERPRETATION 1.1 In this Agreement unless the context otherwise requires the following expressions shall have the following meanings: "BOARD" the board of directors from time to time of the Company or any Group Company as the case may be (including any committee of the board duly appointed by it); "CHANGE IN CONTROL" as defined in APPENDIX D; "GROUP" the Company, its holding company (as defined in Section 736 of the Companies Act 1985) and its group undertakings (as defined in Sections 258 and 259 of the Companies Act 1985) from time to time and "GROUP COMPANY" means any one of them and "GROUP COMPANY" includes, without limitation, NTL Incorporated; "REGULATIONS" the Working Time Regulations 1998; and "TERMINATION WITHOUT CAUSE" as defined in APPENDIX D. 1.2 Any reference to a statutory provision shall be deemed to include a reference to any statutory modification or re-enactment of it. 1.3 The headings in this Agreement are for convenience only and shall not affect its construction or interpretation. 1.4 References in this Agreement to a person include a body corporate and an incorporated association of persons and references to a company include any body corporate. 1.5 Where appropriate, references to the Executive include his personal representatives. 2 TERM OF EMPLOYMENT 2.1 The employment of the Executive shall commence on 26 September 2005 (the "EFFECTIVE DATE"), and (subject to termination as provided below) shall be for an indefinite period terminable by the Company giving to the Executive 12 months' notice in writing and by the Executive giving to the Company 6 months' notice in writing. 2.2 Notwithstanding clause 2.1 above the employment of the Executive shall automatically terminate on the day when the Executive reaches age 65. 2.3 The Executive represents and warrants that he is not bound by or subject to any contract, court order, agreement, arrangement or undertaking which in any way restricts or prohibits him from entering into this Agreement or performing his duties under it and undertakes to indemnify the Company against any claims, costs, damages, liabilities or expenses which the Company may incur as a result of any claim that he is in breach of any such obligations. 3 DUTIES 3.1 The Executive shall during his employment under this Agreement: 3.1.1 perform the duties and exercise the powers which the Board may from time to time properly assign to him in his capacity as Chief Operating Officer or in connection with the conduct and management of the business of the Company or the business of any Group Company (including serving on the board of such Group Company or on any other executive body or any committee of such a company); 3.1.2 do all in his power to promote, develop and protect the business of the Company and any Group Company and at all times and in all respects conform to and comply with the proper and reasonable directions and regulations of the Board; 3.1.3 devote the whole of his working time and attention to the duties assigned to him; 3.1.4 faithfully and diligently serve the Company and the Group; 3.1.5 act in the best interests of the Company and any Group Company; 3.1.6 comply with his fiduciary duties; 3.1.7 not enter into any arrangement on behalf of any Group Company which is outside its normal course of business or his normal duties or which contains unusual or onerous terms; and 3.1.8 report the wrongdoing (including acts of misconduct, dishonesty, breaches of contract, fiduciary duty, company rules or the rules of the relevant regulatory bodies) whether committed, contemplated or discussed by any other director or member of staff of the Company and any Group Company of which the Executive was aware to the Board immediately, irrespective of whether this may involve some degree of self incrimination. 3.2 The Executive shall give to the Board such information regarding the affairs of the Group as it shall require, and in any event, report regularly and keep the Board informed. 3.3 The Executive shall carry out his duties and exercise his powers jointly with any other executive(s) appointed by the Board to act jointly with him and the Board may at any time require the Executive to cease performing or exercising the said or any duties or powers. 3.4 The Executive's normal place of work will be Hook, Hampshire (and such London and Hammersmith offices as may be directed by the Board or the President). The Executive agrees that he may however work in any place within the United Kingdom which the Board may require and he may be required to travel abroad when required by the Group for the proper performance of his duties. 3.5 If the Company requires the Executive to work permanently at a place which necessitates a move from his present home address the Company will reimburse the Executive for all eligible removal expenses in accordance with the terms of the Company's Relocation policy in force from time to time. 4 HOURS OF WORK 4.1 The Executive shall have no normal hours of work but is required to devote such time to his work as is necessary for the proper performance of his duties. 4.2 The parties agree that the nature of the Executive's position is such that his employment is not and cannot be measured and so his employment falls within the scope of Regulation 20 of the Regulations. 5 GRATUITIES 5.1 The Executive shall not directly or indirectly accept any commission, rebate, discount or gratuity in cash or in kind from any person who has or is having or is likely to have a business relationship with the Company or any Group Company unless the gratuity is of minimal value and only made on an occasional basis. 5.2 Notwithstanding Clause 5.1 above, the Executive shall register any such gratuity on the Gifts and Hospitality Register, whether or not any such gift or hospitality is accepted. Details of the Gifts and Hospitality Register are available from Human Resources or via the Human Resources intranet site. 6 CODES OF CONDUCT 6.1 Subject to the terms of Clause 16 the Executive shall comply (and procure that his spouse and minor children shall comply) with all applicable rules and regulations of the NASDAQ Exchange and the laws of the United States of America applicable to any Group Company, including without limitation the regulations of the U.S. Securities and Exchange Commission. 6.2 The Executive shall comply with any Codes of Conduct of the Group (including but not limited to the Company's Code of Conduct together with the Code of Ethics for Principle Executive and Senior Officers of NTL Incorporated and the Company's Disclosure Policy and Insider Trading Policy) from time to time in force and any other relevant regulatory authority. The Company may require from time to time questionnaires or other forms to be completed by the Executive in connection with these Codes of Conduct and other policies; the Executive agrees to complete these forms in a timely fashion. 6.3 The Executive shall sign the Company's Certificate of Compliance in relation to any such codes; a copy of the Certificate is appended to this Agreement under SCHEDULE 2. In the event that the Company requires further certifications, the Executive agrees to comply in a timely fashion. 7 REMUNERATION 7.1 The Company shall pay to the Executive a salary at the rate of three hundred and seventy five thousand pounds ((pound)375,000) gross per year subject to deductions for income tax and national insurance contributions and inclusive of any fees payable to him by reason of his holding any Office in the Company or any Group Company. 7.2 The Executive's salary shall accrue from day to day and be payable by equal monthly instalments in arrears on or about the last working day of each month. 7.3 The Executive's salary shall be reviewed once in every year; the first review to be on or about September 2006. Thereafter the review date will normally be the 1 July of each following year. The undertaking of a salary review does not confer a contractual right (whether express or implied) to any increase in salary and the Executive acknowledges that any salary increase is at the discretion of the Company. 7.4 The Executive is eligible to participate in the Company's Executive Bonus Scheme subject to the rules as amended from time to time. The payment of any bonus together with any amount payable is at the Company's absolute discretion and may from time to time be determined by the Board. Any bonus payment will not be part of the contractual remuneration or fixed salary hereunder. Details of the Executive Bonus Scheme will be communicated to the Executive separately. 7.5 Entitlement to any bonus is conditional upon the Executive being employed on the last calendar day of the relevant bonus period (currently 31 December). The Executive acknowledges that the termination of the Executive's employment whether lawful or unlawful prior to the last calendar day of the relevant period shall not in any circumstance give rise to a claim by the Executive for compensation in lieu of such bonus or compensation to cover the loss of opportunity to earn such bonus; provided however that the Company will in good faith consider making a pro rata bonus payment to the Executive, in its sole discretion. 7.6 The Executive shall have the right to receive options to purchase current stock of NTL Incorporated as described in APPENDIX C. 8 PENSION SCHEME 8.1 The Company currently operates a contributory pension scheme with Winterthur Life GPP Pension Plan (the "PENSION SCHEME"). An outline description of the terms of the Pension Scheme are set out in the member's guide. A copy of this document is available to the Executive on request from Human Resources. At any time the Company may elect to suspend or terminate operation of the Pension Scheme and may or may not elect to replace the scheme with another arrangement. 8.2 The Executive is entitled to become a member of the Pension Scheme subject to its terms and Inland Revenue limits as amended from time to time. The Company shall deduct from the Executive's salary any contributions payable by him from time to time to the Pension Scheme or any other pension scheme of the Group of which he becomes a member. 8.3 For each full twelve month period during employment, the Company shall cause a contribution of 20% of Base Salary to be made to an agreed upon pension scheme, and to the maximum extent possible, such contribution shall be made to a pension scheme approved by the Inland Revenue. All such contributions shall be subject to the applicable law, and, to the extent any such contribution cannot be made to such pension scheme under applicable Inland Revenue rules or applicable law, it shall as directed by the Executive. 9 OTHER BENEFITS 9.1 The Executive may participate in the following schemes (each referred to below as an "INSURANCE SCHEME"): 9.1.1 a private medical expenses insurance scheme providing such cover for the Executive and his spouse/partner and children [as defined in the rules of the scheme] as the Company may from time to time notify to the Executive. This benefit will be subject to deduction of tax in line with Inland Revenue requirements; 9.1.2 a private dental insurance scheme providing such cover for the Executive and his spouse/partner as the Company may from time to time notify to the Executive. This benefit will be subject to the deduction of tax in line with Inland Revenue requirements; 9.1.3 a salary continuance or long-term disability insurance scheme providing such cover for the Executive as the Company may from time to time notify to him; 9.1.4 a life insurance scheme under which a lump sum benefit shall be payable on the Executive's death while this Agreement continues; the benefit of which shall be paid to such dependants of the Executive or other beneficiary as the trustees of the scheme select at their discretion, after considering any beneficiaries identified by the Executive in any expression of the Executive's wishes delivered to the trustees before his death. The benefit is equal to 4 times the Executive's annual gross earnings at his death but annual gross earnings for this purpose shall not exceed the Inland Revenue limits. The Executive is required to complete all necessary paperwork to ensure eligibility to full benefit under the scheme. The Company accepts no liability should full payment not be made on the basis that the Executive has failed to complete the requisite paperwork. The Executive may be required to undergo examinations by a medical examiner appointed or approved by the Company in connection with the operation of the scheme; and/or 9.1.5 a personal accident insurance scheme providing such cover for the Executive as the Company may from time to time notify to him. 9.2 Benefits under any insurance scheme shall be subject to the rules of the scheme(s) and the terms of any applicable insurance policy and are conditional upon the Executive complying with and satisfying any applicable requirements of the insurers. Copies of these rules and policies and particulars of the requirements shall be provided to the Executive on request. The Company shall not have any liability to pay any benefit to the Executive under any insurance scheme unless it receives payment of the benefit from the insurer under the scheme. The Company reserves the right to amend or withdraw any insurance scheme at its discretion from time to time. 9.3 Any insurance scheme which is provided for the Executive is also subject to the Company's right to alter the cover provided or any term of the scheme or to cease to provide (without replacement) the scheme at any time. 9.4 The provision of any insurance scheme does not in any way prevent the Company from lawfully terminating this Agreement in accordance with the provisions of this Agreement even if to do so would deprive the Executive of membership of or cover under any such scheme. 10 SHARE OPTIONS The Executive shall be entitled to participate in the 2004 Stock Incentive Plan for the time being in force subject to the rules applicable to such scheme as amended or varied from time to time at the Company's discretion. The Executive shall not be entitled to any compensation for the loss of this benefit or the loss of opportunity to benefit on termination of this Agreement, whether the Agreement is lawfully terminated or not. Details of the 2004 Stock Incentive Plan shall be communicated to the Executive separately. 11 COMPANY CAR ALLOWANCE The Company shall provide the Executive with a non-pensionable car allowance of eight hundred and eighty five pounds ((pound)885) gross per month payable monthly in arrears, together with payment of salary pursuant to Clause 7. Full details are contained in the Perk Car Policy and Fuel Policy which is available on the Company's Intranet. The Company reserves the right to review and amend these policies at any time. It is a condition of the Executive's employment that the Executive retains a current full driving licence (valid in the UK) and complies with the rules of the prevailing Perk Car Policy and Fuel Policy. 12 FUEL The Executive will be allocated a fuel card which should be used for the purchase of fuel for all reasonable fuel expenses (both business and private) for the nominated funded car. Reasonable private fuel is as considered by the Board. The total amount of fuel charged to the fuel card will be declared to the Inland Revenue on the Executive's P11D. This will be subject to income tax and national insurance. The Executive should arrange to declare his business mileage to the Inland Revenue in order to gain tax relief, which is a direct arrangement between the Executive and the Inland Revenue. The Company recommends that the Executive consults an independent tax expert for advice. Further details are contained in the Company's Fuel Policy which is available on the Company's Intranet. 13 EXPENSES The Company shall reimburse or procure that the Executive is reimbursed all expenses properly incurred in accordance with the Company's Travel and Expenses policy in force from time to time and available on the Company's Intranet or from Human Resources. 14 ANNUAL LEAVE 14.1 The Executive is entitled to 28 days holiday with pay every calendar year in addition to bank and other public holidays. The Company's holiday year runs from 1 January to 31 December. 14.2 The Executive's holiday entitlement is inclusive of his statutory entitlement which is twenty (20) days per annum. When calculating the Executive's statutory entitlement bank and public holidays are taken into account. 14.3 The Company may refuse to allow the Executive to take holiday in circumstances where it would be inconvenient to the business (including bank or public holidays). The Company reserves the right to refuse holiday (including holiday that has previously been approved) up to and including the day before the holiday is due to be taken. In such circumstances the Company will however attempt to give as much notice as reasonably possible. 14.4 If either party serves notice to terminate the employment the Board may require the Executive to take any accrued but unused holiday entitlement during the notice period (whether or not the Company has exercised its rights under Clause 25.2 ("GARDEN LEAVE"). 14.5 In all other respects unless detailed above, the Executive is subject to the terms of the Company's annual leave policy which is available on the Company Intranet or from Human Resources. 15 ILLNESS 15.1 If the Executive is absent from work due to sickness or injury, the Executive may be eligible for Company sick pay, which is payable at the Company's absolute discretion. Subject to this discretion and provided the Executive complies with the Sickness Absence Policy requirements, the Executive will be paid according to the Executive's normal basic salary rate. Further details are set out in the Company's Sickness Absence Policy which is available on the Company's Intranet or can be obtained from Human Resources. 15.2 If the Executive is incapable of performing his duties by reason of injury sustained wholly or partly as a result of negligence, nuisance or breach of any statutory duty on the part of a third party and the Executive recovers an amount by way of compensation for loss of earnings from that third party, he shall immediately pay that part of such amount to the Company which relates to loss of earnings for the period during which he was paid by the Company but unable to perform his duties under the Agreement. 15.3 The Company shall be entitled to require the Executive to undergo examinations from time to time by a medical adviser appointed or approved by the Company and the Executive authorises the medical adviser and/or will provide such consents as are necessary to disclose to the Company the results of such examinations. 16 RESTRICTIONS DURING EMPLOYMENT 16.1 The Executive shall not during his employment with the Company and warrants to the Company that as at the date of this agreement he is not (save as a representative of the Company or with the prior written approval of the Board) whether directly or indirectly, paid or unpaid, be engaged or concerned in the conduct of, be or become an employee, agent, partner, consultant or director of or assist or have any financial interest in any other actual or prospective business or profession which is similar to or in competition with the business carried on by the Company or any Group Company or which may reasonably be thought by the Board to interfere, conflict or compete with the proper performance of the Executive's obligations to the Company. The Executive may not hold any office as a director or chairman of another company without the prior written consent of the Board. In any event, the Executive may not be the chairman of a FTSE 100 company or be a non-executive director of more than one such company. 16.2 The Executive shall be permitted to hold shares or securities of a company any of whose shares or securities are quoted or dealt in on any recognised investment exchange provided that any such holding shall not exceed one per cent of the issued share capital of the company concerned and is held by way of bona fide investment only ("INVESTMENT"). 16.3 The Executive shall disclose to the Board any matters relating to his spouse (or anyone living as such), their children, stepchildren, parents or any trust or firm whose affairs or actions he controls which, if they applied to the Executive, would contravene clauses 16.1 or 16.2 to the extent that he has actual knowledge of such matters. 17 INTELLECTUAL PROPERTY 17.1 "INTELLECTUAL PROPERTY RIGHTS" means any patents, trade marks, service marks, design rights, registered designs, applications for any of the foregoing, copyright, database rights, know-how and other similar rights or obligations whether registrable or not in any country. 17.2 The parties agree that any Intellectual Property Rights in any material or invention that the Executive creates (or participates in creating) in the course of business ("COMPANY IPR") shall vest in the Company. 17.3 The Executive hereby assigns to the Company with full title guarantee and, when appropriate, by way of future assignment, all his rights in the Company IPR for the full term thereof throughout the world. The Executive must complete whatever documents or take whatever action the Company may request from time to time, both during and after the termination of the Executive's employment, to obtain any applicable registrations and to confirm that all Company IPR vests in the Company. 17.4 The Executive waives all moral rights (whether arising under Chapter IV of the Copyright, Designs and Patents Act 1988 or otherwise, to the extent permissible under law) in works to which clause 17.2 applies. 17.5 The Executive hereby irrevocably appoints the Company to be his attorney in his name and on his behalf to execute and do any such instrument or thing and generally to use his name for the purpose of giving to the Company or its nominee the full benefit of this clause. 18 CONFIDENTIALITY 18.1 Without prejudice to his common law duties, the Executive shall not (save in the proper course of his duties, as required by law or as authorised by the Board) use or communicate to any person (and shall use his best endeavours to prevent the use or communication of) any trade or business secrets or confidential information of or relating to the Company or any Group Company (including but not limited to details of actual or potential customers, employees, consultants, suppliers, designs, products, product applications, trade arrangements, terms of business, customer requirements, operating systems, sales information, marketing information or strategies, manufacturing processes, software, disputes, commission or bonus arrangements, pricing and fee arrangements and structures, business plans, financial information, inventions, research and development activities, personal or sensitive personal data and anything marked or treated as confidential) which he creates, develops, receives or obtains while in the service of the Company or any Group Company. This restriction shall continue to apply after the termination of the Executive's employment howsoever arising without limit in time. 18.2 Reference to confidential information in this clause 18 shall not include information which is in the public domain at the time of its disclosure or which comes into the public domain after its disclosure otherwise than by reason of a breach of this agreement, information which was already demonstrably known to the receiving party at the date of disclosure and had not been received in confidence from the Company or information which is required to be disclosed as a matter of law. It shall include information in the public domain for so long as the Executive is in a position to use such information more readily than others who have not worked for the Company. 18.3 During his employment the Executive shall not make (other than for the benefit of the Company) any record (whether on paper, computer memory, disc or otherwise) relating to any matter within the scope of the business of the Company or any Group Company or their customers and suppliers or concerning its or their dealings or affairs or (either during his employment or afterwards) use such records (or allow them to be used) other than for the benefit of the Company or the relevant Group Company. All such records (and any copies of them) shall belong to the Company or the relevant Group Company and shall be handed over to the Chief Executive Officer by the Executive on the termination of his employment or at any time during his employment at the request of the Board. 18.4 The Executive shall not during his employment either directly or indirectly publish any opinion, fact or material on any matter within the scope of the business of the Company or any Group Company (whether confidential or not) which might reasonably be expected to have a material adverse effect on the Company (or any Group Company) without the prior written approval of the Board. 18.5 Nothing in this clause shall prevent the Executive from disclosing information which he is entitled to disclose under the Public Interest Disclosure Act 1998 provided that the disclosure is made in the appropriate way to an appropriate person having regard to the provisions of the Act and he has first fully complied with the Company's procedures relating to such disclosures. 19 DATA PROTECTION 19.1 In accordance with the Data Protection Act 1998, the Company and the Group will hold and process the information it collects relating to the Executive in the course of the Executive's employment for the purposes of employee administration, statistical and record keeping purposes. This may include information relating to the Executive's physical or mental health. Some of the Executive's information may be processed outside the European Economic area. Such information will be treated confidentially and will only be available to authorised persons. 19.2 When dealing with data relating to the Company's business, the Executive is required to comply with the Company's Data Protection Policy as in effect from time to time, which can be obtained from the Group Compliance Officer. 20 DEDUCTIONS FROM SALARY The Company reserves the right at any time during the Executive's employment, or on termination of this Agreement to deduct from salary any overpayment made and/or monies owed to the Company by the Executive. This includes but is not limited to any excess holiday, outstanding loans, advances, relocation costs, parking fines and any related administration costs for which the Executive and/or the Executive's permanent partner are responsible and which are incurred in a vehicle provided by the Company, (either company vehicle or hire car), private fuel reimbursement in accordance with the prevailing Perk Car Policy and Fuel Policy and the cost of repairing any damage or loss to property provided by the Company. This clause will not apply to any sums or benefits due to the Executive by virtue of the Executive's membership of the Company Pension Plan. 21 HEALTH AND SAFETY The Company is committed to ensuring, so far as reasonably practicable, that the workplace of every employee is safe, does not pose a risk to health and does not cause damage to the environment. The Executive is therefore required to familiarise himself with the responsibilities as outlined in the current Company's Health and Safety Policy, Environment Policy, Safety Standards booklet (NT PO90) and Safety Information Sheets. The current version is available on the Company's Intranet or can be obtained from the Health and Safety Group. 22 ENTITLEMENT TO WORK IN THE UK The Executive's employment is conditional upon the Executive being legally entitled to live and work in the UK. If the Executive's status changes and the Executive is no longer entitled to live or work in the UK, the Executive's employment will be terminated without notice or payment in lieu of notice. 23 MONITORING The Executive acknowledges that the Company may monitor messages sent and received via email, the Internet and voicemail systems to ensure that the Executive is complying with the Company's policy for use by its employees of these systems. 24 TERMINATION OF EMPLOYMENT 24.1 The Company may at any time and in its absolute discretion (whether or not any notice of termination has been given by the Company or the Executive under clause 2 above) terminate the Executive's employment with immediate effect and make a payment in lieu of notice (subject to clause 24.5). This payment shall comprise the Executive's basic salary (at the rate payable when this option is exercised) together with the following benefits to the extent that they would have been paid during the notice period: o car allowance o company pension contributions (subject to the Executive making his contribution) o any holiday which would have accrued during the notice period o fuel allowance (to be determined at the Company's discretion) o premium equivalent to private medical and dental insurance. and shall be subject to deductions for income tax and national insurance contributions as appropriate (the "PAYMENT IN LIEU"). In determining the payment the Company will also in good faith consider making a pro rata bonus payment to the Executive in accordance with clause 7.4, but subject to clause 7.5The Executive will not, under any circumstances, have any right to payment in lieu unless the Company has exercised its option to pay in lieu of notice. 24.2 The employment of the Executive may be terminated by the Company without notice or payment in lieu of notice if the Executive: 24.2.1 is guilty of any serious misconduct (including but not limited to any such act set out within the Company's disciplinary policy from time to time or in any code of conduct) or any other conduct which affects or is likely to affect prejudicially the interests of the Company or any Group Company to which he is required to render services under this Agreement; 24.2.2 fails or neglects efficiently and diligently to discharge his duties or commits any serious or repeated breach or non-observance by the Executive of any of the provisions contained in this Agreement; 24.2.3 has an interim receiving order made against him, becomes bankrupt or makes any composition or enters into any deed of arrangement with his creditors; 24.2.4 is convicted or charged with any arrestable criminal offence (other than an offence under road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); 24.2.5 is disqualified from holding office in another company by reason of an order of a court of competent jurisdiction; 24.2.6 shall become of unsound mind or become a patient under the Mental Health Act 1983; 24.2.7 is convicted of an offence under the Criminal Justice Act 1993 in relation to insider dealings or under any other present or future statutory enactment or regulations relating to insider dealings; 24.2.8 is in violation of the rules and regulations of the U.S. Securities and Exchange Commission or relevant U.S. securities laws, or the rules and regulations of the NASDAQ Exchange or any other exchange on which the Company or any Group Company's securities may be listed; 24.2.9 ceases to be a director of the Company otherwise than at the request of the Company; 24.2.10 is no longer legally entitled to live and/or work in the UK; 24.2.11 does anything (in the course of his duties or otherwise) which (in the reasonable opinion of the Board) does actually or might reasonably be expected to bring himself or any Group Company into disrepute; 24.2.12 acts in a way which is in the reasonable opinion of the Board materially adverse to the interests of the Company or any Group Company; 24.3 Any delay by the Company in exercising such right to terminate shall not constitute a waiver thereof. 24.5 In the event that 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 then: (i) the Company will as soon as practicable following the Executive's execution and delivery of a general release of claims 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 Executive's basic salary at the time of the Change in Control times 2; and (ii) the provisions of this clause 24.5 will apply exclusively and no other termination payments or notice will apply, notwithstanding any other provision hereof and in the event that any other severance, notice or other payment has been made to the Executive prior to the payment required under this clause 24.5, such prior payment amount shall be deducted from the amounts payable under clause (i) to avoid double-counting. In order for the provisions of this clause 24.5 to apply, the Executive must provide the Company with 10 days' notice of the Executive's claim that a payment is due hereunder, 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. 24.6 Notwithstanding anything to the contrary in this Agreement, the Company may assign the Executive's employment to NTL Incorporated (or its successor) or another Group Company reasonably comparable or superior to the Company within the overall corporate structure and such assignment will not constitute termination of employment hereunder and the Executive agrees to execute any and all documents necessary or reasonable to accomplish the foregoing. 25 SUSPENSION AND GARDEN LEAVE 25.1 The Company may suspend the Executive on full pay to allow the Company to investigate any complaint made against the Executive in relation to his employment with the Company. 25.2 Provided that the Executive continues to enjoy his full contractual benefits and receive his pay in accordance with this Agreement (including consideration for a bonus under clauses 7.4 and 7.5) , the Company may in its absolute discretion do all or any of the following during the notice period or any part of the notice period, after the Executive or the Company has given notice of termination to the other, without breaching this Agreement or incurring any liability or giving rise to any claim against it: 25.2.1 exclude the Executive from the premises of the Company and/or the Group; 25.2.2 require the Executive to carry out only specified duties (consistent with his status, role and experience) or to carry out no duties; 25.2.3 announce to any or all of its employees, suppliers, customers and business partners that the Executive has been given notice of termination or has resigned (as the case may be); 25.2.4 prohibit the Executive from communicating in any way with any or all of the suppliers, customers, business partners, employees, agents or representatives of the Company or the Group until his employment has terminated except to the extent he is authorised to do so by his manager in writing; 25.2.5 require the Executive to resign his directorship of any Group Company; and/or 25.2.6 require the Executive to comply with any other reasonable conditions imposed by the Company or any Group Company. The Executive will continue to be bound by all obligations (whether express or implied) owed to the Company under the terms of the Agreement or as an employee of the Company. 26 TERMINATION AND RETURN OF COMPANY PROPERTY 26.1 Upon the termination of this Agreement by whatever means the Executive shall: 26.1.1 immediately resign from his office as a director of the Company and from such offices held by him in any Group Company without claim for compensation; and 26.1.2 immediately deliver to the Company all credit cards, motor-cars, fuel card, keys, computer media and other property, in whatever form, of or relating to the business of the Company or of any Group Company which may be in his possession or under his power or control. 26.2 If the Executive fails to comply with clause 26.1.1 above the Company is hereby irrevocably authorised to appoint some person in his name and on his behalf to sign and complete any documents or do any thing necessary to give effect to this clause. 26.3 The Executive shall not without the consent of the Company at any time after the termination of this Agreement represent himself still to be connected with the Company or any Group Company. 27 RECONSTRUCTION OR AMALGAMATION If the employment of the Executive under this Agreement is terminated by reason of the liquidation of the Company for the purpose of reconstruction or amalgamation and the Executive is offered employment with any concern or undertaking resulting from the reconstruction or amalgamation on terms and conditions not less favourable than the terms of this Agreement then the Executive shall have no claim against the Company or any Group Company in respect of the termination of his employment under this Agreement. 28 RESTRICTIONS AFTER EMPLOYMENT 28.1 Definitions In this clause the following words shall have the following meanings: "AREA" the area constituting the market of the Company and any Relevant Group Company for the Services and the Products in the period of 12 months prior to the Termination Date and with which area the Executive was materially concerned at any time during the said period of 12 months; "CUSTOMER" any Person to whom the Company or any Relevant Group Company supplied the Services and the Products for business use during the 12 months preceding the Termination Date and with whom at any time during such period the Executive was materially concerned or had personal contact in the course of his employment; "KEY EMPLOYEE" any person who immediately prior to the Termination Date was an employee or consultant of the Company or any Relevant Group Company occupying a senior or managerial position who was likely to be: (i) in possession of confidential information belonging to the Company [or any Relevant Group Company; or (ii) able to influence the customer relationships or trade connections of the Company or any Relevant Group Company with whom the Executive worked closely at any time during the period of 12 months prior to the Termination Date; "PERSON" includes any company, firm, organisation or other entity; "PRODUCTS" products which are competitive with those supplied by the Company or any Relevant Group Company in the 12 months prior to the Termination Date and with the supply of which the Executive was materially concerned at any time during the said 12 month period; "PROSPECTIVE CUSTOMER" any Person with whom the Company or any Relevant Group Company had negotiations or discussions regarding the possible supply of the Services and the Products for business use during the 12 months immediately preceding the Termination Date and with whom at any time during such period the Executive was materially concerned or had personal contact in the course of his employment; "RELEVANT GROUP COMPANY" MEANS; (i) NTL Incorporated and; (ii) any Group Company (and, if applicable, its predecessors in business) for which the NTL Incorporated and Executive performed services or in which he held office at any time during the 12 months prior to the Termination Date; "SERVICES" services which are competitive with those supplied by the Company or any Relevant Group Company in the 12 months prior to the Termination Date and with the supply of which the Executive was materially concerned at any time during the said 12 month period; "SUPPLIER" any Person who was a supplier of services or goods to the Company or Relevant Group Company in connection with business use for the operation of the business (as opposed to the administrative support of such operation) in the 12 months prior to the Termination Date and with which the Executive was materially concerned or had personal contact at any time during the said 12 month period; and "TERMINATION DATE" the date on which the employment terminates. 28.2 The Executive covenants to the Company (for itself and as trustee for each Group Company) that: 28.2.1 NON-COMPETITION the Executive shall not for a period of 12 months from the Termination Date in the Area and in competition with the Company or Relevant Group Company directly or indirectly be engaged, interested or concerned: (a) in any business which provides the Products and the Services; and (b) with the supply of the Products and the Services to any Customer or Prospective Customer. For this purpose, the Executive is concerned in a business if: (i) he carries it on as principal or agent; or (ii) he is a partner, director, employee, secondee, consultant or agent in, of or to any Person who carries on the business; or (iii) subject to clause 16 above, he has any direct or indirect financial interest (as shareholder or otherwise) in any Person who carries on the business. 28.2.2 NON-SOLICITATION the Executive shall not for a period of 12 months from the Termination Date and in competition with the Company or any Relevant Group Company directly or indirectly: (a) canvass or solicit business from, approach or endeavour to entice away any Customer or Prospective Customer in respect of the supply of the Products and the Services; (b) seek to do business or deal with any Customer or Prospective Customer in the Area in respect of the supply of the Products and the Services; (c) canvass or solicit business from, make an approach to or endeavour to entice away any Supplier of the Company or Relevant Group Company; (d) accept employment with or act as consultant for any Customer or Prospective Customer. 28.2.3 NON-POACHING the Executive shall not for a period of 12 months after the Termination Date solicit the employment or engagement of any Key Employee in a business which is in competition with the Company or any Relevant Group Company (whether or not such person would breach their contract of employment or engagement by reason of their leaving the service of the business in which they work). 28.3 The restrictions in this clause are considered by the parties to be reasonable and the validity of each sub-clause shall not be affected if any of the others is invalid. If any of the restrictions are void but would be valid if some part of the restriction were deleted, the restriction in question shall apply with such modification as may be necessary to make it valid. 28.4 The Executive acknowledges that the provisions of this clause are no more extensive than is reasonable to protect the Company or the Relevant Group Company. 28.5 If the Executive is suspended from work under the provisions of clause 25.1 or sent on Garden Leave under clause 25.2, the Company may, at its sole discretion, agree that the period of time during which the non-competition restrictions contained in clause 28.2.1 are enforceable, starts to run from the date of the suspension or date when the Executive was sent on Garden Leave, and not from the Termination Date. 28.6 The Executive acknowledges that each and every restriction contained within this clause is intended by the parties to apply after the Termination Date whether termination is lawful or otherwise. The restrictions, which are acknowledged to be ancillary in nature, will apply even where the termination results from a breach of a provision within this Agreement. 28.7 The Executive will (at the request of the Board and cost of the Company) enter into a direct agreement with any Group Company under which he will accept restrictions corresponding to the restrictions contained in this clause (or such as will be appropriate in the circumstances) in relation to such Group Company. 28.8 In the event a Change in Control occurs and the provisions of clause 24.5 apply the above periods in clause 28.2 shall apply for a period of 18 months in lieu of 12 months as set in clause 24.5 29 SEVERABILITY If any of the provisions of this Agreement become invalid or unenforceable for any reason by virtue of applicable law the remaining provisions shall continue in full force and effect and the Company and the Executive hereby undertake to use all reasonable endeavours to replace any legally invalid or unenforceable provision with a provision which will promise to the parties (as far as practicable) the same commercial results as were intended or contemplated by the original provision. 30 THIRD PARTIES Unless the right of enforcement is expressly granted, it is not intended that a third party should have the right to enforce the provisions of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999. 31 NOTICES 31.1 Any notice required or permitted to be given under this Agreement shall be given in writing delivered personally or sent by first class post pre-paid recorded delivery (air mail if overseas) or overnight courier or by facsimile to the party due to receive such notice, in the case of the Company, to: ntl Group Limited, Bartley Wood Business Park, Hook, Hampshire, RG27 9UP and marked for the attention of the Human Resources Director with a copy to: NTL Incorporated, General Counsel, at the same address and, in the case of the Executive, his address as set out in this Agreement (or such address as he may have notified to the Company in accordance with this clause). 31.2 Any notice delivered personally or by overnight courier shall be deemed to be received when delivered to the address provided in this Agreement and any notice sent by pre-paid recorded delivery post shall be deemed (in the absence of evidence of earlier receipt) to be received 2 days after posting and in proving the time of despatch it shall be sufficient to show that the envelope containing such notice was properly addressed, stamped and posted. A notice sent by facsimile shall be deemed to have been received on receipt by the sender of confirmation in the transmission report that the facsimile had been sent. 32 STATUTORY INFORMATION SCHEDULE 1 to this Agreement sets out information required to be given to the Executive by the Employment Rights Act 1996. 33 MISCELLANEOUS 33.1 This Agreement is governed by and shall be construed in accordance with the laws of England and Wales. 33.2 The parties to this Agreement submit to the exclusive jurisdiction of the English courts. 33.3 This Agreement contains the entire understanding between the parties and supersedes all previous agreements and arrangements (if any) relating to the employment of the Executive by the Company (which shall be deemed to have been terminated by mutual consent). 33.4 This Agreement may be executed by counterparts, which together shall constitute one agreement. Either party may enter into this Agreement, by executing a counterpart and this Agreement shall not take effect until it has been executed by both parties. Delivery of an executed counterpart of a signature page by facsimile shall take effect as delivery of an executed counterpart of this Agreement provided that the relevant party shall give the other the original of such page as soon as reasonably practicable thereafter. 34 CHANGES TO TERMS AND CONDITIONS The Company reserves the right to amend the Executive's terms set out within this Agreement and policies from time to time. The Executive will be given not less than four weeks notice of any such change. The Executive will be deemed to have accepted these changes should the Company have received no objection before the end of the four week period. SCHEDULE 1 Statement of Particulars Pursuant to the Employment Rights Act 1996 1 The Executive's period of continuous employment commenced on 26 September 2005. A period of employment with a previous employer does not count as part of the Executive's continuous employment with the Company. 2 The Executive will be contracted into SERPS unless the Executive opts to contract out. 3 The Company's policies and procedures on disciplinary and grievance matters are available on the Company's intranet and/or from HR (insofar as they are not varied by this Agreement). The policies constitute Company guidelines and do not form any part of the Service Agreement. Any grievance which the Executive wishes to exercise should be raised in writing with the Chief Executive Officer unless the grievance involves the Chief Executive Officer in which case the grievance should be raised in writing in the first instance with the Group Human Resources Director. Any disciplinary action taken by the Company will be dealt with by the Chief Executive Officer or such other person as may be directed by the Group Human Resources Director. The Company reserves the right to substitute persons at a senior level within the Company to conduct any aspect of the disciplinary or grievance procedure should it be appropriate. If the Executive is dissatisfied with any disciplinary decision or any decision to dismiss him (he) can within five (5) working days of that decision appeal to the Board (unless the Executive is notified in any separate communication of the person to whom he may appeal) whose decision shall be final and binding. 4 The Executive may be required to work overseas for periods when reasonably required. In such circumstances, the terms of the International Assignment Policy will apply which is available from the company upon request. 5 The Company is not a party to any collective agreement which affects the Executive's employment. SCHEDULE 2 CERTIFICATE OF COMPLIANCE I have read and understand the Code of Conduct and have complied and will continue to comply with it (together with any other Codes or policies that may apply to my role from time to time). I have not acted in any way contrary to the best interests of the Company. Any exceptions to the Code of Conduct (and any other policies) and disclosures required by the Code and such policies are set forth below: I will promptly report the details of any future non-compliance with the above-mentioned Code (and any associated policies) to my immediate manager so that its extent and significance can be considered. Dated: ----------------------- Signed: ----------------------- ----------------------- Please print name IN WITNESS whereof this Agreement has been executed as a deed and delivered on the date first above written. Executed as a Deed by ntl Group Limited acting by a director and a secretary: /s/ Robert Mackenzie Director /s/ Gill James Secretary Signed as a Deed by in the presence of: /s/ Neil Berkett -------------------------------- Witness signature: /s/ Carolyn Walker -------------------------------- Name: -------------------------------- Address: -------------------------------- -------------------------------- Occupation: --------------------------------