EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (this "Agreement"), dated as of July
19, 2004 (the "Effective Date"), by and between Telewest Global, Inc., a
Delaware corporation (the "Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive possesses skills, experience and knowledge
that are of value to the Company;
WHEREAS, the Company desires to enlist the services of the
Executive on behalf of the Company, and the Executive is willing to render
such services on the terms and conditions set forth herein; and
WHEREAS, the Company and the Executive desire to formalize the
terms of the Executive's employment pursuant to the terms and conditions of
this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Employment Term. Subject to Section 6 hereof, the Company
hereby agrees to employ the Executive, and the Executive hereby agrees to
be employed by the Company, subject to the terms and conditions of this
Agreement, for the period commencing on the Effective Date and expiring on
December 31, 2007; provided, that on January 1, 2008 and on each
anniversary of such date (each, an "Extension Date"), the Employment Term
shall be automatically extended for an additional one-year period unless
the Company or the Executive provides the other party hereto with at least
60 days' prior written notice before the next Extension Date that the
Employment Term shall not be so extended (such period of employment
hereunder, the "Employment Term").
2. Title; Duties; Place of Employment. During the Employment
Term, the Executive shall serve as President and Chief Operating Officer of
the Company or in a comparable capacity as a member of the Company's
executive team as is determined by the Board of Directors of the Company
(the "Board"). In such capacities, the Executive shall perform such
operational duties, services and responsibilities as are commensurate with
the Executive's positions, as well as such duties, services and
responsibilities on behalf of the Company and its subsidiaries and
affiliates (collectively, the "Company Affiliated Group"), in each case as
may be determined from time to time by the Board or the Chief Executive
Officer of the Company. In performing such duties hereunder, the Executive
shall report directly to the Chief Executive Officer or, at the Board's
request, directly to the Board or its designee. The Executive shall devote
the Executive's full business time, attention and skill to the performance
of the Executive's duties, services and responsibilities hereunder and
shall use the Executive's best efforts to promote the businesses and
interests of the Company Affiliated Group. The Executive's principal place
of employment shall be London, England; Woking, England; the Company's
offices in the United States; and such other locations as may be directed
by the Board or the Chief Executive Officer, in each case except for
customary business travel related to the business and activities of the
Company Affiliated Group.
3. Compensation. During the Employment Term, in full
consideration of the performance by the Executive of the Executive's
obligations hereunder to the Company and the other members of the Company
Affiliated Group, the Company shall cause the Executive to be paid the
following compensation:
(a) Base Salary. The Executive shall receive a base salary at an
annual rate of $500,000 (the "Base Salary"). The Base Salary shall be
payable in accordance with normal payroll practices in effect from time to
time, but not less than monthly. The Base Salary shall be reviewed
periodically by the Company for increase (but not decrease), and the term
"Base Salary" shall include any such increase.
(b) Annual Bonus. For each calendar year ending during the
Employment Term (pro rata for partial calendar years), the Company shall
provide the Executive with the opportunity to earn an annual incentive
bonus (the "Bonus") under the bonus plan applicable to senior management of
the Company. The bonus plan applicable to the Executive shall initially
provide for a Bonus of 50% of Base Salary for achieving "budget" levels and
100% of Base Salary for achieving targets above budget, in each case as
determined by the Board, and subject to such other terms and conditions
determined by the Board with respect to senior management of the Company.
The Bonus shall be payable in cash or in restricted stock in the discretion
of the Company. In addition, the Executive shall be in the class of key
employees eligible to receive special bonuses from time to time in the sole
discretion of the Board.
(c) Stock Options. At or as soon as practicable after the
consummation of the financial restructuring of Telewest Communications plc
(including the schemes of arrangement by Telewest Communications plc and
Telewest Finance (Jersey) Limited) (the "Restructuring"), the Executive
shall be granted options to purchase 500,000 shares of common stock of the
Company, par value $.01 per share (the "Common Stock"), pursuant to the
Stock Option Agreement attached hereto as Exhibit A.
(d) Restricted Stock. At or as soon as practicable after the
consummation of the Restructuring, the Executive shall be granted 100,000
shares of restricted Common Stock pursuant to the Restricted Stock
Agreement attached hereto as Exhibit B (or, if determined to be more
advantageous to the Executive, options to purchase 100,000 shares of Common
Stock at an exercise price of $0.01 per share pursuant to a stock option
agreement that contains the same terms, as nearly as practicable, as the
Restricted Stock Agreement).
4. Benefits.
(a) During the Employment Term, the Executive shall be entitled
to (i) participate in such employee and fringe benefit plans, policies,
programs and arrangements of the Company Affiliated Group as are made
available to similarly situated executives of the Company in effect from
time to time (the "Benefit Plans"), (ii) reimbursement for reasonable
business expenses incurred by the Executive in accordance with the
Company's expense reimbursement policy as in effect from time to time and
(iii) such other benefits as are set forth on Attachment A hereto.
(b) During each calendar year during the Employment Term (pro
rata for partial calendar years), the Executive shall also be entitled to
paid vacation in accordance with the Company's vacation policy in effect
from time to time.
5. Taxes. The Executive shall be solely responsible for taxes
imposed on the Executive by reason of any compensation and benefits
provided under this Agreement, and all such compensation and benefits shall
be subject to applicable withholding taxes; provided, however, that the
Executive shall receive tax equalization payments in respect of any period
(i) during which the Employment Term is in effect and (ii) if applicable,
following the Employment Term to the extent that the Executive is provided
with payments and benefits under this Agreement during such period, in each
case regardless of the reason of the Executive's termination of employment.
The Company shall (or shall cause one of its affiliates to) bear and be
responsible for all costs associated with the determination of any such tax
equalization payments and the preparation of any applicable documentation.
The Company shall (or shall cause one of its affiliates to) pay any such
tax equalization payments to the applicable taxing authorities not later
than the date on which such taxes are due. In the event that the Company
adopts a formal tax equalization policy, the Executive shall be entitled to
tax equalization benefits pursuant to such policy or pursuant to this
Section 5, whichever is greater.
6. Termination.
(a) The Employment Term and, unless the parties agree otherwise,
the Executive's employment with the Company shall terminate upon the
expiration of the Employment Term or upon the earlier occurrence of any of
the following events (the date of termination, the "Termination Date"):
(i) The death of the Executive.
(ii) The termination of the Executive's employment by the
Company for Cause. For purposes of this Agreement, "Cause" shall mean that
the Board has made a good faith determination, after providing the
Executive with reasonably detailed written notice, at least ten business
days to cure (other than with respect to clause (D), which shall be deemed
incurable) and a reasonable opportunity to be heard on the issues at a
Board meeting, that the Executive has engaged in any of the following:
(A) the Executive's dishonesty, willful misconduct or
gross negligence in the performance of the Executive's duties under this
Agreement;
(B) willful misrepresentation at any time by the
Executive to any member of the Company Affiliated Group;
(C) the Executive's intentional failure or refusal to
perform reasonably assigned duties;
(D) any indictment for, conviction of, or plea of
guilty or nolo contendere to, (x) any felony or (y) any crime (whether or
not a felony) involving dishonesty, fraud or breach of trust, whether of
the United States or any state thereof or any similar non-U.S. law to which
the Executive may be subject;
(E) any willful or grossly negligent failure by the
Executive to comply with any written rules, regulations, policies or
procedures of the Company furnished to the Executive which, if not complied
with, would reasonably be expected to have a material adverse effect on the
business or financial condition of the Company; or
(F) the Executive's breach of the Executive's covenants
contained in Section 8 this Agreement, and the Executive's willful breach
of the Executive's covenants contained in any other Section of this
Agreement.
(iii) The termination of the Executive's employment by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean:
(A) a material breach by the Company of this Agreement;
(B) (x) a reduction in the Executive's Base Salary or
(y) a material reduction in the Executive's employee benefits in the
aggregate, other than, in the case of clause (y), across-the-board
reductions applicable to all executives of the Company; or
(C) the Company's failure to obtain the agreement from
any successor to the Company to assume and agree to perform the Company's
obligations hereunder, except under circumstances in which such assumption
occurs by operation of law;
provided, however, that (i) the Executive must provide the Company with
notice promptly following the date on which he knows or reasonably should
know of the occurrence of any of foregoing and at least ten business days
to cure and (ii) the Executive must terminate his employment in connection
with the occurrence of any of the foregoing within thirty days following
the end of the cure period set forth in clause (i) hereof.
(iv) The termination of the Executive's employment by the
Company by reason of the Executive's Disability. For purposes of this
Agreement, "Disability" shall have the meaning under the long-term
disability plan applicable to the Executive, as in effect from time to
time, or, if no such plan is in effect, the inability of the Executive to
perform the Executive's duties, services and responsibilities hereunder by
reason of a physical or mental infirmity, as reasonably determined by the
Board, for a total of 180 days in any twelve-month period during the
Employment Term.
(v) The termination of the Executive's employment by the
Company without Cause upon at least thirty business days' written notice to
the Executive.
(vi) The termination of the Executive's employment by the
Executive for any reason upon at least sixty business days' written notice
to the Company.
(b) In the event of termination of the Executive's employment for
any reason other than death or Disability, the Executive agrees to
cooperate with the members of the Company Affiliated Group and to be
reasonably available to the members of the Company Affiliated Group with
respect to matters arising out of the Executive's employment hereunder,
whether such matters are business-related, legal or otherwise. The Company
shall cause the Executive to be reimbursed for reasonable expenses that the
Executive incurs in providing any such cooperation.
(c) Upon termination of the Executive's employment for any
reason, the Executive shall be deemed to have resigned from all positions
(as an employee, officer or director) with any member of the Company
Affiliated Group.
(d) It is acknowledged that the Executive may, during his
employment be granted rights upon the terms and subject to the conditions
of the rules from time to time of the 2004 Stock Incentive Plan or any
other profit sharing, share incentive, share option, bonus or phantom
option scheme operated by the Company or any member of the Company
Affiliated Group with respect to shares of Common Stock of the Company or
any member of the Company Affiliated Group. If, on termination of the
Executive's position with the Company, whether lawfully or in breach of
contract the Executive loses any of the rights or benefits under such
scheme (including rights or benefits which the Executive would not have
lost had he not been terminated), the Executive shall not be entitled, by
way of compensation for loss of office or otherwise howsoever, to any
compensation for the loss of any rights under any such scheme. Nothing set
forth in paragraph 6(d) should be construed at the time of the Executive's
termination as constituting a waiver of any express rights the Executive
has under the terms of this Agreement or under any incentive scheme or a
waiver of any vested rights the Executive may have under any applicable
Company welfare and benefit plan(s) or policy(s). In the event that this
Agreement expressly provides a more favorable treatment for the Executive
upon his termination of employment than under any Company welfare and
benefit plan or policy, the terms of this Agreement shall control under
such plan or policy upon such termination.
7. Termination Payments.
(a) If the Executive's employment with the Company terminates by
reason of the expiration of the Employment Term or during the Employment
Term pursuant to clauses (i), (ii), (iv) or (vi) of Section 6 of this
Agreement, the Company shall cause the Executive to be paid (x) any earned
and unpaid Base Salary as of the Termination Date, (y) reimbursement of any
unreimbursed business expenses properly incurred on or prior to the
Termination Date and (z) such other benefits to which the Executive may be
entitled as a terminated employee under the Benefit Plans (the "Accrued
Compensation").
(b) If the Executive terminates the Executive's employment during
the Employment Term for Good Reason pursuant to clause (iii) of Section 6
of this Agreement or if the Company terminates the Executive's employment
during the Employment Term without Cause pursuant to clause (v) of Section
6 of this Agreement, the Company shall cause the Executive (A) to be paid
(i) the Accrued Compensation, (ii) a severance payment equal to 100% of the
Base Salary (the payment set forth in clause (ii) hereof, the "Severance
Pay") and (iii) any Bonus as to which the applicable calendar year has been
fully completed as of the Termination Date (whether or not bonuses have
been determined in respect of such calendar year for other members of
senior management) to be paid as and when such bonuses are paid to other
members of senior management, (B) for twelve months following the
Termination Date, to continue to be provided with the health, medical,
dental, life insurance and other, similar benefits to which he was entitled
immediately prior to the Termination Date at the same costs applicable to
active employees immediately prior to the Termination Date (reduced,
however, by the same or similar coverage received from a subsequent
employer) and (C) to be provided with housing and relocation benefits as
set forth on Exhibit A hereto. The Severance Pay shall be paid in a lump
sum within ten days following the Termination Date.
(c) Notwithstanding any other provision of this Agreement, no
Severance Pay shall become due or payable under this Agreement unless and
until the Executive executes the general release of claims attached hereto
as Attachment B and such release has become irrevocable. The Severance Pay
shall constitute the exclusive payments in the nature of severance or
termination pay which shall be due to the Executive upon a termination of
employment without Cause or for Good Reason and shall be in lieu of any
other such payments under any plan, program, policy or other arrangement
which has heretofore been or shall hereafter be established by any member
of the Company Affiliated Group. The Executive shall have no obligation to
mitigate any amounts payable to the Executive under this Agreement, whether
by seeking employment or otherwise, and, except as set forth in clause (B)
of Section 7(b) hereof, the amount of any payment or benefit due the
Executive shall not be reduced or offset by any payment or benefit that the
Executive may receive from any other source.
8. Employee Covenants.
(a) Unauthorized Disclosure. The Executive agrees and understands
that in the Executive's position with the Company, the Executive has been
and will be exposed to and has and will receive information relating to the
confidential affairs of the Company Affiliated Group, including, without
limitation, technical information, intellectual property, business and
marketing plans, strategies, customer information, software, other
information concerning the products, promotions, development, financing,
expansion plans, business policies and practices of the Company Affiliated
Group and other forms of information considered by the Company Affiliated
Group to be confidential and in the nature of trade secrets (including,
without limitation, ideas, research and development, know-how, formulas,
technical data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information and business and marketing plans and
proposals) (collectively, the "Confidential Information"). The Executive
agrees that at all times during the Executive's employment with the Company
and thereafter, the Executive shall not disclose such Confidential
Information, either directly or indirectly, to any individual, corporation,
partnership, limited liability company, association, trust or other entity
or organization, including a government or political subdivision or an
agency or instrumentality thereof (each a "Person"), without the prior
written consent of the Company and shall not use or attempt to use any such
information in any manner other than in connection with the Executive's
employment with the Company, unless required by law to disclose such
information, in which case the Executive shall provide the Company with
written notice of such requirement as far in advance of such anticipated
disclosure as possible so as to enable the Company to seek an appropriate
protective order or confidential treatment. This confidentiality covenant
has no temporal, geographical or territorial restriction. Upon termination
of the Executive's employment with the Company, 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 during or prior to the Executive's
employment with the Company, and any copies thereof in the Executive's (or
capable of being reduced to the Executive's) possession.
(b) Non-Competition. By and in consideration of the Company's
entering into this Agreement and the payments to be made and benefits to be
provided by the Company hereunder, and in further consideration of the
Executive's exposure to the Confidential Information of the Company
Affiliated Group, the Executive agrees that the Executive shall not, during
the Executive's employment with the Company (whether during the Employment
Term or thereafter) and for a two-year period thereafter (the "Restriction
Period"), directly or indirectly, be, own, manage, operate, join, control,
be employed by, or participate in the ownership, management, operation or
control of, or be connected in any manner with, including, without
limitation, holding any position as a stockholder, director, officer,
consultant, independent contractor, employee, partner, or investor in, any
Restricted Enterprise (as defined below); provided, that in no event shall
ownership of one percent or less of the outstanding securities of any class
of any issuer whose securities are registered under the Securities Exchange
Act of 1934, as amended, standing alone, be prohibited by this Section
8(b), so long as the Executive does not have, or exercise, any rights to
manage or operate the business of such issuer other than rights as a
stockholder thereof. For purposes of this Section 8(b), "Restricted
Enterprise" shall mean any Person that is engaged, directly or indirectly,
in (or intends or proposes to engage in, or has been organized for the
purpose of engaging in) the provision of video or telephone services, or
related content-generation services, in the United Kingdom. During the
two-year period following the termination of the Executive's employment
with the Company, upon request of the Company, the Executive shall notify
the Company of the Executive's then-current employment status.
(c) Non-Solicitation of Employees. During the Restriction Period,
the Executive shall not directly or indirectly contact, induce or solicit
(or assist any Person to contact, induce or solicit) for employment, other
than on behalf of the Company Affiliated Group, any person who is, or
within twelve months prior to the date of such solicitation was, an
employee of any member of the Company Affiliated Group employed as a
director or in a senior executive capacity or who held managerial position
or a senior technical role and with whom the Executive had business
dealings during the course of his employment by the Company at any time
during the twelve months immediately prior to the Termination Date or whom
the Executive knew to be key to the business of any member of the Company
Affiliated Group.
(d) Non-Solicitation of Customers. During the Restriction Period,
the Executive shall not (i) contact, induce or solicit (or assist any
Person to contact, induce or solicit) any Person which has a business
relationship with any member of the Company Affiliated Group to terminate,
curtail or otherwise limit such business relationship, or (ii) solicit,
other than on behalf of the Company Affiliated Group, any Person that the
Executive knows or should have known (x) is a current customer of any
member of the Company Affiliated Group, (y) was, within twelve months prior
to the date of such solicitation, a customer of any member of the Company
Affiliated Group or (z) is a Person with respect to which the Company or
any of its affiliates has, within the twelve months prior to the date of
such solicitation, devoted more than de minimis resources in an effort to
cause such Person to become a customer of any member of the Company
Affiliated Group and in each case where the Executive had business dealings
with such Person during the course of his employment by the Company at any
time in the twelve months immediately prior to the Termination Date or whom
the Executive knew to be key to the business of any member of the Company
Affiliated Group.
(e) Proprietary Rights. The Executive shall disclose promptly to
the Company any and all inventions, discoveries, and improvements (whether
or not patentable or registrable under copyright or similar statutes), and
all patentable or copyrightable works, initiated, conceived, discovered,
reduced to practice, or made by the Executive, either alone or in
conjunction with others, during the Executive's employment with the Company
and related to the business or activities of any member of the Company
Affiliated Group (the "Developments"). Except to the extent any rights in
any Developments constitute a work made for hire under the U.S. Copyright
Act, 17 U.S.C. ss. 101 et seq. that are owned ab initio by the Company or
other members of the Company Affiliated Group (or both), the Executive
assigns all of the Executive's right, title and interest in and to all
Developments (including all intellectual property rights therein) to the
Company or its nominee without further compensation, including all rights
or benefits therefor, including, without limitation, the right to xxx and
recover for past and future infringement. The Executive acknowledges that
any rights in any developments constituting a work made for hire under the
U.S. Copyright Act, 17 U.S.C ss. 101 et seq. are owned upon creation by the
Company or other members of the Company Affiliated Group as the Executive's
employers. Whenever requested to do so by the Company, the Executive shall
execute any and all applications, assignments or other instruments which
the Company shall deem necessary to apply for and obtain trademarks,
patents or copyrights of the United States or any foreign country or
otherwise protect the interests of the Company Affiliated Group therein.
These obligations shall continue beyond the end of the Executive's
employment with the Company with respect to inventions, discoveries,
improvements or copyrightable works initiated, conceived or made by the
Executive while employed by the Company and shall be binding upon the
Executive's employers, assigns, executors, administrators and other legal
representatives. In connection with the Executive's execution of this
Agreement, the Executive has informed the Company in writing of any
interest in any inventions or intellectual property rights that the
Executive holds as of the date hereof. If the Company is unable for any
reason, after reasonable effort, to obtain the Executive's signature on any
document needed in connection with the actions described in this Section
8(f), the Executive hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as the Executive's agent and
attorney in fact to act for and in the Executive's behalf to execute,
verify and file any such documents and to do all other lawfully permitted
acts to further the purposes of this Section with the same legal force and
effect as if executed by the Executive.
(f) Remedies. The Executive agrees that any breach of the terms
of this Section 8 would result in irreparable injury and damage to the
Company for which the Company would have no adequate remedy at law; the
Executive therefore also agrees that in the event of said breach or any
threat of breach, the Company shall be entitled to an immediate injunction
and restraining order to prevent such breach, any threatened breach and any
continued breach by the Executive and any and all Persons acting for or
with the Executive, without having to prove damages, in addition to any
other remedies to which the Company may be entitled at law or in equity,
including, without limitation, the obligation of the Executive to return
the Severance Pay to the Company. The terms of this paragraph shall not
prevent the Company from pursuing any other available remedies for any
breach or threatened breach hereof, including, without limitation, the
recovery of damages from the Executive. The Executive and the Company
further agree that the covenants contained in this Section 8 are reasonable
and necessary to protect the businesses of the Company Affiliated Group
because of the Executive's access to Confidential Information and the
Executive's material participation in the operation of such businesses.
Should a court or arbitrator determine, however, that any provision this
Section 8 is unreasonable or unenforceable, either in period of time,
geographical area, or otherwise, the parties hereto agree that the covenant
should be interpreted and enforced to the maximum extent possible in
accordance with law. The existence of any claim or cause of action by the
Executive against any member of the Company Affiliated Group, whether
predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Company of the covenants contained in this
Section 8.
9. Executive's Representation. The Executive represents to the
Company that the Executive's execution and performance of this Agreement
does not violate any agreement or obligation (whether or not written) that
the Executive has with or to any person or entity including, without
limitation, any prior employer.
10. Non-Waiver of Rights. The failure of a party to enforce at
any time the provisions of this Agreement or to require at any time
performance by the other party of any of the provisions hereof shall in no
way be construed to be a waiver of such provisions or to affect either the
validity of this Agreement or any part hereof, or the right of either party
to enforce each and every provision in accordance with its terms.
11. Notices. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery, by a reputable same-day or
overnight courier service (charges prepaid), by registered or certified
mail, postage prepaid, return receipt requested or by facsimile to the
recipient with a confirmation copy to follow the next day to be delivered
by personal delivery or by a reputable same-day or overnight courier
service to:
If to the Company:
Telewest Global, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxx Xxxxxxx
Attention: Corporate Secretary
Facsimile: x000 00 00 0 000 0000
If to the Executive, at the
most recent address and
facsimile number contained in
the Company's records.
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: x000 000 000 0000
Each party shall give notice to the other party in advance of any change to
his or its address or facsimile number.
12. Data Protection. The Executive consents to the Company and
any member of the Company Affiliated Group processing data relating to him
at any time (whether before, during or after the Term) for the following
purposes:
(a) performing its obligations under the Agreement
(including remuneration, payroll, pension, insurance and other benefits,
tax and national insurance obligations);
(b) the legitimate interests of the Company and any member
of the Company Affiliated Group including any sickness policy, working time
policy, investigating acts or defaults (or alleged or suspected acts or
defaults) of the Executive, security, management forecasting or planning
and negotiations with the Executive;
(c) processing in connection with any merger, sale or
acquisition of a company or business in which the Company or any member of
the Company Affiliated Group is involved or any transfer of any business in
which the Executive performs his duties; and
(d) transferring data to countries outside the European
Economic Area for the purposes of processing by the Company in the
Company's home state.
13. Binding Effect/Assignment. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, estates, successors (including,
without limitation, by way of merger) and assigns. Notwithstanding the
provisions of the immediately preceding sentence, the Executive shall not
assign all or any portion of this Agreement without the prior written
consent of the Company. For purposes of this Agreement, the term "Company
Affiliated Group" shall be deemed to refer to each predecessor of, and
successor to, each member of the Company Affiliated Group (by merger or
otherwise), and the term "Board" shall be deemed to refer to the Board of
Directors or similar body of such predecessor or successor.
14. Entire Agreement. This Agreement, including the Exhibits
hereto, sets forth the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral, between them as to such subject matter.
15. Severability. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part,
such provision or application shall to that extent be severable and shall
not affect other provisions or applications of this Agreement.
16. Governing Law; Consent to Jurisdiction. This Agreement shall
be governed by and construed in accordance with the internal laws of the
State of Delaware, without reference to the principles of conflict of laws.
Each of the parties hereto hereby irrevocably and unconditionally consents
to submit to the exclusive jurisdiction of the courts of the United States
and the states thereof (collectively, the "Selected Courts") for any action
or proceeding relating to this Agreement, agrees not to commence any action
or proceeding relating thereto except in the Selected Courts, and waives
any forum or venue objections to the Selected Courts.
17. Modifications. No provision of this Agreement may be
modified, altered or amended except by an instrument in writing executed by
the parties hereto.
18. Tense and Headings. Whenever any words used herein are in the
singular form, they shall be construed as though they were also used in the
plural form in all cases where they would so apply. The headings contained
herein are solely for the purposes of reference, are not part of this
Agreement, and shall not in any way affect the meaning or interpretation of
this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
[signature page follows]
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Executive has
hereunto set the Executive's hand, on the day and year first above written.
TELEWEST GLOBAL, INC.
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Xxxx X. Xxxxxx By: Cob Stenham
Title: Chairman
Attachment A
Additional Benefits
1. During the Employment Term, the Executive shall be provided with (1) a
housing allowance of (pound)1,875 per week; (2) a car allowance of
(pound)550 per month; (3) an education allowance for the Executive's
children of (pound)16,000 per year (subject to verification). In
addition, two times per calendar year during the Employment Term, the
Executive and his immediate family shall be provided with two
round-trip, business-class tickets to the United States. The housing
allowance shall continue to be provided for three months following the
Executive's termination of employment (other than for Cause).
2. During the period that the Executive provides services in the United
Kingdom prior to locating suitable housing, the Executive shall be
provided with temporary living expenses as agreed to with the Chief
Executive Officer or the Board. During any period that the Executive
is receiving such temporary living expenses, the Executive shall not
receive the housing allowance referred to in paragraph 1 above.
3. The Company shall (or shall cause one of its affiliates to) pay the
reasonable costs of relocating the Executive, his immediate family and
their possessions to the United Kingdom. If the Executive sells his
home in Miami during the Employment Term and within 18 months of the
Effective Date, the Company shall pay the cost of brokers' fees and
closing costs incurred by the Executive in connection with such sale.
4. The Company shall (or shall cause one of its affiliates to) bear the
cost of one house-hunting trip in connection with the Executive's
commencement of employment with the Company.
5. The Company shall (or shall cause one of its affiliates to) bear the
cost of obtaining the Executive's work permit.
6. Upon the Executive's termination of employment (other than for Cause),
the Company shall (or shall cause one of its affiliates to) bear the
cost of relocating the Executive, his immediate family and their
possessions to a location in the United States selected by the
Executive, so long as such relocation occurs within 6 months of the
Termination Date.
(To the maximum extent possible, the Company shall (or shall cause one of
its affiliates to) pay the costs of the foregoing benefits directly, rather
than through reimbursement of, or advancement of expenses to, the
Executive.)
Attachment B
GENERAL RELEASE
1. General Release.
In consideration of the payments and benefits (the "Severance
Payments") to be received by Xxxx X. Xxxxxx (the "Employee") pursuant to
the Employment Agreement to which he and Telewest Global, Inc. are parties,
dated as of July 19, 2004 (the "Employment Agreement"), the sufficiency of
which the Employee acknowledges, the Employee, with the intention of
binding himself and his heirs, executors, administrators and assigns, does
hereby release, remise, acquit and forever discharge Telewest Global, Inc.
(the "Company") and each of its subsidiaries and affiliates (the "Company
Affiliated Group"), their present and former officers, directors,
shareholders, executives, agents, attorneys, employees and employee benefit
plans (and the fiduciaries thereof), and the successors, predecessors and
assigns of each of the foregoing (collectively, the "Company Released
Parties"), of and from any and all claims, actions, causes of action,
complaints, charges, demands, rights, damages, debts, sums of money,
accounts, financial obligations, suits, expenses, attorneys' fees and
liabilities of whatever kind or nature in law, equity or otherwise, whether
accrued, absolute, contingent, unliquidated or otherwise and whether now
known or unknown, suspected or unsuspected, which the Employee,
individually or as a member of a class, now has, owns or holds, or has at
any time heretofore had, owned or held, against any Company Released Party
in any capacity, including, without limitation, any and all claims (i)
arising out of or in any way connected with the Employee's service to any
member of the Company Affiliated Group (or the predecessors thereof) in any
capacity, or the termination of such service in any such capacity, (ii) for
severance or vacation benefits, unpaid wages, salary or incentive payments,
(iii) for breach of contract, wrongful discharge, impairment of economic
opportunity, defamation, intentional infliction of emotional harm or other
tort, (iv) for any violation of applicable state and local labor and
employment laws (including, without limitation, all laws concerning
unlawful and unfair labor and employment practices) and (v) for employment
discrimination under any applicable federal, state or local statute,
provision, order or regulation, and including, without limitation, any
claim under Title VII of the Civil Rights Act of 1964 ("Title VII"), the
Civil Rights Act of 1988, the Fair Labor Standards Act, the Americans with
Disabilities Act ("ADA"), the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), the Age Discrimination in Employment Act
("ADEA") and any similar or analogous state or local statute, excepting
only:
(A) rights of the Employee under this Release of Claims and under the
Employment Agreement;
(B) rights of the Employee relating to stock options and restricted
stock held by the Employee as of the date of his or her
termination of employment (the "Termination Date");
(C) the right of the Employee to receive COBRA continuation coverage
in accordance with applicable law;
(D) rights to indemnification the Employee may have (i) under
applicable corporate law, (ii) under the by-laws or certificate
of incorporation of any Company Released Party or (iii) as an
insured under any director's and officer's liability insurance
policy now or previously in force;
(E) claims (i) for benefits under any health, disability, retirement,
life insurance or other, similar employee benefit plan (within
the meaning of Section 3(3) of ERISA) of the Company Affiliated
Group and (ii) for earned but unused vacation pay through the
Termination Date in accordance with applicable policy of the
Company Affiliated Group; and
(F) claims for the reimbursement of unreimbursed business expenses
incurred prior to the Termination Date pursuant to applicable
policy of the Company Affiliated Group.
2. No Admissions. The Employee acknowledges and agrees that this General
Release is not to be construed in any way as an admission of any liability
whatsoever by any Company Released Party, any such liability being
expressly denied.
3. Application to All Forms of Relief. This General Release applies to any
relief no matter how called, including, without limitation, wages, back
pay, front pay, compensatory damages, liquidated damages, punitive damages,
damages for pain or suffering, costs, and attorney's fees and expenses.
4. Specific Waiver. The Employee specifically acknowledges that his
acceptance of the terms of this General Release is, among other things, a
specific waiver of his rights, claims and causes of action under Title VII,
ADEA, ADA and any state or local law or regulation in respect of
discrimination of any kind; provided, however, that nothing herein shall be
deemed, nor does anything contained herein purport, to be a waiver of any
right or claim or cause of action which by law the Employee is not
permitted to waive.
5. Payment of Severance Payment. The Employee shall have a period of 21
days following the Termination Date to consider whether to execute this
General Release. If the Employee accepts the terms hereof and executes this
General Release prior to the expiration of such 21-day period, he may
thereafter, for a period of 7 days following (and not including) the date
of execution, revoke this General Release. If no such revocation occurs,
this General Release shall become irrevocable in its entirety, and binding
and enforceable against the Employee, on the day next following the day on
which the foregoing seven-day period has elapsed.
6. No Complaints or Other Claims. The Employee acknowledges and agrees that
he has not, with respect to any transaction or state of facts existing
prior to the date hereof, filed any complaints, charges or lawsuits against
any Company Released Party with any governmental agency, court or tribunal.
7. Effect of Invalidity of Release. In addition to any other remedy
available to the Company hereunder, in the event that this General Release
becomes null and void or is otherwise determined not to be enforceable by
the Company for any reason, then (i) the Company shall cease to have any
obligation to pay any unpaid portion of the Severance Payment and (ii) the
Employee shall promptly repay to the Company any portion of the Severance
Payment that has been paid to him.
8. Return of Property and Information. The Employee agrees to return to the
Company all documents, files, and other property and information of any
kind belonging to any member of the Company Affiliated Group not later than
the Termination Date.
9. Non-disparagement. From and after the Termination Date, the Employee
shall not make or publish any disparaging statements (whether written or
oral) regarding any member of the Company Affiliated Group or the
affiliates, directors, officers or employees of any of them, and the
Company shall not, and shall use reasonable efforts to cause its directors
and officers to not, make or publish any disparaging statements (whether
written or oral) regarding the Employee.
10. Governing Law. Except for issues or matters as to which federal law is
applicable, this General Release shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without
giving effect to the conflicts of law principles thereof.
IN WITNESS WHEREOF, this General Release has been signed by or on behalf of
each of the parties, all as of the date first above written.
TELEWEST GLOBAL, INC.
______________________________ ________________________________
Xxxx X. Xxxxxx
By: ____________________________
Dated: _______________________ Its: ___________________________
Dated: _________________________
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 19th day of July,
2004 (the "Effective Date"), between Telewest Global, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive and the Company have entered into an Employment
Agreement, dated as of July 19, 2004 (the "Employment Agreement");
WHEREAS, on the Effective Date, Telewest Communications plc
consummated a financial restructuring, as a result of which Telewest
Communications plc and its affiliates (other than the Company) have become
subsidiaries of the Company;
WHEREAS, the Company has adopted the Telewest Global, Inc. 2004 Stock
Incentive Plan (the "Plan") in order to grant equity compensation to (among
others) officers and employees of the Company and its Subsidiary
Corporations; and
WHEREAS, as provided in Section 3(c) of the Employment Agreement, the
Company's Compensation Committee has determined to grant an Option to the
Executive as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
The Company hereby grants to the Executive the right and option (the
"Option") to purchase all or any part of an aggregate of 500,000 whole
Shares subject to, and in accordance with, the terms and conditions set
forth in this Agreement and in the Plan. The Option is not intended to
qualify as an Incentive Stock Option. Capitalized terms used but not
defined herein shall have the meanings set forth in the Plan.
2. Purchase Price.
The price at which the Executive shall be entitled to purchase Shares
upon the exercise of the Option shall be $13.70 per Share (the "Option
Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten years from the Effective Date (the
"Term"); provided, however, that the Option may terminate earlier as
provided in Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to Sections 4.2 and 6 hereof and to the Plan, the
Option shall become exercisable as follows:
(i) as to 100,000 Shares subject to the Option as of the
Effective Date; and
(ii) as to 80,000 Shares subject to the Option on the first
anniversary of the Effective Date, subject to the
satisfaction of performance goals applicable to all
similarly situated senior management of the Company in
respect of the period beginning on the Effective Date and
ending on the first anniversary of the Effective Date;
(iii) as to 80,000 Shares subject to the Option on the second
anniversary of the Effective Date, subject to the
satisfaction of performance goals applicable to all
similarly situated senior management of the Company in
respect of the period beginning on the first anniversary of
the Effective Date and ending on the second anniversary of
the Effective Date;
(iv) as to 80,000 Shares subject to the Option on the third
anniversary of the Effective Date, subject to the
satisfaction of performance goals applicable to all
similarly situated senior management of the Company in
respect of the period beginning on the second anniversary of
the Effective Date and ending on the third anniversary of
the Effective Date;
(v) as to 80,000 Shares subject to the Option on the fourth
anniversary of the Effective Date, subject to the
satisfaction of performance goals applicable to all
similarly situated senior management of the Company in
respect of the period beginning on the third anniversary of
the Effective Date and ending on the fourth anniversary of
the Effective Date; and
(vi) as to 80,000 Shares subject to the Option on the fifth
anniversary of the Effective Date, subject to the
satisfaction of performance goals applicable to all
similarly situated senior management of the Company in
respect of the period beginning on the fourth anniversary of
the Effective Date and ending on the fifth anniversary of
the Effective Date;
provided, however, that in the event that any portion of the Option subject
to any of clauses (ii) through (vi) of this Section 4.1 does not become
exercisable during the period set forth therein, such portion of the Option
shall be carried forward for vesting during future one-year periods
commencing immediately following the fifth anniversary of the Effective
Date subject to the satisfaction of performance goals applicable to all
similarly situated senior management of the Company in respect of such
one-year periods; provided, further, that no more than 80,000 Shares
subject to the Option shall become exercisable in any one-year period by
reason of application of clauses (ii) through (vi) of this Agreement or the
foregoing proviso (by way of example, if the 80,000 Shares subject to the
Option subject to clause (ii) of this Section 4.1 does not become
exercisable on the first anniversary of the Effective Date, such portion of
the Option shall become exercisable on the sixth anniversary of the
Effective Date, subject to the satisfaction of performance goals applicable
to all similarly situated senior management of the Company in respect of
the period beginning on the fifth anniversary of the Effective Date and
ending on the sixth anniversary of the Effective Date); and provided,
further, that, notwithstanding any provision of this Section 4.1 to the
contrary, any unvested portion of the Option that is outstanding as of
January 18, 2011 shall vest on that date.
4.2 Upon the occurrence of an Acceleration Event, 50% of the
unvested portion of the Option shall immediately vest and become fully
exercisable. Notwithstanding any provision to the contrary set forth in the
Plan, the remaining unvested portion of the Option after application of the
immediately preceding sentence shall not vest or become exercisable in the
event of an Acceleration Event if, in connection with such Acceleration
Event, the Company, a successor to the Company or the ultimate parent of
the Company or such successor following such Acceleration Event offers to
continue the employment of the Executive and to provide compensation and
employee benefits that are substantially similar, as nearly as practicable,
to the compensation and employee benefits set forth in the Employment
Agreement (in each case excluding equity compensation). If such an offer is
not made to the Executive, such remaining unvested portion of the Option
shall become immediately and fully vested and exercisable.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Option may be exercised by delivery of written notice to the
Company at its principal executive office. Such notice shall state that the
Executive is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the
person or persons exercising the Option. If requested by the Committee,
such person or persons shall (i) deliver this Agreement to the Secretary of
the Company who shall endorse on this Agreement a notation of such exercise
and (ii) provide satisfactory proof as to the right of such person or
persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full purchase price for the Shares in respect of which
the Option is being exercised, in cash or by check or, if indicated in the
notice, such payment shall follow by check from a registered broker acting
as agent on behalf of the Executive.
5.3 Upon receipt of notice of exercise, full payment for the
Shares in respect of which the Option is being exercised, and full
satisfaction of the Executive's obligation for Withholding Taxes (as
hereinafter defined), the Company shall take such action as may be
necessary to effect the transfer to the Executive of the number of Shares
subject to such exercise.
5.4 The Executive shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Executive shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Executive, and (iii) the Executive's name shall have been entered as a
stockholder of record on the books of the Company, whereupon the Executive
shall have full voting and other ownership rights with respect to such
Shares.
6. Termination of Employment.
6.1 Upon termination of the Executive's employment for any
reason, any portion of the Option which is not exercisable as of the date
of such termination shall be automatically forfeited as of the date of such
termination. Upon termination of the Executive's employment by the Company
for Cause (as defined in the Employment Agreement), any unexercised portion
of the Option (whether exercisable or not exercisable) shall be
automatically forfeited as of the date of such termination.
6.2 Upon termination of the Executive's employment for any reason
other than by the Company for Cause (as defined in the Employment
Agreement), the portion of the Option that is exercisable as of the date of
such termination shall remain exercisable until the six-month anniversary
of the date of such termination (but not beyond the end of the Term);
provided, however, that any portion of the Option that has become
exercisable pursuant to Section 4.2 of the Agreement by reason of an
Acceleration Event shall remain exercisable for one year following the date
of such termination (but not beyond the end of the Term).
7. Non-transferability.
The Option shall not be transferable other than by will or the
laws of descent and distribution or pursuant to a qualified domestic
relations order (within the meaning of Rule 16a-12 promulgated under the
Exchange Act). During the lifetime of the Executive, the Option shall be
exercisable only by the Executive or his or her legal guardian or legal
representatives.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Executive any right with respect to
continuance of employment by the Company or any Subsidiary Corporation, nor
shall this Agreement or the Plan interfere in any way with the right of the
Company or any such Subsidiary Corporation to terminate the Executive's
employment at any time.
9. Withholding of Taxes.
The Company shall have the right to deduct from any payment of cash to
the Executive an amount equal to the federal, state, local and non-U.S.
income taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to the exercise or other settlement
of the Option. The Executive shall make arrangements satisfactory to the
Company to pay the Withholding Taxes to the Company prior to the issuance
of any Shares subject to the Option or other payment or distribution made
pursuant to the Option.
10. Executive Bound by the Plan.
The Executive hereby acknowledges receipt of a copy of the Plan and
agrees that he and the Option shall be bound by all the terms and
provisions thereof.
11. Modification of Agreement.
This Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written instrument
executed by the parties hereto.
12. Severability.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
13. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
14. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Executive's heirs, executors, administrators and successors. All
obligations imposed upon the Executive and all rights granted to the
Company under this Agreement shall be final, binding and conclusive upon
the Executive's heirs, executors, administrators and successors.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Agreement,
effective as of the Effective Date.
TELEWEST GLOBAL, INC.
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Xxxx X. Xxxxxx By: Cob Stenham
Its: Chairman
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), made as of the 19th day of July,
2004 (the "Effective Date"), between Telewest Global, Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Executive and the Company have entered into an Employment
Agreement, dated as of July 19, 2004 (the "Employment Agreement");
WHEREAS, on the Effective Date, Telewest Communications plc
consummated a financial restructuring, as a result of which Telewest
Communications plc and its affiliates (other than the Company) have become
subsidiaries of the Company;
WHEREAS, the Company has adopted the Telewest Global, Inc. 2004 Stock
Incentive Plan (the "Plan") in order to grant equity compensation to (among
others) officers and employees of the Company and its Subsidiary
Corporations; and
WHEREAS, as provided in Section 3(c) of the Employment Agreement, the
Company's Compensation Committee has determined to grant an Option to the
Executive as provided herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
The Company hereby grants to the Executive the right and option (the
"Option") to purchase all or any part of an aggregate of 100,000 whole
Shares subject to, and in accordance with, the terms and conditions set
forth in this Agreement and in the Plan. The Option is not intended to
qualify as an Incentive Stock Option. Capitalized terms used but not
defined herein shall have the meanings set forth in the Plan.
2. Purchase Price.
The price at which the Executive shall be entitled to purchase Shares
upon the exercise of the Option shall be $0.01 per Share (the "Option
Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the manner
provided herein for a period of ten years from the Effective Date (the
"Term"); provided, however, that the Option may terminate earlier as
provided in Section 6 hereof.
4. Exercisability of Option.
4.1 Subject to Sections 4.2 and 6 hereof and to the Plan, the
Option shall become exercisable as follows:
(vii) as to 25,000 Shares subject to the Option as of December
31, 2004;
(viii) as to 25,000 Shares subject to the Option on the first
anniversary of the Effective Date, subject to the satisfaction of
performance goals applicable to all similarly situated senior management of
the Company in respect of the period beginning on the Effective Date and
ending on the first anniversary of the Effective Date;
(ix) as to 25,000 Shares subject to the Option on the second
anniversary of the Effective Date, subject to the satisfaction of
performance goals applicable to all similarly situated senior management of
the Company in respect of the period beginning on the first anniversary of
the Effective Date and ending on the second anniversary of the Effective
Date; and
(x) as to 25,000 Shares subject to the Option on the third
anniversary of the Effective Date, subject to the satisfaction of
performance goals applicable to all similarly situated senior management of
the Company in respect of the period beginning on the second anniversary of
the Effective Date and ending on the third anniversary of the Effective
Date;
provided, however, that in the event that any portion of the Option subject
to any of clauses (ii) through (iv) of this Section 4.1 does not become
exercisable during the period set forth therein, such portion of the Option
shall be carried forward for vesting during future one-year periods
commencing immediately following the third anniversary of the Effective
Date subject to the satisfaction of performance goals applicable to all
similarly situated senior management of the Company in respect of such
one-year periods; provided, further, that no more than 25,000 Shares
subject to the Option shall become exercisable in any one-year period by
reason of application of clauses (ii) through (iv) of this Agreement or the
foregoing proviso (by way of example, if the 25,000 Shares subject to the
Option subject to clause (ii) of this Section 4.1 does not become
exercisable on the first anniversary of the Effective Date, such portion of
the Option shall become exercisable on the fourth anniversary of the
Effective Date, subject to the satisfaction of performance goals applicable
to all similarly situated senior management of the Company in respect of
the period beginning on the third anniversary of the Effective Date and
ending on the fourth anniversary of the Effective Date); and provided,
further, that, notwithstanding any provision of this Section 4.1 to the
contrary, any unvested portion of the Option that is outstanding as of
January 18, 2011 shall become exercisable on that date. Each date on which
all or any portion of the Option becomes exercisable is referred to herein
as a "Vesting Date."
4.2 Upon the occurrence of an Acceleration Event, 50% of the
unvested portion of the Option shall immediately vest and become fully
exercisable. Notwithstanding any provision to the contrary set forth in the
Plan, the remaining unvested portion of the Option after application of the
immediately preceding sentence shall not vest or become exercisable in the
event of an Acceleration Event if, in connection with such Acceleration
Event, the Company, a successor to the Company or the ultimate parent of
the Company or such successor following such Acceleration Event offers to
continue the employment of the Executive and to provide compensation and
employee benefits that are substantially similar, as nearly as practicable,
to the compensation and employee benefits set forth in the Employment
Agreement (in each case excluding equity compensation). If such an offer is
not made to the Executive, such remaining unvested portion of the Option
shall become immediately and fully vested and exercisable.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and the
Plan, the Option may be exercised by delivery of written notice to the
Company at its principal executive office. Such notice shall state that the
Executive is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the
person or persons exercising the Option. If requested by the Committee,
such person or persons shall (i) deliver this Agreement to the Secretary of
the Company who shall endorse on this Agreement a notation of such exercise
and (ii) provide satisfactory proof as to the right of such person or
persons to exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full purchase price for the Shares in respect of which
the Option is being exercised, in cash or by check or, if indicated in the
notice, such payment shall follow by check from a registered broker acting
as agent on behalf of the Executive.
5.3 Upon receipt of notice of exercise, full payment for the
Shares in respect of which the Option is being exercised, and full
satisfaction of the Executive's obligation for Withholding Taxes (as
hereinafter defined), the Company shall take such action as may be
necessary to effect the transfer of the number of Shares subject to such
exercise in the name of the Executive either to the Executive or to the
Escrow Account (as hereinafter defined) pursuant to Section 5.5 hereof
(whichever is applicable).
5.4 The Executive shall not be deemed to be the holder of, or to
have any of the rights of a holder with respect to, any Shares subject to
the Option until (i) the Option shall have been exercised pursuant to the
terms of this Agreement and the Executive shall have paid the full purchase
price for the number of Shares in respect of which the Option was
exercised, (ii) the Company shall have issued and delivered the Shares to
the Executive or to the Escrow Account (whichever is applicable), and (iii)
the Executive's name shall have been entered as a stockholder of record on
the books of the Company, whereupon the Executive shall, subject to Section
5.5 hereof (if applicable), have full voting and other ownership rights
with respect to such Shares.
5.5 Escrow of Shares.
(a) If any portion of the Option is exercised prior to the
earlier of (i) the one-year anniversary of the final Vesting Date and (ii)
the date of the Executive's termination of employment (the earlier of (i)
and (ii), the "Release Date"), then the certificates representing the
Shares subject to such exercised portion of the Option shall be issued and
held by the Company in escrow (the "Escrow Account") and shall remain in
the custody of the Company until the Release Date; provided, that in
connection with the exercise of any portion of the Option, the Company
shall deliver to the Executive a number of Shares subject to such exercised
portion of the Option with a value equal to the Withholding Tax
requirements, if any (the "Withholding Shares") and the remaining portion
of such Shares shall be issued and held by the Company in the Escrow
Account. As soon as practicable after the Release Date, any Shares held in
the Escrow Account shall be delivered to the Executive or the Executive's
estate, subject to the delivery of any documents which the Company in its
discretion may require as a condition to the issuance of Shares, and so
long as the Executive has satisfied all applicable Withholding Tax
requirements with respect to such Shares, and such Shares so delivered
shall not contain the legend set forth in Section 5.5(c) hereof.
(b) Subject to the remainder of this Section 5.5(b), the
Executive shall be entitled, at all times on and after the date that the
Shares are issued pursuant to this Agreement, to exercise all the rights of
a stockholder with respect to such Shares, including the right to vote such
Shares and the right to receive dividends thereon. Notwithstanding the
foregoing, except with respect to the Withholding Shares, prior to the
Release Date, the Executive shall not be entitled to transfer, sell,
pledge, hypothecate, assign, or otherwise dispose of or encumber, the
Shares held in the Escrow Account while they are so held in the Escrow
Account. In addition, all dividends declared and paid by the Company on the
Shares held in the Escrow Account shall be deferred until the Release Date.
Any such deferred dividends shall be held by the Company for the account of
the Executive. Upon the Release Date, such deferred dividends shall be paid
to the Executive (without interest). The Company may require that the
Executive invest any such deferred dividends in additional Shares.
(c) Prior to the Release Date (or such earlier date that is
applicable to the Withholding Shares), each stock certificate issued
pursuant to this Agreement shall bear a legend in substantially the
following form:
"This certificate and the shares of stock represented hereby
are subject to the terms and conditions (including
restrictions against transfer) contained in the Nonqualified
Stock Option Agreement (the "Agreement") between the
registered owner of the shares represented hereby and the
Company. Release from such terms and conditions shall be
made only in accordance with the provisions of the
Agreement, a copy of which is on file in the office of the
Secretary of Telewest Global, Inc."
6. Termination of Employment.
6.1 Upon termination of the Executive's employment for any
reason, any portion of the Option which is not exercisable as of the date
of such termination shall be automatically forfeited as of the date of such
termination. Upon termination of the Executive's employment by the Company
for Cause (as defined in the Employment Agreement), any unexercised portion
of the Option (whether exercisable or not exercisable) shall be
automatically forfeited as of the date of such termination.
6.2 Upon termination of the Executive's employment for any reason
other than by the Company for Cause (as defined in the Employment
Agreement), the portion of the Option that is exercisable as of the date of
such termination shall remain exercisable until the six-month anniversary
of the date of such termination (but not beyond the end of the Term);
provided, however, that any portion of the Option that has become
exercisable pursuant to Section 4.2 of the Agreement by reason of an
Acceleration Event shall remain exercisable for one year following the date
of such termination (but not beyond the end of the Term).
7. Non-transferability.
The Option shall not be transferable other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order (within the meaning of Rule 16a-12 promulgated under the Exchange
Act). During the lifetime of the Executive, the Option shall be exercisable
only by the Executive or his or her legal guardian or legal
representatives.
8. No Right to Continued Employment.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Executive any right with respect to
continuance of employment by the Company or any Subsidiary Corporation, nor
shall this Agreement or the Plan interfere in any way with the right of the
Company or any such Subsidiary Corporation to terminate the Executive's
employment at any time.
9. Withholding of Taxes.
The Company shall have the right to deduct from any payment of cash to
the Executive an amount equal to the federal, state, local and non-U.S.
income taxes and other amounts as may be required by law to be withheld
(the "Withholding Taxes") with respect to the exercise or other settlement
of the Option. The Executive shall make arrangements satisfactory to the
Company to pay the Withholding Taxes to the Company prior to the issuance
of any Shares subject to the Option or other payment or distribution made
pursuant to the Option.
10. Executive Bound by the Plan.
The Executive hereby acknowledges receipt of a copy of the Plan and
agrees that he and the Option shall be bound by all the terms and
provisions thereof.
11. Modification of Agreement.
This Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written instrument
executed by the parties hereto.
12. Severability.
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
13. Governing Law.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without
giving effect to the conflicts of laws principles thereof.
14. Successors in Interest.
This Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit of the
Executive's heirs, executors, administrators and successors. All
obligations imposed upon the Executive and all rights granted to the
Company under this Agreement shall be final, binding and conclusive upon
the Executive's heirs, executors, administrators and successors.
[signature page follows]
IN WITNESS WHEREOF, the parties have entered into this Agreement,
effective as of the Effective Date.
TELEWEST GLOBAL, INC.
TELEWEST GLOBAL, INC.
/s/ Xxxx X. Xxxxxx /s/ Xxxxxxx Xxxxxxx
-------------------------------- ---------------------------------
Xxxx X. Xxxxxx By: Cob Stenham
Its: Chairman
