Severance Agreement between NTL Incorporated and Richard J. Lubasch (June 2003)
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Summary
This agreement is between NTL Incorporated and Richard J. Lubasch, outlining the terms for ending Mr. Lubasch’s employment on August 15, 2003. It specifies that he will continue to receive his salary and benefits until that date, and details the severance payments and benefits he will receive if he signs a release and does not revoke it. The agreement also covers bonus eligibility, payment terms, and continuation of certain benefits, aiming to fully settle all employment-related matters between the parties.
EX-10.24 17 y89596exv10w24.txt EXHIBIT 10.24 EXHIBIT 10.24 EXECUTION COPY SEVERANCE AGREEMENT This Severance Agreement ("Agreement") is entered into between Richard J. Lubasch (the "Executive") and NTL Incorporated (the "Company") as of June ___, 2003. W I T N E S S E T H WHEREAS, the Executive is currently employed by the Company pursuant to an employment agreement, dated November 7, 2002, that is attached hereto as Exhibit A (the "Employment Agreement"); WHEREAS, the Company and the Executive agree that the Executive's employment will terminate on August 15, 2003 (the "Termination Date"); WHEREAS, the Executive and the Company wish to outline the terms and conditions of a termination of the Executive's employment on the Termination Date, so that the Executive and the Company can settle, fully and finally, all matters between them; and NOW THEREFORE, the Executive and the Company, intending to be legally bound, hereby agree as follows: 1. EFFECTIVENESS. This Agreement will become effective as of the date hereof; provided that if the Executive either does not sign the release attached hereto as Exhibit B (the "Release") on, or within the eight calendar days prior to, the Termination Date, or revokes the Executive's consent to the Release under Paragraph 4(b) of the Release within the seven calendar days following the signing of the Release, the Company shall not be obligated to make the payments sets forth in Paragraphs 2(b), 2(d) and 2(e) of this Agreement. Provided that the Executive does not revoke the Executive's consent to the Release, the term "Payment Date" will mean the eighth calendar day after the date on which the Executive signs the Release. 2. TERMINATION OF EMPLOYMENT; SEVERANCE. (a) The Company agrees that, unless earlier terminated as provided herein, the Company shall continue to employ the Executive at the Executive's current location, to pay the Executive's "Base Salary" (as defined in the Employment Agreement) at the rate in effect as of the date of this Agreement, to reimburse the Executive for all reasonable business expenses, incurred in connection with the Executive's duties, pursuant to the Company's policies, and to allow the Executive to participate in the Company's benefit programs until the Termination Date, upon which date the Executive's employment with the Company and its affiliates shall cease; provided, however, that nothing herein shall impair the Company's right to terminate the Executive's employment for "Cause" (as defined in the Employment Agreement and modified herein) prior to the Termination Date or the Executive's right to terminate the Executive's employment for a "Constructive Termination Without Cause" (as defined in the Employment Agreement and modified herein). As of the date of this Agreement, the Company is not aware of any events, omissions or circumstances, individually or in the aggregate, constituting Cause under the Employment Agreement with respect to the Executive. The 1 Executive acknowledges and agrees that (i) the Executive is not aware of any events, omissions or circumstances that have occurred on or prior to the date of this Agreement which, individually or in the aggregate, constitute a "Constructive Termination Without Cause" under the Employment Agreement and (ii) no diminution of the Executive's title, position, duties or authorities which may occur following the date of this Agreement shall, individually or in the aggregate, constitute a Constructive Termination Without Cause if such diminution occurs as a result of the transitioning of the Executive's title, position, duties or authorities to a successor. Further, the Executive's failure to perform duties which are inconsistent with the Executive's title, position, duties or authorities as set forth in the Employment Agreement shall not constitute Cause; provided, however, that the Executive acknowledges and agrees that the transitioning of the Executive's title, position, duties or authorities to a successor is not inconsistent with the Executive's title, position, duties or authorities as set forth in the Employment Agreement. (b) The Company acknowledges that the Executive is a participant in the Company's annual bonus program (the "Bonus Plan"). Exhibit C hereto sets forth the performance goals under the Bonus Plan applicable to the period commencing January 1, 2003 and ending June 30, 2003 and the potential amounts that may become payable to the Executive based on the extent to which such performance goals are achieved. The Company shall use commercially reasonable efforts to determine, prior to the Payment Date, the extent to which the Company has achieved such performance goals. In the event that such efforts fail, the Company will make such determination as soon thereafter as practicable. The date upon which the Company makes such determination is the "Bonus Determination Date." In the event that, pursuant to the terns of the Bonus Plan, the Executive becomes entitled to a payment in respect of the six-month period ending June 30, 2003, the Company shall pay such amount to the Executive on the "Bonus Payment Date." The Bonus Payment Date shall be the later of the Payment Date or ten business days following the Bonus Determination Date. The Executive hereby waives any right to a bonus of any kind relating to the period between July 1, 2003 and the Termination Date. Such bonus shall be paid as follows: (i) one-half in cash and (ii) one-half in shares of Company common stock having a "Fair Market Value" (as defined below) equal to one-half of such bonus. The Company shall issue, on the Bonus Payment Date, an instruction to the Company's transfer agent, authorizing such transfer agent to deliver immediately such shares to the Executive. For purposes of the foregoing, "Fair Market Value" shall mean the closing price of the Company's common stock as quoted on the NASDAQ Stock Market quotation system on the last business day prior to the Bonus Payment Date. (c) Upon any termination of the Executive's employment with the Company and its affiliates, the Company shall pay to the Executive (or the Executive's estate, if applicable) any earned but unpaid portion of the Executive's Base Salary, any unpaid business expenses incurred prior to the termination of employment in accordance with Company policy, vacation pay as determined and calculated by Paragraph 8 of this Agreement, and any benefits that may be due to the Executive (or the Executive's estate, if applicable) under any employee benefit plans of the Company including benefits which may become payable upon a termination of the Executive's employment by reason of the Executive's death or because the Executive has become "Disabled" (as defined in the Employment Agreement). 2 (d) If the Executive is employed through the Termination Date or if, prior to the Termination Date, the Company terminates the Executive's employment other than for "Cause" (as defined in the Employment Agreement and modified herein) or a "Constructive Termination Without Cause" (as defined in the Employment Agreement and modified herein) occurs, the Company shall (i) pay to the Executive on the Payment Date any Base Salary earned, or which would have been earned, through the Termination Date; (ii) pay to the Executive on the Payment Date a lump sum cash payment equal to three times the Executive's Base Salary; (iii) at the Executive's election (which the Executive must make on or prior to August l, 2003), and in satisfaction of the Company's obligations, if any, under the statutory scheme commonly known as "COBRA," either (x) provide continued medical benefits covering the Executive and the Executive's qualifying dependents under the Company's Group health plan currently covering employees resident in the Company's New York office (the "Group Health Plan"), with the Company to pay for such coverage for the period commencing August 16, 2003 through August 15, 2004 and the Executive to pay for such coverage from August 16, 2004 through February 15, 2005; provided, however, that in the event that the Company's insurance carrier terminates such coverage, the Company agrees to pay to the Executive a pro rata portion of the Cash Payment Option (as defined below) from the date upon which the insurance carrier terminates such coverage through August 15, 2004; or (y) pay on the Payment Date an amount in cash equal to the sum of (1) the total annual premium, as in effect on the date of execution of this Agreement, payable with respect to the Executive's current medical benefits coverage (including coverage with respect to the Executive's qualifying dependents) under the Group Health Plan plus (2) an amount equal to fifty percent (50%) of the amount described under clause (1) above (the "Cash Payment Option"); and (iv) furnish to the escrow agent specified in that certain escrow agreement, dated January 20, 2003, among the Company and certain Company executives, including the Executive (the "Escrow Agreement"), an instruction in the form attached hereto as Exhibit D on the Payment Date; provided, however, that, in the event of the Executive's death prior to the date on which such shares are released, such shares shall be issued to the Executive's beneficiary or estate, as applicable. (e) In the event that, prior to the Termination Date, the Executive terminates the Executive's employment with the Company and its affiliates for any reason, in addition to any other payments or benefits to which the Executive is entitled under Company benefit plans or otherwise, the Executive and the Executive's qualified dependants shall be entitled to the benefits set forth in Paragraph 2(d)(iii) of this Agreement. In the event that, prior to the Termination Date, the Executive's employment with the Company is terminated due to the Executive's death, in addition to any other payments or benefits to which the Executive is entitled under Company benefit plans or otherwise, the Executive and the Executive's qualified beneficiaries or estate, as applicable, shall be entitled to the benefits set forth in Paragraphs 2(d)(i), (iii) and (iv) and in Paragraph 2(d)(ii) less any amounts received by the Executive's estate pursuant to any death benefits under any plans, programs, policies and arrangements of the Company as are then in effect. In the event that the Executive dies, the legal representative of the Executive's estate shall execute the Release on behalf of the Executive's estate. (f) Contemporaneously with the execution of this Agreement, the Executive shall execute and deliver a letter in the form attached hereto as Exhibit E, resigning as of the Termination Date from any and all boards and office or director positions, if any, with the 3 Company and any of its parents, subsidiaries or affiliates, and any other documents necessary to effectuate such resignation. 3. EXECUTIVE'S COVENANTS; CONFIDENTIALITY. (a) The Executive reaffirms, and agrees to comply with, all of the Executive's obligations in Section 7(h) and Section 9 of the Employment Agreement. Notwithstanding the foregoing, nothing in Section 9 of the Employment Agreement or Paragraph 3(b) of this Agreement shall prohibit the Executive from disclosing the conditions of the Executive's separation from the Company. (b) The Executive also agrees to keep confidential the terms and conditions of this Agreement, except that the Executive may disclose such information (i) as maybe required in the course of obtaining legal advice with respect to the rights and obligations created hereby, (ii) as may be required in the preparation of foreign, federal, state or local tax returns, (iii) as may be needed to explain the circumstances of the Executive's separation from the Company, (iv) as may be required in the enforcement or implementation of this Agreement, or (v) as may be required to respond to a subpoena, court order or similar legal process; provided, however, that prior to making any such disclosure, the Executive shall provide the Company with written notice of the subpoena, court order or similar legal process sufficiently in advance of such disclosure to afford the Company a reasonable opportunity to challenge the subpoena, court order or similar legal process. 4. NO ADMISSION OF WRONGDOING. Nothing herein is to be deemed to constitute an admission of wrongdoing by the Company or any of the other Company Releasees (as defined in Exhibit B) or the Executive. 5. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The Executive acknowledges that (i) the Company has advised the Executive of the Executive's right to consult with an attorney of the Executive's choosing prior to signing this Agreement, (ii) the Executive has consulted with an attorney regarding the terms of this Agreement prior to executing it, (iii) the Executive has carefully read and fully understands all of the provisions of this Agreement and (iv) the Executive is entering into this Agreement knowingly, freely and voluntarily in exchange for good and valuable consideration. 6. STOCK OPTIONS. The Executive acknowledges that the Executive has received the Non-Qualified and Incentive Stock Option Notice, dated April 11, 2003, attached hereto as Exhibit F (the "Stock Option Notice") and there are no other option grants to which the Executive is entitled. 7. FORM S-8; OPINIONS OF COUNSEL. (a) The Company agrees that, if it has not already done so, as soon as possible following the date hereof, it will file a Form S-8, pursuant to the Securities Act of 1933, as amended, to register the shares of the Company's common stock that (1) have been issued pursuant to payment of the Consummation Bonus (within the meaning of Section 4(a) of the Employment Agreement) and currently held in escrow pursuant to the Escrow Agreement, (ii) may be issued as partial payment of the Executive's bonus pursuant to Section 2(b) hereof and 4 (iii) may be issued upon the exercise of the option evidenced by the Stock Option Notice (subparagraphs (a)(i)-(iii) of this Paragraph 7 being collectively, the "Company Shares"). (b) Prior to the Termination Date, the Company shall obtain, at the Company's sole expense, an opinion from the Company's counsel to the effect that the Company Shares are, or will be when issued, (i) validly issued, fully paid and non-assessable and (ii) not "restricted securities" within the meaning of Rule l44(a)(3) under the Securities Act of 1933, as amended. 8. UNUSED VACATION. As of June 20, 2003, the Executive is entitled to twenty-five (25) vacation days through the Termination Date. The Company with the mutual consent of the Executive, which consent shall not be unreasonably withheld, shall schedule the Executive for a minimum of nine (9) vacation days between June 20, 2003 and the Termination Date; provided, however, that in the event that the Executive unreasonably withholds the Executive's consent, the Company will schedule such days for the Executive at the Company's sole discretion. As part of the Company's final paycheck to the Executive on the Termination Date, the Company shall pay up to sixteen (16) vacation days, less the number of vacation days taken by the Executive following June 20, 2003 in excess of nine vacation days, at a rate equal to the product of the Executive's Base Salary divided by 250 days. 9. WITHHOLDING. The Company shall be entitled to withhold from amounts to be paid to the Executive hereunder any foreign, federal, state or local withholding or other taxes which it is from time to time required by law to withhold. 10. NO ORAL MODIFICATION; NO WAIVERS. This Agreement may not be changed orally, but may be changed only in a writing signed by the Executive and a duly authorized representative of the Company. The failure of the Executive or the Company to enforce any of the terms, provisions or covenants of this Agreement will not be construed as a waiver of the same or of the right of such party to enforce the same. Waiver by either the Executive or the Company of any breach or default by the other party of any term or provision of this Agreement will not operate as a waiver of any other breach or default. 11. ASSIGNMENT. This Agreement is personal to the Executive and may not be assigned by the Executive, and is binding on and shall inure to the benefit of the Company and the other Company Releasees. 12. DESCRIPTIVE HEADINGS. The paragraph headings contained herein are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement. 13. ENFORCEABILITY. In the event that any one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder hereof will not in any way be affected or impaired thereby and any such provision or provisions will be enforced to the fullest extent permitted by law. 14. MODIFICATION OF EMPLOYMENT AGREEMENT. Sections 2, 3, 4, 5 and 6 in their entirety and Subsections (a)-(g) of Section 7 of the Employment Agreement are hereby null and void. The remaining provisions of the Employment Agreement shall remain in full force and 5 effect according to their terms, as such terms have been modified herein. For the sake of clarity, for purposes of this Agreement, the definition of "Disabled" shall be the definition contained in Section 7(a) of the Employment Agreement, the definition of "Constructive Termination Without Cause" shall be the definition contained in Section 7(e)(i) of the Employment Agreement (as modified by this Agreement) and the definition of "Cause" shall be the definition contained in Section 7(e)(iii) of the Employment Agreement (as modified by this Agreement). 15. ENTIRE AGREEMENT. This Agreement, the Employment Agreement (as modified by this Agreement) and the Release set forth the entire understanding between the Executive and the Company and supersede all prior agreements, representations, discussions, and understandings concerning the subject matter hereof. The Executive represents that, in executing this Agreement, the Executive has not relied upon any representation or statement made by the Company or any other Company Releasees, other than those set forth herein, with regard to the subject matter, basis or effect of this Agreement or otherwise. 16. GOVERNING LAW. This Agreement shall be construed and enforced according to the laws of the State of New York, without giving effect to its principles of conflicts of law. 17. ATTORNEYS' FEES. In the event that the Executive brings an action to enforce the Executive's rights under this Agreement and the Executive prevails in any such action, the Company will reimburse the Executive for all reasonable attorneys' fees and costs incurred by the Executive in any such action for the claims in which the Executive prevails. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 IN WITNESS WHEREOF, the Executive and a duly authorized representative of the Company have executed this Agreement on the dates indicated below. EXECUTIVE NTL INCORPORATED /s/ Richard J. Lubasch By: /s/ J. Barclay Knapp 6/18/03 - ---------------------- ------- -------------------------------- -------- Richard J. Lubasch Date J. Barclay Knapp Date President - Chief Executive Officer NTL Incorporated EXHIBIT A EMPLOYMENT AGREEMENT, DATED AS OF NOVEMBER 7, 2002 BETWEEN NTL COMMUNICATIONS CORP. AND RICHARD J. LUBASCH (INCORPORATED BY REFERENCE TO EXHIBIT 10.12 OF NTL INCORPORATED'S REGISTRATION STATEMENT ON FORM S-1 (FILE NO. 333-103135) FILED ON FEBRUARY 12, 2003, AS AMENDED ON JUNE 25, 2003) EXHIBIT B RELEASE This Release ("Release") is entered into between Richard J. Lubasch (the "Executive") and NTL Incorporated (the "Company") on the dates indicated below. 1. EXECUTIVE RELEASE. (a) The Executive, on behalf of the Executive, the Executive's heirs, executors, administrators, successors and assigns, hereby irrevocably, unconditionally, voluntarily, knowingly and willingly releases and forever discharges the Company, its parents, their subsidiaries, divisions and affiliates, together with their respective officers, directors, partners, shareholders, employees, agents, attorneys and representatives, and any of their predecessors and successors and each of their estates, heirs and assigns (collectively, the "Company Releasees"), from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, rights, costs, losses, causes of action and demands, debts or expenses of any nature whatsoever, known or unknown, that the Executive or the Executive's heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, will or may have against the Company or the Company Releasees by reason of any matter, cause or thing whatsoever from the beginning of time to the date of this Release, except as set forth in Paragraph 1(b) below, including, but not limited to, any rights or claims relating in any way to (i) the Executive's employment relationship with the Company or the Company's decision to terminate the Executive's employment, (ii) all claims for attorneys' fees, punitive or consequential damages and (iii) all claims arising under any federal, state and local labor, employment and/or anti-discrimination laws including, without limitation, the federal Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1990, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act of 1993, the New York State and City Human Rights Law, each as amended, and any other federal, state, local or foreign law or judicial decision. The Executive further agrees that the Company does not owe the Executive any further wages, compensation or benefits, except the wages, compensation and benefits specifically enumerated in the severance agreement to which this Release is attached (the "Severance Agreement"). (b) Nothing in this Release shall be deemed to release (i) the Executive's right to indemnification under Section 10 of the Employment Agreement, or any other indemnification rights that may exist under Delaware law or pursuant to the Company's certificate of incorporation or by-laws, (ii) the Executive's right to any vested benefit under the Company's 401 (k) plan and any options granted pursuant to the 2003 NTL Incorporated Stock Option Plan or (iii) the Executive's rights as set forth under the Severance Agreement. (c) The Executive acknowledges and agrees that the Company has fully satisfied any and all obligations owed to the Executive arising out of the Executive's employment with the Company, and no further sums are owed to the Executive by the Company or any of the other Company Releasees, except as expressly provided in the Severance Agreement. (d) The Executive represents that the Executive has no complaints, charges or lawsuits pending against the Company or any of the other Company Releasees. The Executive acknowledges and agrees that the Executive and the Executive's heirs, executors, administrators, successors or assigns shall not, directly or indirectly, be entitled to any personal recovery in any lawsuit or other claim against the Company or any other Company Releasees based on any event arising out of the matters released in this Paragraph 1. 2. COMPANY RELEASE. The Company knowingly and willingly releases and forever discharges the Executive from any and all charges, complaints, claims, promises, agreements, controversies, causes of action and demands of any nature whatsoever that the Company now has or hereafter can, shall or may have against the Executive by reason of any matter, cause or thing whatsoever arising from the beginning of time to the date of this Release, provided, however, that nothing herein is intended to release any claim the Company may have against the Executive for any illegal conduct. Notwithstanding the foregoing, the release set forth in this paragraph shall not release the Executive from the Executive's obligations in the Severance Agreement or any of Executive's continuing obligations in the Employment Agreement. 3. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The Executive acknowledges that (i) the Company has advised the Executive of the Executive's right to consult with an attorney of the Executive's choosing prior to signing this Release, (ii) the Executive has consulted with an attorney regarding the terms of this Release prior to executing it, (iii) the Executive has carefully read and fully understands all of the provisions of this Release and (iv) the Executive is entering into this Release, including the releases set forth in Paragraph 1 above, knowingly, freely and voluntarily in exchange for good and valuable consideration. 4. CONSIDERATION & REVOCATION PERIOD. (a) The Executive acknowledges that the Executive has been given at least forty-five (45) calendar days to consider the terms of this Release, as well as the information attached hereto. (b) The Executive will have seven (7) calendar days from the date on which the Executive signs this Release to revoke the Executive's consent to this Release. The Executive shall make such revocation in writing and shall send such writing to J. Barclay Knapp, NTL Incorporated, 110 East 59th Street, 26th Floor, New York, New York 10022, fax number: (212) 752-1157. The Company must receive such notice of revocation within the seven (7) calendar days referenced above. Provided that the Executive does not revoke this Release, this Release shall become effective on the eighth calendar day after the date on which the Executive signs this Release. (c) In the event of a revocation under Paragraph 4(b) of this Release by the Executive, Paragraphs 2(b), 2(d) and 2(e) of the Severance Agreement and this Release in its entirety shall become null and void. In the event the Company fails to execute this Release, the provisions of Paragraph 1 of this Release shall become null and void. 2 5. NO ADMISSION OF WRONGDOING. Nothing herein is to be deemed to constitute an admission of wrongdoing by the Company or any of the other Company Releasees or the Executive. 6. NO ORAL MODIFICATION; NO WAIVERS. This Release may not be changed orally, but may be changed only in a writing signed by the Executive and a duly authorized representative of the Company. The failure of the Executive or the Company to enforce any of the terms, provisions or covenants of this Release will not be construed as a waiver of the same or of the right of such party to enforce the same. Waiver by either the Executive or the Company of any breach or default by the other party of any term or provision of this Release will not operate as a waiver of any other breach or default. 7. ASSIGNMENT. This Release is personal to the Executive and may not be assigned by the Executive, and is binding on and shall inure to the benefit of the Company and the other Company Releasees. 8. DESCRIPTIVE HEADINGS. The paragraph headings contained herein are for reference purposes only and will not in any way affect the meaning or interpretation of this Release. 9. ENFORCEABILITY. In the event that any one or more of the provisions of this Release is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder hereof will not in any way be affected or impaired thereby and any such provision or provisions will be enforced to the fullest extent permitted by law. 10. ENTIRE AGREEMENT. This Release, the Severance Agreement and the Employment Agreement (as modified by the Severance Agreement) set forth the entire understanding between the Executive and the Company and supersede all prior agreements, representations, discussions, and understandings concerning the subject matter hereof. The Executive represents that, in executing this Release, the Executive has not relied upon any representation or statement made by the Company or any other Company Releasees, other than those set forth herein, with regard to the subject matter, basis or effect of this Release or otherwise. 11. GOVERNING LAW. This Release shall be construed and enforced according to the laws of the State of New York, without giving effect to its principles of conflicts of law. 3 IN WITNESS WHEREOF, Executive and a duly authorized representative of the Company have executed this Release on the dates indicated below. EXECUTIVE NTL INCORPORATED ___________________ _____ By: ____________________________________ _______ Richard J. Lubasch Date J. Barclay Knapp Date President - Chief Executive Officer NTL Incorporated 4 ATTACHMENT TO RELEASE 1. The decisional unit is all employees who work out of, or are affiliated with, the New York office of the Company. 2. In connection with transferring certain functions to its United Kingdom office, the Company has decided to reduce its New York workforce on August 15, 2003 (the "Termination Date"). 3. All full-time employees of the Company, other than employees with individual severance agreements or employment agreements in effect or whose employment is covered by a collective bargaining agreement, are eligible for certain severance benefits under the NTL Incorporated Severance Plan (the "Plan-Based Severance") upon a termination without "Cause" (as defined in the Plan). 4. Employees with employment agreements are eligible for certain severance benefits upon a termination without "Cause" (as defined in each individual employment agreement) under the terms of their individual employment agreements (the "Agreement-Based Severance"). 5. All employees will have forty-five (45) calendar days to consider the terms of the Release. All employees must sign the release on, or within the eight calendar days prior to, August 15, 2003. Once an employee signs the Release, such employee will have seven (7) calendar days to revoke the Release. 6. The following is a list of all employees, who work out of or are affiliated with the New York office, by title, age and whether they are eligible for the Plan-Based Severance, Agreement-Based Severance or not presently eligible for either:
2 EXHIBIT C Bonus for Richard Lubasch = $477,000 x 0.5 x Relevant Percentage The Relevant Percentage will be defined by the following table:
Therefore, by way of example, if an employee's target bonus was $100,000 and the Company's H1 UFCF was L120.0 million, then the employee's Bonus would be equal to $100,000 x 0.5 x 100.0% or $50,000. H1 is defined as the accounting period from January 1, 2003 to June 30, 2003. UFCF is defined as unlevered free cash flow of the NTL Group as a whole and shall be calculated for purposes of this Agreement on the same basis as it is calculated for the relevant period under the Company's 2003 Bonus Scheme, for the employees of the NTL Group generally. EXHIBIT D [COMPANY LETTERHEAD] August _____, 2003 BY HAND DELIVERY & FACSIMILE Continental Stock Transfer & Trust Company Attention: Steven Nelson 17 Battery Place, 8th Floor New York, New York 10004-1102 Facsimile: (212) 509-5150 Dear Mr. Nelson: NTL Incorporated ("NTL") hereby authorizes and directs Continental Stock Transfer & Trust Company, pursuant to Paragraph 4 of the Escrow Agreement, dated January 20, 2003, among the Company and certain of its executives, including Richard J. Lubasch, to release immediately 22,220 shares of NTL to Richard J. Lubasch. Such shares should be delivered to Richard J. Lubasch, 4 Beech Tree Lane, Brookville, New York 11545. Sincerely, J. Barclay Knapp President - Chief Executive Officer NTL Incorporated EXHIBIT E Richard J. Lubasch 4 Beech Tree Lane Brookville, New York 11545 June ___, 2003 BY HAND NTL Incorporated Attention: J. Barclay Knapp l10 East 59th Street, 26th Floor New York, New York 10022 Re: Resignation To J. Barclay Knapp: Effective August 15, 2003, I hereby resign from any and all boards and office or director positions, if any, with the Company and any of its parents, subsidiaries or affiliates. I also agree to execute any other documents necessary to effectuate such resignation. Sincerely, Richard J. Lubasch NON-QUALIFIED AND INCENTIVE STOCK OPTION NOTICE Dear Richard Lubasch This Option Notice (the "Notice") dated as of April 11, 2003 (the "Grant Date") is being sent to you by NTL Incorporated including any successor company, (the "Company"). As you are presently serving as an employee of NTL Incorporated or one of its Subsidiary Corporations, in recognition of your services and pursuant to the 2003 NTL Incorporated Stock Option Plan (the "Plan"), the Company has granted you the Option provided for in this Notice. The Option is subject to the terms and conditions set forth in the Plan, which is incorporated herein by reference, and defined terms used but not defined in this Notice shall have the meaning set forth in the Plan. 1. GRANT OF OPTION. The Company hereby irrevocably grants to you, as of the Grant Date, an Option to purchase up to 40,000 shares of the Company's Common Stock at a price of $9 per share (the "First Tranche") and an Option to purchase up to 40,000 shares of the Company's Common Stock at a price of $15 per share (the "Second Tranche") and collectively with the First Tranche (the "Option"). The First Tranche is not intended to qualify as an Incentive Stock Option under U.S. tax laws or as an "approved option" under UK tax laws. The Second Tranche is intended to qualify as an Incentive Stock Option under U.S. tax laws and the Company will treat it as such to the extent permitted by applicable law. 2. VESTING. Each of the First Tranche and the Second Tranche shall vest with respect to 20% of the shares covered thereby on April 11, 2004 and each such Tranche shall vest with respect to an additional 20% of such shares on each April 11th thereafter until fully vested, provided that you are employed by the Company or one of its Subsidiary Corporations on each such vesting date. Notwithstanding the foregoing, in the event of a termination of your employment other than a termination by the Company for Cause, each of the First Tranche and the Second Tranche shall become vested as to 25% of the shares covered thereby, which vesting shall be in addition to vesting, if any, that may have occurred prior to termination, provided that neither of the Tranches shall in any event vest with respect to more than 100% of the shares covered thereby. 3. EXERCISE PERIOD. Except as set forth above in paragraph 2, the Option shall stop vesting immediately upon the termination of your employment and any portion of the Option that is not vested at the time of termination of your employment shall immediately be forfeited and cancelled. Your right to exercise that portion of the Option that is vested at the time of your termination shall terminate on the earlier of the following dates: (a) three months after the Severance Period (as defined below) ends in connection with your termination other than for Cause; (b) one year after your termination resulting from your retirement, Disability or death (c) the date on which your employment is terminated for Cause; or (d) April 10, 2013. For purposes of this Agreement "Severance Period" shall mean the number of years equal to the number multiplied by your base salary to determine the amount of severance payable to you under your severance agreement. 4. MANNER OF EXERCISE. The Option may be exercised by delivery to NTL Incorporated, Attn: Robert Mackenzie/Stock Options at its office (NTL House, 10 Bartley Way, Bartley Wood, Hook, Hampshire RG24 9XA) of a notice in the form attached signed by the person entitled to exercise the Option, specifying the number of shares which such person wishes to purchase, together with a certified or bank check or cash (or such other manner of payment as permitted by the Plan) for the aggregate option price for that number of shares and any required withholding (including a payment sufficient to indemnify the Company or any Subsidiary of the Company in full against any and all liability to account for any tax or duty payable and arising by reason of the exercise of the Option). 5. TRANSFERABILITY. Neither this Option nor any interest in this Option may be transferred other than by will or the laws of descent or distribution, and this Option may be exercised during your lifetime only by you or your guardian or legal representative. NTL INCORPORATED By: /s/ J. Barclay Knapp -------------------- Name: Title: 2 EXECUTION COPY RELEASE This Release ("Release") is entered into between Richard J. Lubasch (the "Executive") and NTL Incorporated (the "Company") on the dates indicated below. 1. EXECUTIVE RELEASE. (a) The Executive, on behalf of the Executive, the Executive's heirs, executors, administrators, successors and assigns, hereby irrevocably, unconditionally, voluntarily, knowingly and willingly releases and forever discharges the Company, its parents, their subsidiaries, divisions and affiliates, together with their respective officers, directors, partners, shareholders, employees, agents, attorneys and representatives, and any of their predecessors and successors and each of their estates, heirs and assigns (collectively, the "Company Releasees"), from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, rights, costs, losses, causes of action and demands, debts or expenses of any nature whatsoever, known or unknown, that the Executive or the Executive's heirs, executors, administrators, successors or assigns ever had, now have or hereafter can, will or may have against the Company or the Company Releasees by reason of any matter, cause or thing whatsoever from the beginning of time to the date of this Release, except as set forth in Paragraph 1(b) below, including, but not limited to, any rights or claims relating in any way to (i) the Executive's employment relationship with the Company or the Company's decision to terminate the Executive's employment, (ii) all claims for attorneys' fees, punitive or consequential damages and (iii) all claims arising under any federal, state and local labor, employment and/or anti-discrimination laws including, without limitation, the federal Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1990, the Americans with Disabilities Act of 1990, the Employee Retirement Income Security Act of 1974, the Family and Medical Leave Act of 1993, the New York State and City Human Rights Law, each as amended, and any other federal, state, local or foreign law or judicial decision. The Executive further agrees that the Company does not owe the Executive any further wages, compensation or benefits, except the wages, compensation and benefits specifically enumerated in the severance agreement to which this Release is attached (the "Severance Agreement"). (b) Nothing in this Release shall be deemed to release (i) the Executive's right to indemnification under Section 10 of the Employment Agreement, or any other indemnification rights that may exist under Delaware law or pursuant to the Company's certificate of incorporation or by-laws, (ii) the Executive's right to any vested benefit under the Company's 401(k) plan and any options granted pursuant to the 2003 NTL Incorporated Stock Option Plan or (iii) the Executive's rights as set forth under the Severance Agreement. (c) The Executive acknowledges and agrees that the Company has fully satisfied any and all obligations owed to the Executive arising out of the Executive's employment with the Company, and no further sums are owed to the Executive by the Company or any of the other Company Releasees, except as expressly provided in the Severance Agreement. (d) The Executive represents that the Executive has no complaints, charges or lawsuits pending against the Company or any of the other Company Releasees. The Executive acknowledges and agrees that the Executive and the Executive's heirs, executors, administrators, successors or assigns shall not, directly or indirectly, be entitled to any personal recovery in any lawsuit or other claim against the Company or any other Company Releasees based on any event arising out of the matters released in this Paragraph 1. 2. COMPANY RELEASE. The Company knowingly and willingly releases and forever discharges the Executive from any and all charges, complaints, claims, promises, agreements, controversies, causes of action and demands of any nature whatsoever that the Company now has or hereafter can, shall or may have against the Executive by reason of any matter, cause or thing whatsoever arising from the beginning of time to the date of this Release, provided, however, that nothing herein is intended to release any claim the Company may have against the Executive for any illegal conduct. Notwithstanding the foregoing, the release set forth in this paragraph shall not release the Executive from the Executive's obligations in the Severance Agreement or any of Executive's continuing obligations in the Employment Agreement. 3. CONSULTATION WITH ATTORNEY/VOLUNTARY AGREEMENT. The Executive acknowledges that (i) the Company has advised the Executive of the Executive's right to consult with an attorney of the Executive's choosing prior to signing this Release, (ii) the Executive has consulted with an attorney regarding the terms of this Release prior to executing it, (iii) the Executive has carefully read and fully understands all of the provisions of this Release and (iv) the Executive is entering into this Release, including the releases set forth in Paragraph 1 above, knowingly, freely and voluntarily in exchange for good and valuable consideration. 4. CONSIDERATION & REVOCATION PERIOD. (a) The Executive acknowledges that the Executive has been given at least forty-five (45) calendar days to consider the terms of this Release, as well as the information attached hereto. (b) The Executive will have seven (7) calendar days from the date on which the Executive signs this Release to revoke the Executive's consent to this Release. The Executive shall make such revocation in writing and shall send such writing to J. Barclay Knapp, NTL Incorporated, 110 East 59th Street, 26th Floor, New York, New York 10022, fax number: (212) 752-1157. The Company must receive such notice of revocation within the seven (7) calendar days referenced above. Provided that the Executive does not revoke this Release, this Release shall become effective on the eighth calendar day after the date on which the Executive signs this Release. (c) In the event of a revocation under Paragraph 4(b) of this Release by the Executive, Paragraphs 2(b), 2(d) and 2(e) of the Severance Agreement and this Release in its entirety shall become null and void. In the event the Company fails to execute this Release, the provisions of Paragraph 1 of this Release shall become null and void. 2 5. NO ADMISSION OF WRONGDOING. Nothing herein is to be deemed to constitute an admission of wrongdoing by the Company or any of the other Company Releasees or the Executive. 6. NO ORAL MODIFICATION; NO WAIVERS. This Release may not be changed orally, but may be changed only in a writing signed by the Executive and a duly authorized representative of the Company. The failure of the Executive or the Company to enforce any of the terms, provisions or covenants of this Release will not be construed as a waiver of the same or of the right of such party to enforce the same. Waiver by either the Executive or the Company of any breach or default by the other party of any term or provision of this Release will not operate as a waiver of any other breach or default. 7. ASSIGNMENT. This Release is personal to the Executive and may not be assigned by the Executive, and is binding on and shall inure to the benefit of the Company and the other Company Releasees. 8. DESCRIPTIVE HEADINGS. The paragraph headings contained herein are for reference purposes only and will not in any way affect the meaning or interpretation of this Release. 9. ENFORCEABILITY. In the event that any one or more of the provisions of this Release is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder hereof will not in any way be affected or impaired thereby and any such provision or provisions will be enforced to the fullest extent permitted by law. 10. ENTIRE AGREEMENT. This Release, the Severance Agreement and the Employment Agreement (as modified by the Severance Agreement) set forth the entire understanding between the Executive and the Company and supersede all prior agreements, representations, discussions, and understandings concerning the subject matter hereof. The Executive represents that, in executing this Release, the Executive has not relied upon any representation or statement made by the Company or any other Company Releasees, other than those set forth herein, with regard to the subject matter, basis or effect of this Release or otherwise. 11. GOVERNING LAW. This Release shall be construed and enforced according to the laws of the State of New York, without giving effect to its principles of conflicts of law. 3 IN WITNESS WHEREOF, Executive and a duly authorized representative of the Company have executed this Release on the dates indicated below. EXECUTIVE NTL INCORPORATED /s/ Richard J. Lubasch 8-7-03 By: /s/ J. Barclay Knapp 8-7-03 - ----------------------- ------ ------------------------------- ------- Richard J. Lubasch Date J. Barclay Knapp Date President - Chief Executive Officer NTL Incorporated 4 ATTACHMENT TO RELEASE 1. The decisional unit is all employees who work out of, or are affiliated with, the New York office of the Company. 2. In connection with transferring certain functions to its United Kingdom office, the company has decided to reduce its New York workforce on August 15, 2003 (the "Termination Date"). 3. All full-time employees of the Company, other than employees with individual severance agreements or employment agreements in effect or whose employment is covered by a collective bargaining agreement, are eligible for certain severance benefits under the NTL Incorporated Severance Plan (the "Plan-Based Severance") upon a termination without "Cause" (as defined in the Plan). 4. Employees with employment agreements are eligible for certain severance benefits upon a termination without "Cause" (as defined in each individual employment agreement) under the terms of their individual employment agreements (the "Agreement-Based Severance"). 5. All employees will have forty-five (45) calendar days to consider the terms of the Release. All employees must sign the release on, or within the eight calendar days prior to, August 15, 2003. Once an employee signs the Release, such employee will have seven (7) calendar days to revoke the Release. 6. The following is a list of all employees, who work out of or are affiliated with the New York office, by title, age and whether they are eligible for the Plan-Based Severance, Agreement-Based Severance or not presently eligible for either:
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