Exhibit 10.1 EXECUTION COPY SECOND AMENDED &RESTATED EMPLOYMENT AGREEMENT

 

 

THIS AMENDED & RESTATED EMPLOYMENT AGREEMENT, dated as of 3 July 2009 (this “Agreement”), by and between Virgin Media Inc. (f/k/a NTL Incorporated), a Delaware corporation (the “Company”), and James F. Mooney (the “Executive”).

 

WHEREAS, the Executive has been employed as the Chairman of the Board of Directors of the Company (the “Board”) since 3 March 2006, pursuant to the terms of an amended and restated employment agreement dated as of 5 July 2006 (“First Amended and Restated Agreement”); and

 

WHEREAS, the Company and the Executive each desire to further amend and restate the First Amended and Restated Agreement in its entirety to extend the Employment Term, provide for a transition of certain of the Executive’s responsibilities to the Company’s Chief Executive Officer (the “CEO”) and to provide for certain additional restricted stock grants to the Executive;

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.           Amendment; Employment Term. The First Amended and Restated Agreement is hereby amended and restated in its entirety by this Agreement.  Except for earlier termination as provided for in Section 7, the Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, subject to the terms and provisions of this Agreement, for the period commencing on 1 May 2009 (the “Restatement Effective Date”) and ending on 31 December 2010 (the “Employment Term”).

 

2.  Duties and Responsibilities.

 

(a)     General.  During the Employment Term and subject to Subsection (b) of this Section 2, the Executive shall serve as the Chairman of the Board and shall perform such duties, services and responsibilities on behalf of the Company and its subsidiaries as may be determined from time to time by the Board.  In performing such duties hereunder, the Executive will report directly to the Board.  The Executive shall devote substantial business time, attention and skill to the performance of such duties, services and responsibilities, and will use his best efforts to promote the interests of the Company.

 

(b)           Transition of Certain Responsibilities.  The Executive and the Company agree that the Executive’s duties and responsibilities hereunder shall be transitioned to the CEO over the course of the Employment Term.  The Executive shall meet with the Compensation Committee of the Board (“Compensation Committee”) or its Chairman at such times as the Chairman of the Compensation Committee shall request to discuss the progress of the Executive in transitioning these responsibilities.

 

3.           Cash Compensation.  In full consideration of the performance by the Executive of the Executive’s obligations during the Employment Term, the Executive shall be compensated as follows:

 

(a)           Base Salary.  The Executive shall be eligible to receive a base salary during the Employment Term at an annual rate of $1,250,000 per year (the “Base Salary”).  The Base Salary is payable in accordance with the normal payroll practices of the Company then in effect.

 

(b)           Incentive Bonus.  The Executive shall participate in the Company’s cash bonus plans, with an on-target bonus percentage of 100% (0-200%) of base salary, provided that for bonus purposes his base salary shall be deemed to be $400,000 and that no personal multiplier shall apply in the calculation of his bonus (the “Bonus”).

 

(c)           Clawback.  If the Compensation Committee determines that the Executive’s gross negligence, fraud or other misconduct has contributed to the Company having to restate all or a portion of its financial statements the Compensation Committee may if it determines in its sole judgment that it is in the Company’s interest to do so require reimbursement by the Executive of any payment made under any bonus arrangement where: (i) the payment under that bonus arrangement was predicated upon achieving certain financial results that were subsequently the subject of a restatement of Company financial statements filed with the Securities and Exchange Commission and/or the satisfaction of financial results or other performance metric criteria which the Compensation Committee subsequently determined were materially inaccurate; (ii) the Compensation Committee determines that the Executive’s gross negligence, fraud or other misconduct contributed to the need for the restatement and/or inaccuracy; and (iii) a lower bonus payment or award would have been made to the Executive based upon the restated financial results or accurate financial results or performance metric criteria. In any such case the Company may, to the extent permitted by applicable law, recover from the Executive, whether or not he remains in employment with the Company, the amount by which the Executive’s bonus payment/award for the relevant period exceeded the lower payment/award, if any, that would have been made based on the restated financial results or accurate financial results or performance metric criteria. The Executive agrees that he will upon demand by the Company repay to the Company the sum so demanded within 21 days of receiving the demand for payment and whether or not he remains the employee of the Company together with interest whichever is the greater of 5% or 1% above the Bank of England minimum lending rate from time to time from the date of the bonus payment or award to the date of actual repayment.

 

4.           Equity-Based Compensation.   As of the date hereof, the Company will grant to the Executive 625,000 shares of common stock of the Company, on the terms and conditions as described on Exhibit A and as set forth in the Restricted Stock Agreement attached in Exhibit A (the “Restricted Stock Agreement”).

 

5.           Benefits.  During the Employment Term, the Executive shall be entitled to: (i) participate in health insurance and life insurance plans, policies, programs and arrangements in accordance with the Company’s policy then in effect, to the extent the Executive meets the eligibility requirements for any such plan, policy, program or arrangement and (ii) reimbursement for travel expenses in accordance with the Company’s policy then in effect.

 

6.           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.

 

7.           Termination.  The Executive’s employment with the Company and the Employment Term 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”):

 

(a)           The death of the Executive (“Death”).

 

(b)           The mutual agreement between the Company and the Executive that the employment of the Executive with the Company shall be terminated.

 

(c)           The termination of employment by the Company for Cause upon written notice (the “Cause Notice”) to the Executive specifying the conduct constituting Cause.  Termination of employment for “Cause” means:  (i) the Executive is convicted of any criminal offense including fraud or breach of trust, (ii) the willful or continued failure of the Executive to perform the Executive’s duties hereunder (other than as a result of physical or mental illness) or (iii) in carrying out the Executive’s duties hereunder, the Executive has engaged in conduct that constitutes gross neglect or willful misconduct, unless the Executive believed in good faith that such conduct was in, or not opposed to, the best interests of the Company and its parents, subsidiaries, associated and affiliated companies and joint ventures (collectively, the “Company Affiliated Group”).  For all purposes of the Executive’s employment by the Company, if the Executive’s employment is terminated for Cause, the effective date of such termination shall be the date of delivery of the Cause Notice.

 

(d)           The termination of employment by the Company if the Executive is Disabled.  “Disabled” shall mean that the Executive, as of any date, has been unable, due to physical or mental incapacity, to substantially perform the Executive’s duties, services and responsibilities hereunder either for a period of at least 180 consecutive days or for at least 270 days in any consecutive 365-day period, whichever may be applicable.

 

(e)           The termination of employment by the Company other than (i) for Cause, being Disabled or Death or (ii) a termination described in Subsection (f) of this Section 7.

 

(f)           The termination of the Executive’s employment as of 30 April 2010 upon a vote, prior to such date, of a majority of the then current members of the Board excluding the Executive, the Company’s chief executive officer and any other members of the Board who are executives of the Company.

 

In the event of termination of the Executive’s employment, for whatever reason (other than Death), the Executive agrees to cooperate with the Company, its subsidiaries and affiliates and to be reasonably available to the Company, its subsidiaries and affiliates with respect to continuing and/or future matters arising out of the Executive’s employment hereunder or any other relationship with the Company, its subsidiaries or affiliates, whether such matters are business-related, legal or otherwise.

 

Upon termination of the Executive’s employment for any reason, the Executive shall be deemed to have resigned from the Board and from all other boards of, and other positions with, any member of the Company Affiliated Group, as applicable, and shall execute all such documentation required to evidence any such resignations.

 

8.           Termination Payments.

 

(a)           If the Executive’s employment with the Company terminates pursuant to Subsection (a), (b), (c) or (d) of Section 7 (or, for the avoidance of doubt, upon expiration of the Employment Term), the Company shall pay the Executive:  (i) any accrued and unpaid Base Salary as of the Termination Date and (ii) an amount equal to such reasonable and necessary business expenses incurred by the Executive in connection with the Executive’s employment on behalf of the Company on or prior to the Termination Date but not previously paid to the Executive (the “Accrued Compensation”).

 

(b)           If the Executive’s employment with the Company terminates pursuant to Subsection (e) or Subsection (f) of Section 7, subject to the Executive’s continued compliance with Section 9 and subject to the release described in Subsection (d) of this Section 8 becoming effective:

 

(i)           the Company shall pay the Executive the Accrued Compensation;

 

(ii)           for the shorter of (A) the remainder of the Employment Term or (B) the one-year period following the Termination Date, the Company shall continue to pay the Executive the Base Salary in accordance with the normal payroll practices of the Company;

 

(iii)           the Company shall pay, to the extent unpaid, the Bonus with respect to services performed in 2009 and 2010 at the same time as such bonuses are paid to employees generally and subject to the performance criteria to which such Bonus would have been subject had the Executive remained employed through the end of the Employment Term; provided, that, notwithstanding the foregoing, any Bonus payable with respect to services performed in 2009 shall be paid in 2010 and any Bonus payable with respect to services performed in 2010 shall be paid in 2011;

 

(iv)           all unvested shares of Restricted Stock granted under Section 3(i) of the Restricted Stock Agreement shall remain outstanding and eligible to become vested at the time and subject to attainment of the performance conditions specified therein; and

 

(iv)           all unvested shares of Restricted Stock granted under Section 3(ii) of the Restricted Stock Agreement with respect to which the fiscal year specified therein has not been completed as of the Termination Date shall become vested on the Termination Date without regard to whether the performance conditions relating thereto are satisfied (and, for the avoidance of doubt, Section 5 of the Restricted Stock Agreement shall apply to all unvested shares of Restricted Stock granted under Section 3(ii) of the Restricted Stock Agreement with respect to which the applicable fiscal year has been completed but with respect to which the Compensation Committee’s determination whether the applicable performance conditions have been satisfied has not been made as of the Termination Date).

 

(c)           If the Executive’s employment with the Company terminates pursuant to Subsection (a) of Section 7, any shares granted under the Restricted Stock Agreement and not then forfeited pursuant to the terms thereof shall become vested on the Termination Date.

 

(d)           Release; Full Satisfaction.  Notwithstanding any other provision of this Agreement, no severance pay or other benefits provided pursuant to Subsection (b) of this Section 8 shall become payable or become vested under this Agreement unless and until the Executive executes a general release of claims substantially in a form attached hereto as Exhibit B (as reasonably revised by the Company for changes in applicable laws); provided, that such release becomes effective not later than 45 days following the date of termination of employment.  The first installment of severance pay to which the Executive becomes entitled pursuant to Subsection (b)(ii) of this Section 8 shall be made on the next payroll date following the effectiveness of the release as of which commencement is administratively practicable and shall include the amounts that would have otherwise been paid during the period between the Termination Date and the effectiveness of the release.  The payments to be provided to the Executive pursuant to this Section 8 upon termination of the Executive’s employment shall constitute the exclusive payments in the nature of severance or termination pay or salary continuation which shall be due to the Executive upon a termination of employment and shall be in lieu of any other such payments under any plan, program, policy or other arrangement which has heretofore been or shall hereafter be established by any member of the Company Affiliated Group.

 

(e)           Effect of Section 409A of the Internal Revenue Code.  If the Executive is a “specified employee” for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations thereunder, any severance payments to the Executive which are subject to Section 409A shall not commence until six months from the Termination Date, and the first payment after such period shall include all prior severance payments that would have been paid during such six month period if Section 409A had not been applicable thereto.

 

9.           Executive Covenants.

 

(a)           Confidentiality.  The Executive agrees and understands that the Executive has been, and in the Executive’s position with the Company the Executive will be, exposed to and receive information relating to the confidential affairs of the Company Affiliated Group, including without limitation technical information, business and marketing plans, strategies, customer (or potential customer) information, other information concerning the products, promotions, development, financing, pricing, technology, inventions, expansion plans, business policies and practices of the Company Affiliated Group, whether or not reduced to tangible form, and other forms of information considered by the Company Affiliated Group to be confidential and in the nature of trade secrets.  The Executive will not knowingly disclose such information, either directly or indirectly, to any person or entity outside the Company Affiliated Group without the prior written consent of the Company; provided, however, that (i) the Executive shall have no obligation under this Section 9(a) with respect to any information that is or becomes publicly known other than as a result of the Executive’s breach of the Executive’s obligations hereunder and (ii) the Executive may (x) disclose such information to the extent he determines that so doing is reasonable or appropriate in the performance of the Executive’s duties or, (y) after giving prior notice to the Company to the extent practicable, under the circumstances, disclose such information to the extent required by applicable laws or governmental regulations or by judicial or regulatory process.  The Executive shall comply with the Company’s data protection policies.  Upon termination of the Executive’s employment, the Executive shall promptly supply to the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other tangible product or document which has been produced by, received by or otherwise submitted to the Executive in the course of or otherwise in connection with the Executive’s services to the Company Affiliated Group during or prior to the Employment Term.

 

(b)           Non-Competition and Non-Solicitation. During the period commencing upon the Restatement Effective Date and ending on the one-year anniversary of the termination of the Executive’s employment with the Company, the Executive shall not, as an employee, employer, stockholder, officer, director, partner, colleague, consultant or other independent contractor, advisor, proprietor, lender, or in any other manner or capacity (other than with respect to the Executive’s services to the Company Affiliated Group), directly or indirectly:

 

(i)           perform services for, or otherwise have any involvement with, a business unit of a person, where such business unit competes directly or indirectly with any member of the Company Affiliated Group by (x) owning or operating broadband or mobile  communications networks for telephone, mobile telephone, cable television or internet services, (y) providing mobile telephone, fixed line telephone, television or internet services or (z) owning, operating or providing any content-generation services or television channels, in each case principally in the United Kingdom (the “Core Businesses”); provided, however, that this Agreement shall not prohibit the Executive from owning up to 1% of any class of equity securities of one or more publicly traded companies;

 

(ii)           hire any individual who is, or within the six months prior to the Executive’s termination was, an employee of any member of the Company Affiliated Group whose base salary at the time of hire exceeded £65,000 per year; or

 

(iii)           solicit, in competition with any member of the Company Affiliated Group in the Core Businesses, any business, or order of business from any person that the Executive knows was a current or prospective customer of any member of the Company Affiliated Group during the Executive’s employment;

 

provided, that, notwithstanding the foregoing, the Executive shall not be deemed to be in violation of clause (i) or (iii) of the foregoing by virtue of acting as an attorney (as partner, associate, shareholder, member or employee) or as vice president, director or managing director or similar position at any accounting firm, law firm, investment banking firm or consulting firm, institutional investor or similar entity, in each case so long as the Executive takes reasonable steps to insulate himself from the businesses and activities of any such entity that relate to the Core Businesses during any period that this Section 9(b) is in effect.

 

(c)           Proprietary Rights.  The Executive assigns all of the Executive’s interest in any and all inventions, discoveries, improvements and patentable or copyrightable works initiated, conceived or made by the Executive, either alone or in conjunction with others, during the Employment Term and related to the business or activities of any member of the Company Affiliated Group to the Company or its nominee.  Whenever requested to do so by the Company, the Executive shall execute any and all applications, assignments or other instruments that the Company shall in good faith deem necessary to apply for and obtain trademarks, patents or copyrights of the United States or any foreign country or otherwise protect the interest of any member of the Company Affiliated Group therein.  These obligations shall continue beyond the conclusion of the Employment Term with respect to inventions, discoveries, improvements or copyrightable works initiated, conceived or made by the Executive during the Employment Term.

 

(d)           Remedies.  The Executive agrees that any breach of the terms of this Section 9 would result in irreparable injury and damage to the Company, its subsidiaries and/or its affiliates for which the Company, its subsidiaries and/or its affiliates 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, its subsidiaries and/or its affiliates, as applicable, shall be entitled to an immediate injunction and restraining order to prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any and all persons and/or entities acting for and/or with the Executive, without having to prove damages, in addition to any other remedies to which the Company, its subsidiaries and/or its affiliates may be entitled at law or in equity.  The terms of this paragraph shall not prevent the Company, its subsidiaries and/or its affiliates from pursuing any other available remedies for any breach or threatened breach hereof, including but not limited to the recovery of damages from the Executive.  The Executive and the Company further agree that the provisions of the covenants contained in this Section 9 are reasonable and necessary to protect the businesses of the Company Affiliated Group because of the Executive’s access to Confidential Information and his material participation in the operation of such businesses.  Should a court, arbitrator or other similar authority determine, however, that any provision of the covenants contained in this Section 9 are not reasonable or valid, either in period of time, geographical area, or otherwise, the parties hereto agree that such covenants should be interpreted and enforced to the maximum extent to which such court or arbitrator deems reasonable or valid.

 

The existence of any claim or cause of action by the Executive against the Company and/or its subsidiaries and/or its affiliates, 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 9.

 

10.           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, but not limited to, any prior employer.

 

11.           Indemnification.

 

(a)           To the extent permitted by applicable law, the Company shall indemnify the Executive against, and save and hold the Executive harmless from, any damages, liabilities, losses, judgments, penalties fines, amounts paid or to be paid in settlement, costs and reasonable expenses (including, but not limited to, attorneys’ fees and expenses), resulting from, arising out of or in connection with any threatened, pending or completed claim, action, proceeding or investigation (whether civil or criminal) against or affecting the Executive by reason of the Executive’s service from and after the Effective Date as an officer, director or employee of, or consultant to, any member of the Company Affiliated Group, or in any capacity at the request of any member of the Company Affiliated Group, or an officer, director or employee thereof, in or with regard to any other entity, employee benefit plan or enterprise (other than arising out of the Executive’s acts of misappropriation of funds or actual fraud).  In the event the Company does not compromise or assume the defense of any indemnifiable claim or action against the Executive, the Company shall promptly pay to the Executive to the extent permitted by applicable law all costs and expenses incurred or to be incurred by the Executive in defending or responding to any claim or investigation in advance of the final disposition thereof; provided, however, that if it is ultimately determined by a final judgment of a court of competent jurisdiction (from whose decision no appeals may be taken, or the time for appeal having lapsed) that the Executive was not entitled to indemnity hereunder, then the Executive shall repay forthwith all amounts so advanced.  The Company may not agree to any settlement or compromise of any claim against the Executive, other than a settlement or compromise solely for monetary damages for which the Company shall be solely responsible, without the prior written consent of the Executive, which consent shall not be unreasonably withheld.  This right to indemnification shall be in addition to, and not in lieu of, any other right to indemnification to which the Executive shall be entitled pursuant to the Company’s Certificate of Incorporation or By-laws or otherwise.

 

(b)           Directors’ and Officers’ Insurance.  The Company shall use its best efforts to maintain commercially reasonable directors’ and officers’ liability insurance during the Employment Term.

 

12.           Non-Waiver of Rights.  The failure to enforce at any time the provisions of this Agreement or to require at any time performance by any 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 any party to enforce each and every provision in accordance with its terms.

 

13.           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:               Virgin Media Inc.

909 Third Avenue

New York, New York 10022

Attn:  Secretary

Fax:   ###-###-####

 

with a copy to:                      Virgin Media Inc.

Bartley Wood Business Park

Hook, Hampshire RG27 9UP

Attn: HR Director

If to the Executive, to the address most recently provided by the Executive to the Company and contained in the Company’s records

 

14.           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.

 

15.           Entire Agreement.  This Agreement (as amended and restated hereby), the Restricted Stock Agreement and the agreements evidencing any prior grants of equity compensation set forth the entire understanding of the parties hereto with respect to the subject matter hereof and supersede all prior agreements, written or oral, between them as to such subject matter, including the agreement between the Executive and the Company dated 5 July 2006, which shall be null and void.

 

16.           Data Protection.  In accordance with relevant data protection legislation, the Company will hold and process the information it collects relating to the Executive in the course of the Executive’s employment for the purposes of employee administration, statistical and record keeping purposes, including information for occupational health and pension purposes.  This may include information relating to the Executive’s physical or mental health.  Some of the Executive’s information may be processed outside the European Economic Area, including without limitation in the United States.  The Executive’s information will be treated confidentially and will only be available to authorized persons.

 

17.           Withholding: Social Security.  The Company shall have the right to withhold or cause to be withheld from any payments made pursuant to this Agreement all federal, state, city, foreign or other taxes and social security or similar payments as shall be required to be withheld pursuant to any law or governmental regulation or ruling.   Notwithstanding the foregoing, the Executive shall remain responsible for all such amounts as he may owe in respect of his compensation hereunder.  Any payments made pursuant to this Agreement will be subject to US social security deductions for the Employment Term and the Company and the Executive shall be responsible for making their respective employer and employee contributions thereto, and the Executive hereby authorizes the Company to deduct from any payments to be made to the Executive his employee social security contributions and remit these to the relevant authority.

 

18.           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.

 

19.           Governing Law.  This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without reference to any principles of conflict of laws which might result in the application of the laws of any other jurisdiction.  The Executive irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and any federal court sitting in the State of New York. Each of the parties waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) related to or arising out of or in connection with this Agreement and the employment and other matters that are the subject of this Agreement and agrees that any such action, claim or proceeding may be brought exclusively in a federal or state court sitting in the State of New York.

 

20.           Modifications and Waivers.  No provision of this Agreement may be modified, altered or amended except by an instrument in writing executed by the parties hereto.  No waiver by any party hereto of any breach by any other party hereto of any provision of this Agreement to be performed by such other party shall be deemed a waiver of similar or dissimilar provisions at the time or at any prior or subsequent time.

 

21.           Headings.  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.

 

22.           Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.

 

 

 

IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by authority of the Compensation Committee of the Board of Directors, and the Executive has hereunto set his hand, on the day and year first above written.

 

 

 

 

 

 

[Signature Page to Second Amended & Restated Employment Agreement]