exv10w38






EXHIBIT
10.38




SECOND AMENDMENT

TO EMPLOYMENT AGREEMENT




     This Second Amendment (“Second Amendment”) to the Employment Agreement dated June 1, 2000 by
and between TIME WARNER ENTERTAINMENT COMPANY, L.P., a subsidiary of Time Warner Cable Inc., and
Carl Rossetti (the “Employment Agreement”) is made effective as of January 1, 2010.



     Each of the parties hereto, intending to be legally bound, hereby agrees that the Employment
Agreement shall be amended as follows:




	 	1.	 	Section 2 of the Employment Agreement shall be amended by:
(a) deleting each reference to “and Time Warner Inc.’s (“TWI”)” and “and TWI”
from the second paragraph, and (b) replacing the reference to “TWI’s
Statement of Corporate Policy and Compliance Program Manual” with “the
Company’s Standards of Business Conduct” in the second paragraph.






     2.      Section 3 of the Employment Agreement shall be amended by: (a) adding the following
defined term at the end of the first sentence: “(the “Target Bonus”)”, and (b) deleting the
following phrase from the second sentence: “; provided, however, the Employee shall be
entitled to a minimum Annual Bonus in respect of each calendar year equal to one-half of the
bonus calculated based on such target percentage (the “Target Bonus”) for such calendar
year”.




     3.      Section 5(b) of the Employment Agreement shall be deleted in its entirety and
replaced with the following:




“(b). Section Intentionally Left Blank.”




     4.      Section 5(c)(i) of the Employment Agreement shall be amended by adding a new Section
5(c)(i)(C) as follows:




     “C. If the commencement of the Transition Period is determined to be a
separation from service (within the meaning of Section 409A of the Code),
any Annual Bonus payment (1) related to the year that Employee’s separation
from service occurs, but excluding any portion of such year identified as
the Transition Period, shall be calculated based on the actual performance
of the Company and Employee (and Region if applicable), whereas the
Employee’s individual performance score shall be equal to the Company’s
performance score (and the Region’s performance score if applicable), and
(2) related to the Transition Period, shall be calculated based on the
greater of the Employee’s Target Bonus and the average of the two most
recent full year Annual Bonuses. All
payments of bonuses pursuant to this subsection shall be made at the times
set forth in Section 3.”



 









 






     5.      Section 6(b)(i) of the Employment Agreement shall be deleted in its entirety and
replaced with the following:




“(i). Section Intentionally Left Blank.”




     6.      Section 6(b)(ii) of the Employment Agreement shall be amended by deleting the
following phrase from the first sentence:




“prior to the occurrence of a Change in Control, or more than three years
following a Change in Control”




     7.      Section 6(b)(ii) of the Employment Agreement shall be amended by adding the
following phrase at the end of the first sentence:




“; provided that, the portion of the Annual Bonus payment related to active
service in the year that Employee’s termination of employment occurs, shall
be calculated based on the actual performance of the Company and Employee
(and Region if applicable), whereas the Employee’s individual performance
score shall be equal to the Company’s performance score (and the Region’s
performance score if applicable).”




     8.      Section 8 of the Employment Agreement shall be amended by deleting the phrase
“continue to be an employee” from the second sentence and replacing it with the phrase:
“continue to be treated as an employee”.




     9.      Section 9 of the Employment Agreement shall be deleted in its entirety and replaced
with the following:




“9. Section Intentionally Left Blank.”




     10.      Section 10 of the Employment Agreement shall be deleted in its entirety and
replaced with the following:




“10. IRC Sections 280G and 4999. Notwithstanding anything to the
contrary contained in this Agreement, to the extent that any amount or
benefit paid or distributed to Employee pursuant to this Agreement or any
other agreement or arrangement between the Company and Employee
(collectively, the “Payments”) (i) constitute a “parachute payment” within



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the meaning of Section 280G of the Code and (ii) but for this Section 10,
would be subject to the excise tax imposed by Section 4999 of the Code, then
the Payments shall be payable either (i) in full or (ii) as to such lesser
amount which would result in no portion of such Payments being subject to
excise tax under Section 4999 of the Code; whichever of the foregoing
amounts, taking into account the applicable federal, state and local income
or excise taxes (including the excise tax imposed by Section 4999) results
in Employee’s receipt on an after-tax basis, of the greatest amount of
benefits under this Agreement, notwithstanding that all or some portion of
such benefits may be taxable under Section 4999 of the Code. Unless
Employee and the Company otherwise agree in writing, any determination
required under this Section shall be made in writing by an independent
public accountant selected by the Company and reasonably acceptable to
Employee (the “Accountants”), whose determination shall be conclusive and
binding upon Employee and the Company for all purposes.




     a. For purposes of making the calculations required by this Section 10,
the Accountants may make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and Employee shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order
to make a determination under this Section. The Company shall bear all
costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section.




     b. If Employee receives reduced payments and benefits by reason of this
Section 10 and it is established pursuant to a final determination of the
court or an Internal Revenue Service proceeding that Employee could have
received a greater amount without resulting in an excise tax, then the
Company shall promptly thereafter pay Employee the aggregate additional
amount which could have been paid without resulting in an excise tax as soon
as practicable.




     c. The parties agree to cooperate generally and in good faith with
respect to (i) the review and determinations to be undertaken by the
Accountants as set forth in Section 10 and (ii) any audit, claim or other
proceeding brought by the Internal Revenue Service to review or contest or
otherwise related to the determinations of the Accountants as provided for
in Sections 10(a) and (b), including any claim or position taken by the
Internal Revenue Service that, if successful, would require the payment by
Employee of any additional excise tax, over and above the amounts of excise
tax established under the procedure set forth in Section 10(b).



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     d. The reduction of Company payments, if applicable, shall be effected
in the following order (unless the Employee, to the extent permitted by
Section 409A of the Code, elects another method of reduction by written
notice to the Company prior to the Section 280G event): (i) any cash
severance payments, (ii) any other cash amounts payable to Employee, (iii)
any benefits valued as parachute payments (iv) acceleration of vesting of
any stock options for which the exercise price exceeds the then fair market
value of the underlying stock, in order of the option tranches with the
largest Section 280G parachute value, (v) acceleration of vesting of any
equity award that is not a stock option and (vi) acceleration of vesting of
any stock options for which the exercise price is less than the fair market
value of the underlying stock in such manner as would net Employee the
largest remaining spread value if the options were all exercised as of the
Section 280G event.”




     11.      Section 12(b) of the Employment Agreement shall be amended by deleting the term
“Affiliated Person” in the second paragraph and replacing it with the following phrase:
“entity for which the Employee serves or expects to serve as an Affiliated Person.”




     12.      Section 16 of the Employment Agreement shall be amended by deleting the address
“290 Harbor Drive, Stamford, Connecticut 06902-6732” and replacing it with the following
address: “60 Columbus Circle, New York, New York 10023”.




     13.      Sections 19, 22, and 24 of the Employment Agreement shall be amended by deleting
each reference to “or TWI” and “and TWI”.




     14.      Section 26 of the Employment Agreement shall be deleted in its entirety and
replaced with the following:




“26. Section Intentionally Left Blank.”




     15.      Section 28 of the Employment Agreement shall be deleted in its entirety and
replaced with the following:




“28. Section Intentionally Left Blank.”




     16.      Section 32 of the Employment Agreement shall be amended to delete the first
sentence of the third paragraph in its entirety and replace it with the following sentence:




“The parties agree that the arbitration hearing shall take place in New
York, New York.”







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     17.      A new Section 34 shall be added to the Employment Agreement as follows:




“34. Definition of Retirement for Equity Awards. Notwithstanding
the provisions of Section 8 above, for equity awards granted on or after the
effective date of the Second Amendment, the definition of “Retirement”
applicable to Employee’s equity awards shall be the same definition in
effect for equity awards granted in 2009.”




     18.      The parties agree that Exhibit C of the Employment Agreement (form of Release)
shall be appropriately modified, if and when applicable, to reflect the foregoing amended
terms of the Employment Agreement.



     Except as expressly provided in this Second Amendment, all other provisions of the Employment
Agreement, as amended, shall remain in full force and effect.



[Remainder of page intentionally left blank.

Signatures on following page.]




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     IN WITNESS WHEREOF, each of the parties hereto has caused this Second Amendment to be duly
executed effective as of the date first written above.



	 	 	 	 	 
	TIME WARNER ENTERTAINMENT COMPANY, L.P.,

a subsidiary of Time Warner Cable Inc.
	 
	 	 	 	 
	By:

	 	     /s/ Tomas Mathews
	 	December 10, 2009
	 

	 	 
	 	 
	 

	 	     Tomas Mathews
	 	Date
	 

	 	     Executive Vice President, Human Resources	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	Agreed and Accepted:
	 
	 	 	 	 
	EXECUTIVE
	 
	 	 	 	 
	By:

	 	     /s/ Carl Rossetti
	 	December 10, 2009
	 

	 	 
	 	 
	 

	 	     Carl Rossetti
	 	Date







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