exv10w4






Exhibit 10.4




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
Marc J. Lawrence-Apfelbaum (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 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).



     e. 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:



2









 






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




     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.]








3









 








          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 18, 2009	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Tomas Mathews

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

	 	/s/ Marc J. Lawrence-Apfelbaum
	 	 	 	December 10, 2009	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Marc J. Lawrence-Apfelbaum
	 	 	 	Date	 	 







4