EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into by and between
CABLETEL MANAGEMENT, Inc., a Colorado corporation with its principal offices
located at 0000 X. Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("Company"), and
XXXXXXX X. XXXXXXX, a U.S. citizen and resident of the State of Colorado
("Employee").
RECITALS
A. The Company is a wholly owned subsidiary of CableTel Europe LLC
("CTE"), for which the Company provides management and consulting personnel.
B. CTE has interests in European CLEC telecommunication systems, which it
owns, directly or indirectly, through its affiliates, CableTel (Holland) Holding
B.V. ("CT Holland") and D2PC Communications S.A.R.L ("D2PC"). CTE, CT Holland
and D2PC, collectively, are referred to herein as "CableTel".
C. The Company wishes to employ Employee and Employee wishes to be
employed by the Company in key management and consulting positions of the
Company, CTE and its affiliate D2PC.
D. The Company and Employee, respectively, desire to enter into an
Employment Agreement under the terms and conditions contained herein.
AGREEMENT
In consideration of the rights and obligations created hereunder, the
parties agree as follows:
1. EMPLOYMENT AND ASSIGNMENT. This Agreement is made between the Company,
as employer, and the Employee, a U.S. Citizen and resident, and replaces and
voids any and all prior employment agreements made between the Company and
Employee.
The parties agree that Employee will be seconded to D2PC to work in its
Paris, France offices and acting in collaboration with Xxxxx X. Xxxxx, the
Company's chief executive officer ("CEO"). In consideration of his continued
employment by the Company, Employee agrees to discharge faithfully, diligently,
and to the best of his ability, the responsibilities of any position assigned
during his employment. Employee will be supervised, directed and evaluated by
the Company's CEO and the Board of Managers of CTE (the "Board") and the Board
shall be solely responsible for any decisions concerning discipline, termination
and pay increases.
This Agreement shall commence as of the Effective Date (as set forth in
Section 16) for an indefinite period subject to termination as specified in
Section 5. Notwithstanding anything herein to the contrary, Employee's
assignment in France shall not exceed four years.
2. TITLE; SCOPE OF RESPONSIBILITIES. Employee shall serve as President of
the Company, President of CTE and Strategic Consultant to D2PC pursuant to the
terms and conditions of this Agreement.
Except for his involvement in personal investments, provided such
involvement does not require any material services on his part, Employee shall
not engage in any other business activity or activities that
require material personal services by Employee or that, in the judgment of the
Board, may conflict with the proper performance of his duties hereunder.
3. COMPENSATION; BONUS; BENEFITS.
a. SALARY. For all services rendered by Employee hereunder, Employee
shall receive during the term of this Agreement a base salary, payable
semimonthly in arrears, at the annual rate of $175,000. The base salary shall be
reviewed annually by the Board at the end of each calendar year to determine if
any increase is appropriate.
b. BONUSES. At the end of each calendar year, in respect of all
services provided hereunder, Employee shall be eligible to receive an incentive
bonus as authorized by the Board pursuant to objectives set by the Board in an
amount up to 55% of Employee's base salary for such year, which amount on the
first anniversary of the Effective Date shall be $95,000, subject to Employee
having met the performance targets established by the Board.
c. FOREIGN ASSIGNMENT INCENTIVE PAYMENT. In consideration of
Employee's agreement to accept a foreign assignment, for such time as Employee
is assigned to work and is residing in France or any other non-U.S. location,
the Company shall pay Employee an incentive payment equal to 15% of the amount
of his base salary paid pursuant to Section 3(a).
d. BASIC BENEFITS. In addition to salary payments as provided in
Section 3(a), the Company shall provide Employee, during the term of this
Agreement, with the benefits of such insurance plans, hospitalization plans,
401(k) and supplemental retirement plans and other employee fringe benefit plans
as are approved by the Board, it being understood that such benefits shall be
comparable to those customarily provided to executive management personnel of
companies in the telecommunications industry of comparable size and value as
CableTel. The Company may provide the benefits described herein directly, by
having Employee participate in the Company's own benefits plan or the Company
may provide any portion of the benefits by reimbursing Employee for premiums he
pays to acquire such benefits under private plans agreed upon between Employee
and the Company.
Employee's immediate family (which for purposes of the Agreement shall
be deemed to consist of his wife and any dependent children) will be covered by
the benefits package described above to the same extent as such immediate family
members are covered for comparable senior executives of the Company in the U.S.
during the term of this Agreement.
In addition, Employee shall be reimbursed by the Company for the
reasonable costs of his advisors with respect to the negotiation of this
Agreement. Employee shall be entitled to sick leave and vacation in accordance
with the Company's established policies applicable to its employees generally,
provided that Employee shall be entitled to a minimum of four weeks vacation
each year. Benefits to be provided by the Company under Sections 5(d), (e) and
(f) after termination of this Agreement for the periods specified therein shall
include health insurance and long term disability insurance providing
substantially the same health insurance and long term disability insurance as
was provided to Employee at the time of the termination of this Agreement.
e. TAX EQUALIZATION.
(i) HYPOTHETICAL TAX DEFINED. The hypothetical tax is the
applicable income and social taxes that Employee would have paid with
respect to his compensation, bonus and benefits provided by the Company, if
living and working in his home country, without any foreign
assignment-related income and deductions. Employee will be responsible for
a hypothetical
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Colorado state income tax equal to what he would have paid had employee
remained in Colorado at the time of assignment. Hypothetical tax
withholding will be applied to base salary, bonus and any other
compensation elements Employee would have received had the Employee not
been assigned to a foreign assignment.
(ii) GENERAL PROCEDURE AND COMPUTATION OF HYPOTHETICAL TAX. The
Company will bear the overall worldwide tax burden of Employee to the
extent it exceeds Employee's hypothetical tax liability pursuant to
procedures and guidelines set forth in the Company's Tax Equalization
Policy ("Tax Policy") attached hereto as EXHIBIT A. As a result, the
Company, with the advice of third party tax consultants, reserves the right
to recommend that certain tax filing positions be taken and that various
elections be made on Employee's home and host-country individual income
tax returns in order to reduce Employee's tax burden. If Employee decides
not to accept these tax filing recommendations, Employee will then bear the
additional tax cost related to not taking the tax positions and/or
elections recommended by the Company.
Any home and host-country tax liabilities incurred by Employee,
with respect to his compensation, bonus and benefits provided by the
Company, in excess of the hypothetical tax liability will be paid by the
Company. Conversely, to the extent that any tax benefits (e.g., exclusions,
deductions, exemptions or credits) resulting from the international
assignment reduce the Employee's worldwide tax liabilities below the
hypothetical tax liability, the difference will benefit and be paid to the
Company pursuant to the Tax Policy.
The Company reserves the right, at any time, to change its Tax
Equalization Policy in any way it deems necessary to accomplish tax
equalization in the most efficient manner.
(iii) TAX POSITION CHALLENGES. It is the objective of the Company
that any employee covered by the Company's tax equalization policy pay the
least amount of tax legally possible. It is recognized that the tax laws of
the respective jurisdictions (federal, state, local and foreign) are not
always straightforward. Accordingly, the amount of tax an employee owes to
a jurisdiction may vary based upon how the relevant tax law is interpreted
and applied to the employee's facts and circumstances. In such situations,
it is the policy of the Company to engage professional tax advisors with
the objective of paying the least amount of tax legally possible.
It is recognized that a taxing jurisdiction may challenge tax
positions that achieve the Company's policy of tax minimization. If a tax
position taken with respect to Employee is challenged, the Company will pay
the professional costs involved with the examination and defense of the
position, and any taxes, penalties or interest resulting from the position.
Payment of taxes, penalties and interest is limited to compensation paid
under this Agreement by the Company. Employee is responsible for any taxes
and interest on any item other than the Company compensation.
The tax equalization of any tax deficiencies, penalties and
interest applies if it is attributable to a period of time Employee was
covered by the Company's Tax Equalization Policy, even if Employee no
longer is employed by the Company when the examination or tax deficiency
arises.
(iv) IRC SECTION 911 - ELECTION TO EXCLUDE CERTAIN COMPENSATION.
Employee's worldwide income tax burden will equal his hypothetical tax. On
a U.S. individual income tax return, an expatriate employee with
host-country-source earned income who meets special detailed requirements
may elect to exclude certain amounts of his host- country earned income
from inclusion in his U.S. return. The election to exclude such income
impacts the ability to minimize
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the overall worldwide tax burden attributable to an expatriate employee.
Since the Company bears the overall worldwide tax burden of Employee to the
extent it is more than Employee's hypothetical tax, the Company reserves
the right to elect the foreign earned income exclusion (Internal Revenue
Code Section 911).
The determination of whether such an election should be made will
be the decision of the Company and the Company's appointed tax consultant,
such that the Company's overall expatriate employment tax cost is minimized
by such election. The benefits of this election appropriately accrue to the
Company, since the expatriate employee will never bear more or less tax
than the hypothetical tax.
This Section 3(e) is intended to survive any termination pursuant to
Sections 5(a), (b), (d), (e), (f) or (g).
f. RELOCATION EXPENSES. The Company will pay the reasonable costs
(which will include the reasonable costs of insurance) of relocating Employee
and his immediate family from their home in the U.S. to France, including
airfare for Employee and his immediate family, the cost of shipping Employee's
household effects to France including insurance coverage, the cost of U.S.
transportation and storage for items that cannot be moved, the cost of air
shipping up to 500 pounds of personal effects needed before other goods arrive
by ship, living expenses for Employee and his family for a period of up to 30
days after their relocation to France or until Employee has located housing in
France, whichever is less; and if Employee begins work in France before his
family moves there, one week of paid leave and round-trip airfare for Employee
to return to the U.S. to assist his family with the move.
For purposes of this Agreement, all airfares paid by the Company for
travel by Employee and his immediate family will be in business class.
g. COST OF LIVING ADJUSTMENTS. The Company will pay Employee a cost
of living adjustment, reflecting the difference in the cost of goods and
services in France as opposed to the U.S. as determined by Runzheimer
International or such other source as the parties shall agree upon, in the
initial amount of ________ per month during each month that Employee resides in
France during the term of this Agreement. The Company will conduct a review of
factors which could have an impact on Employee's cost of living in France at the
end of each six-month period during the term of this Agreement, to determine
what adjustment of the monthly cost of living payment, if any, is necessary or
appropriate to reflect material changes in the cost of living in France. For
purposes of this paragraph, cost of living shall be deemed to refer to factors
affecting the costs of goods and services in France.
h. U.S. VISITS AND EMERGENCY LEAVE. For U.S. visits, the Company
shall pay airfare up to a maximum amount per year equal to the cost of one
business class round trip per year between France and the U.S. for Employee and
his immediate family. In addition, the Company shall provide reasonable paid
emergency leave to Employee in the case of serious injury or death to Employee
or any member of his immediate family or the parents or brothers and sisters of
Employee and his wife and, in connection with any such emergency leave, shall
pay airfare up to a maximum amount per year equal to the cost of one business
class round-trip airfare between France and the U.S. for Employee and his
immediate family.
i. Business Expenses. The Company shall pay or shall reimburse
Employee for reasonable and necessary business expenses incurred by Employee to
carry out Employee's duties under this Agreement which are documented in
accordance with Company policy.
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4. OTHER PAYMENTS. Additionally, in consideration of Employee's agreement
to accept the foreign assignment, the Company will do the following:
a. TAX RETURN PREPARATION. For such period of time as Employee's tax
return shall be affected by the provisions hereof, the Company will pay the cost
to prepare all U.S. (including any applicable state) and foreign tax returns
which must be filed as a result of Employee's acceptance of the foreign
assignment, by an accounting firm selected by the Company, and provided that
Employee agrees to comply with the Company's Tax Equalization Policy including
requirements that the Employee make certain tax elections designed to minimize
the Company's tax equalization costs. This Section 4(a) is intended to survive
any termination pursuant to Sections 5(a), (b), (d), (e), (f) or (g).
b. HOUSING. The Company will provide suitable housing (including
utilities) in France for Employee and his immediate family, recognizing
Employee's position with the Company and the size of Employee's family. The
Company will provide this benefit in the manner which is most tax-advantageous
to the Company.
c. TRANSPORTATION. The Company will provide suitable transportation
in France for Employee and his immediate family, recognizing Employee's position
with the Company and the size of Employee's family, equivalent to the full-time
use of two automobiles. The Company will provide this benefit in the manner
which is most tax-advantageous to the Company.
d. FOREIGN LANGUAGE TRAINING. The Company will provide training in
foreign languages for Employee and Employee's immediate family at a language
school selected by the Company.
e. PRIVATE SCHOOLING. If Employee determines that the State
education available to his children in France is not comparable to the public
education which they would have received in the United States, the Company will
pay all reasonable tuition fees and related costs (to the extent that such
related costs would not have been incurred in comparable circumstances in the
United States) incurred by Employee in sending his dependent children to an
appropriate private or other fee paying school in France. This benefit will be
available for children in grades kindergarten (the year prior to the first
grade) through grade 12. The Company will provide this benefit in the manner
which is most tax-advantageous to the Company.
f. PLANNING ADVICE. The Company will arrange for provision of legal,
estate planning and financial planning advice for Employee relating to
Employee's relocation and employment abroad, up to an aggregate ceiling (payable
directly by the Company) of U.S. [$______] per year.
g. OTHER RELOCATION EXPENSES. The Company will pay other expenses
reasonably incurred by Employee in relocating to the foreign assignment, up to
an amount equal to one month of Employee's base salary, to the extent such
expenses are not covered by other provisions of this Agreement, documented by
receipts to the extent practical, incurred within 30 days following the date on
which Employee's immediate family relocates and which are non-recurring expenses
necessary for and only incurred because of Employee's relocation (e.g appliance
replacement expense due to voltage differences).
h. TAX GROSS-UP. The Company will pay an incremental amount to
Employee to increase the amount of any incentive bonus received pursuant to
Section 3(b) hereof to the extent required to ensure that the total worldwide
tax paid by Employee on such bonus does not exceed the U.S. federal, FICA and
state tax Employee would have paid on such bonus if the full bonus were subject
only to U.S. tax.
i. U.S. RESIDENCE; AUTOMOBILE. Employee has chosen to retain his
principal residence, and to leave his personal automobiles, in the U.S. and
understands that Employee, and not the
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Company, shall be responsible for all expenses of maintaining such residence and
maintaining and storing such automobiles.
j. REPATRIATION. Upon termination of this Agreement pursuant to
Sections 5(a), (b), (d), (e), (f) or (g), or the earlier termination of
Employee's foreign assignment, the Company shall pay the reasonable costs of
repatriating Employee and his immediate family to their home in the U.S.,
including airfare for Employee and his immediate family, the cost of shipping
Employee's household effects back to the U.S., the cost of air shipping up to
500 pounds of personal effects needed before other goods arrive by ship, the
cost of transport and unpacking of stored property, and such other amounts as
set forth on SCHEDULE A hereto. Notwithstanding the foregoing, in the event
Employee terminates this Agreement pursuant to Section 5(g) for the purposes of
providing services to another employer on an international assignment, the
Company shall have no obligation to provide the repatriation benefits of this
Section 4(j).
5. TERMINATION. Employee's employment hereunder shall terminate on the
following terms and conditions:
a. DEATH. If Employee dies during the term of this Agreement, this
Agreement shall terminate as of the date of Employee's death. The Company shall,
within 180 days after the date of Employee's death, make a cash lump-sum payment
(less applicable withholding taxes) to his estate in an amount equal to the
salary (at the level payable in the year of Employee's death) that would have
been payable either for the period of time extending from the date of death to
the date 18 months after the Initial Closing Date (as defined in Section 17), or
for the nine months next following the date of death, whichever period of time
is longer.
b. DISABILITY. If during the term of this Agreement Employee becomes
disabled, the Company may terminate Employee's assignment in France and return
Employee and his immediate family to the U.S. and the Company may terminate this
agreement 30 days after receipt by Employee or his duly appointed legal
representative of Notice of Termination (as defined below). For purposes of this
Section 5(b), Employee shall be "disabled" if he is unable to effectively
perform his duties hereunder by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.
If this Agreement is terminated under this Section 5(b), Employee shall continue
to receive his base salary (at the level payable in the year of termination)
either for the period of time extending from the date of termination of
employment to the date 18 months after the Initial Closing Date, or for the nine
months next following the date of termination, whichever period of time is
longer.
For purposes of this Agreement, a "Notice of Termination" means a written
notice from the Company which (a) indicates the specific termination provision
in this Agreement relied upon, (b) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Employee's employment under the provision so indicated and (c) to
the extent applicable, sets forth the date of termination.
c. CAUSE. The Company may terminate this Agreement for "cause" upon
receipt by Employee, or on such later date as shall be specified, of Notice of
Termination stating that termination is pursuant to this Section 5(c). For
purposes of this agreement, "cause" shall be defined as any of the following:
(i) any act by Employee, where in respect of such act Employee is ultimately
convicted or enters a plea of guilty or NOLO CONTENDERE to a felony; (ii)
Employee's willful misconduct, gross negligence, perpetration of or
participation in a fraud, in each case where such acts are materially injurious
to the Company or any of its subsidiaries or any affiliate thereof, or (iii)
Employee's material breach of Sections 5 (Confidentiality) or Section 6
(Noncompetition and Nonsolicitation) of the Executive Securities Agreement dated
as of May 18, 1998 by and between CTE and Employee, in each case where
Employee's acts are
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materially and demonstrably injurious to the Company or an Affiliate (as defined
below). If this Agreement is terminated for cause, Employee's rights hereunder
shall cease immediately on the date of such termination.
For purposes of this Agreement, the term "Affiliate" means a
person, firm or corporation that directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with, the
Company.
d. NONPERFORMANCE. The Company may terminate Employee's employment
in the event of Nonperformance. The term "NONPERFORMANCE" shall mean the
occurrence of any of the following:
(i) the repeated failure or refusal in any material respect of
Employee to perform his duties hereunder or to follow, in a manner
reasonably acceptable to the Board, policies or directives established by
the Board;
(ii) the failure of the Company and its subsidiaries to achieve
financial, operating or other performance objectives formally established
by the Board in an approved business plan or operating budget (which may be
embodied in any board resolution or in any document approved by the Board
such as a business plan or budget) together with a determination by the
Board that Employee's performance or failure to perform has been a material
factor in the failure of the Company and its subsidiaries to achieve such
performance objectives; or
(iii) the failure of Employee to achieve specific, formally
adopted performance objectives established by the Board after consultation
with Employee and good faith consideration by the Board of Employee's
expressed views of the objectives;
PROVIDED, that Employee's continued willingness to live and work in France or
any other country shall not be the basis for establishing "Nonperformance"
hereunder unless Employee's failure to live and work in France or another
country in which CableTel operates is, in the good faith determination of the
Board, a material contributing factor to the existence of the circumstances
described in (ii) and/or (iii) above.
Prior to any termination of Employee's employment for Nonperformance,
the Board shall meet in formal session (but without the attendance of Employee)
upon proper notice to consider the matter of Employee's performance after which
the Board may deliver to Employee written notice (a "NONPERFORMANCE NOTICE")
stating that the Board believes Nonperformance has occurred. Employee shall have
at least 15 calendar days to prepare for a meeting with the Board, at which time
Employee may present any information on market and competitive conditions and
any other factors bearing upon his performance. In assessing Employee's
performance, the Board shall give due consideration to such conditions and such
other factors and shall work with Employee in good faith to establish criteria
which, if satisfied by Employee within 35 days or such longer time as may
reasonably be necessary in view of the criteria (the "CURE PERIOD") after such
meeting, will prevent the Company from terminating Employee for Nonperformance
(until such time as another Nonperformance Notice shall be given and the
procedures set forth in this Section 5(d) shall be followed). It is understood,
however, that if Employee and the Board fail to agree on such criteria, such
criteria, and the length of the Cure Period if longer than 35 days, shall be
those established in good faith by the Board.
If Employee has failed to resolve the Nonperformance to the
satisfaction of the Board by the end of the Cure Period, Employee's employment
will be subject to termination at anytime thereafter immediately upon adoption
of a resolution to that effect by a majority of the entire Board and upon
delivery by the Company or the Board to Employee of written Notice of
Termination stating that termination is
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pursuant to this Section 5(d), which notice shall set forth the date of
termination and specifically identify the basis for the Board's belief that
Nonperformance has occurred and not been cured.
If Employee is discharged pursuant to this Section 5(d), this
Agreement shall immediately terminate at the date set forth in the Notice of
Termination and Employee shall be entitled to receive (i) within thirty days
after the date of termination, a cash lump sum severance payment equal to the
amount of his base salary (at the level payable in the year of termination) that
would have been payable either for the period of time extending from the date of
termination of employment to the date 18 months after the Initial Closing Date,
or for the nine months next following the date of termination of employment,
whichever period of time is longer, (ii) a continuation of his benefits as
specified in Section 3(b) for such period, and (iii) the benefits specified in
Sections 3(e), 4(a) and 4(j).
e. WITHOUT CAUSE. The Company may terminate Employee's employment
without cause by delivering to Employee a Notice of Termination stating that
termination is pursuant to this Section 5(e). If Employee is discharged without
cause, this Agreement shall immediately terminate at the date set forth in the
Notice of Termination and Employee shall be entitled to received (i) within
thirty days after the date of termination, a cash lump sum severance payment
equal to the amount of his base salary and bonus (at the level payable in the
year of termination) that would have been payable for the 24 months next
following the date of termination of employment, (ii) a continuation of his
benefits as specified in Section 3(d) for such period, and (iii) the benefits
specified in Sections 3(e), 4(a) and 4(j).
f. CHANGE OF CONTROL. If Employee's employment is terminated by the
Company or if Employee resigns after his salary, benefits or any other required
payments (including without limitation any payments pursuant to this Section 5)
are reduced below the minimum levels required by this Agreement or after being
assigned to a position of lesser title, authority or responsibility, in any such
case within a six-month period after the occurrence of a Change of Control, this
Agreement shall immediately terminate as of later of (i) the date next following
the date the Change of Control was effective or (ii) the date Employee resigned
or his employment is terminated. Any such termination shall be treated in the
same manner as a termination without cause pursuant to Section 5(e). Employee
agrees that payment of the amounts due in that event shall constitute liquidated
damages or severance pay or both.
A "Change in Control" will be deemed to have occurred if a person (as
defined in Section 18-101(12) of the Delaware Limited Liability Company Act),
who does not beneficially own (as defined below) any equity interest in CTE
entitled to vote in the election of Representatives to CTE's Board of Managers
("Membership Interest") on the Initial Closing Date, becomes the beneficial
owner of a Membership Interest with 51% of the voting power of all Membership
Interests. A "beneficial owner" is any person who, directly or indirectly,
through any contract, arrangement, understanding, relationship, or otherwise has
or shares (i) the power to vote or direct the voting of such equity interest or
(ii) the power to dispose, or direct the disposition of, such equity interest.
g. BY EMPLOYEE. Employee may resign from his employment with the
Company at any time. In such event, this Agreement shall terminate immediately.
If Employee resigns pursuant to this Section 5(g), Employee's rights hereunder
shall cease immediately upon such resignation except as specified in Sections
3(e), 4(a) and 4(j).
6. FULL SETTLEMENT. In no event shall the Employee be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Employee under any of the provisions of this Agreement, but such
amounts shall be reduced by the amount Employee obtains from other employment.
The Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which Employee may reasonably incur as a result of any
contest by the Company or Employee of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of
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performance thereof (including as a result of any contest by Employee about the
amount of any payment pursuant to this Agreement), but only if Employee is
successful on the merits of any such contest, plus in each case interest on any
delayed payment at the applicable Federal rate provided for in Section
7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
7. LIMITATION ON PAYMENTS. Notwithstanding anything in this Agreement to
the contrary, if the total payments or distributions by the Company to or for
the benefit of Employee would be subject to the excise tax ("Excise Tax")
imposed by Section 4999 of the Code, then the cash amounts payable to Employee
hereunder shall be reduced, in the manner agreed by the Company and the
Employee, to the extent necessary so that the total of all such payments shall
be $1.00 less than the amount that would trigger the imposition of the Excise
Tax.
8. WAIVER OF BREACH. A waiver by the Company of a breach of any provision
of this Agreement by Employee shall not be construed as a waiver of any breach
of another provision or subsequent breach of the same provision.
9. SEVERABILITY. The invalidity or unenforceability in any application of
any provision in this Agreement will not affect the validity or enforceability
of any other provision or of such provision in any other application.
10. NOTICES. All communications, requests, consents and other notices
provided for in this Agreement shall be in writing and shall be deemed given if
and when delivered personally by hand, sent by telecopy at the appropriate
number indicated below with electronic confirmation of receipt, or mailed by
first class mail, postage prepaid, addressed as follows:
a. If to the Company:
CableTel Management, Inc.
0000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Chief Executive Officer
with a copy to:
Madison Dearborn Partners
Three First Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx Xxxxxxxx
and to:
Xxxxxxxx X. XxXxxxxx
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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b. If to Employee:
Xx. Xxxxxxx X. Xxxxxxx
00, xxx xx Xxxxxxx
00000 Xxxxx, Xxxxxx
Facsimile No.: 011-33-1-44-31-2079
or to such other address or telecopy number as either party may designate by
notice pursuant to this Section 10.
11. JURISDICTION; VENUE; LIMITATION. The District Court of the County of
Arapahoe Colorado, United States of America, shall have exclusive jurisdiction,
including personal jurisdiction, and shall be the exclusive venue for any
controversies or claims arising out of Employee's employment by the Company or
out of this Agreement, except as otherwise agreed by the parties. Any action or
proceeding to enforce the provisions of this Agreement, or to recover damages
from the alleged breach of any provisions of this Agreement shall be commenced
within six months of a party's first notice of a breach by the other party.
12. GOVERNING LAW. This Agreement and all matters and issues collateral
thereto shall be governed by the laws of the State of Colorado, United States of
America.
13. ASSIGNMENT. The Company may, with the written consent of Employee,
assign its rights and delegate its obligations under this Agreement to any
Affiliate or to any acquirer of substantially all of the business of the Company
whether through merger, purchase of assets, purchase of stock or otherwise.
Otherwise, neither party may assign any rights or delegate any duties under this
Agreement. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective legal representatives, heirs, and permitted
successors and assigns.
14. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties and supersedes all prior understandings, agreements
or representations by the parties, written or oral, that relate to the subject
matter of this Agreement.
15. AMENDMENTS. No provision of this Agreement may be amended or waived
except by an instrument in writing signed by the Employee and the Company (after
obtaining Board approval).
16. EFFECTIVE DATE. This Agreement shall be effective as of January 1,
1998.
17. INITIAL CLOSING DATE. As used herein, "Initial Closing Date" shall
have the meaning set forth in Section 1C of the Equity Purchase Agreement by and
among CTE, Employee and the other Purchasers named therein.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement the 18th day of May, 1998.
COMPANY:
CABLETEL MANAGEMENT, Inc.,
a Colorado corporation
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx
Chief Executive Officer
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
(Signature page to Xxxxxxx X. Xxxxxxx Employment Agreement)
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