EXHIBIT 10.3
RETENTION AGREEMENT
THIS RETENTION AGREEMENT dated as of March 15, 2002 and effective
as of February 1, 2002, is between Cabletel Management, Inc., (the
"Company") and Xxxx Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Company provides management and consulting personnel
to Completel Europe N.V., a Netherlands public company (together with its
subsidiaries "Completel Europe");
WHEREAS, the Company employs the Executive and has seconded him to
Completel Headquarters UK Limited to serve in the capacity of Managing
Director and Chief Financial Officer of Completel Europe;
WHEREAS, the Company recognizes the competitive nature of the
market for executive talent;
WHEREAS, Completel Europe is pursuing a number of alternatives,
including investments in Completel Europe by third parties and the
potential sale of Completel Europe and its subsidiaries or their operations
as an entirety, that may result in the restructuring of Completel Europe's
operations or capital structure (the "Restructuring"); and
WHEREAS, Completel Europe has determined that appropriate steps
should be taken to encourage certain key executives to remain employed by
the Company by providing for certain benefits;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree to the following:
1. Retention Incentive.
(a) The Company shall pay to the Executive a total sum of
$50,000.00 (the "Retention Amount") in five (5) equal, monthly installments
of $10,000.00 (each a "Retention Payment"), provided that the Executive
remains employed by the Company. The initial installment, for the months of
February and March, shall be paid to the Executive on the first business
day following the execution of and delivery of this Agreement and each
subsequent installment for a month shall be paid in advance on the first
business day of such month.
In addition to the afore-mentioned Retention Payments, the
Company shall pay to the Executive a sum of $100,000.00 no later than ten
(10) business days following the achievement of "Success," if any; provided
that the Executive remains employed by the Company on the date of such
achievement. Success is achieved if and when, Completel Europe has obtained
sufficient cash resources to fully fund its business plan to cash flow
breakeven.
(b) If prior to the fifth month following the date hereof (i)
the Company terminates the Executive's employment other than for death,
Disability or Cause or (ii) the Executive terminates his employment for
Good Reason, then the Company shall make a single payment to the Executive,
no later than ten (10) business days following such termination, equal to
the Retention Amount less the sum of all Retention Payments previously paid
to the Executive.
If prior to the fifth month following the date hereof (i) the
Company terminates the Executive's employment for death, Disability or
Cause or (ii) the Executive terminates his employment without Good Reason,
then the Executive shall repay to the Company the full amount of the
installment advanced for the month in which his employment ceased (it being
understood that payments to the Executive for the past full months of
employment shall not be repayable).
2. No Effect on Other Contractual Rights. The provisions of this
Agreement, and any payment provided for hereunder, shall not reduce any
amounts otherwise payable, or in any way diminish the Executive's existing
rights (or rights which would accrue solely as a result of the passage of
time) under any employee benefit plan or employment agreement or other
contract, plan or arrangement, nor shall any amounts payable hereunder be
considered in determining the amount of benefits payable to the Executive
under any such plan, agreement or contract.
3. Successors.
(a) This Agreement is personal to the Executive and without the
prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
4. Miscellaneous.
(a) This Agreement and all matters and issues collateral
thereto shall be governed by the laws of the State of Colorado, United
States of America, subject to any United Kingdom labor law provisions that
may apply.
The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended
or modified otherwise than by a written agreement executed by the parties
hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: If to the Company:
-------------------- ------------------
Xxxx Xxxxxxx Cabletel Management, Inc.
00 Xxxxxxxx Xxxxxx 6300 S. Xxxxxxxx Xxx
Xxxxxx X0X 0XX Suite 320
England Xxxxxxxxx, Xxxxxxxx
00000
XXX
Attention: General Counsel
or to such other address as either party shall have furnished to the other
in writing in accordance herewith. Notice and communications shall be
effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable under
this Agreement such, National, Federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
(f) Words or terms used in this Agreement which connote the
masculine gender are deemed to apply equally to female executives.
5. Definitions. The capitalized terms used herein shall have the
meanings ascribed to them below.
(a) "Cause" shall mean (i) a reasonable, good faith
determination by the Company that the Executive engaged in an act or acts
of personal dishonesty intended to result in substantial personal
enrichment of the Executive at the expense of the Company, (ii) the
repeated, willful and deliberate failure by the Executive substantially to
perform the Executive's duties with the Company (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness) as determined by the Company, after a demand for substantial
performance is delivered to the Executive by the Company, which demand
specifically identifies the manner in which the Company believes that the
Executive has not substantially performed the Executive's duties or (iii)
the conviction of the Executive of a felony.
(b) "Disability" shall mean any illness, accident, injury,
physical or mental incapacity or other disability, where such condition has
rendered, or is expected to render (as determined in the good faith
judgment of the Board), the Executive unable or unfit to perform
effectively the duties and obligations of his employment or to participate
effectively and actively in the management of the Company for a period of
at least 90 days.
(c) "Good Reason" shall mean (i) any reduction by the Company
in the Executive's rate of base salary, as in effect on the date hereof or
as the same may be increased from time to time, (ii) the Company requiring
the Executive to be based at any geographic location other than the
geographic location where the Executive is employed on the date hereof, the
Company's headquarters, or a location where a substantial activity for
which the Executive has responsibility is located, except for travel
reasonably required in the performance of the Executive's responsibilities
or (iii) any failure by the Company to comply with and satisfy Section 3(c)
of this Agreement.
(d) "Retention Amount" has the meaning specified in Section
1(a).
(e) "Retention Payment" has the meaning specified in Section
1(a).
IN WITNESS WHEREOF, the Executive has hereunto set his hand and
the Company has caused these presents to be executed in its name on its
behalf, all as of the day and year first above written.
THE EXECUTIVE CABLETEL MANAGEMENT, INC.
By: _________________________ By: _________________________
