Exh 10.28
Dated 11th June 1999
(1) WEB INTERNATIONAL
NETWORKS LIMITED
(2) XXXXXX XXXXX
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SERVICE AGREEMENT
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THIS AGREEMENT is made the 11th day of June 1999
BETWEEN:
(1) Web International Networks Limited (the "COMPANY") (registered
number 3254557) whose registered office is at 00 Xxxxxxxxxxx Xxxx,
Xxxxxx XX0X 0XX
(2) Xxxxxx Xxxxx (the "EXECUTIVE") of 000x Xxxxxxxxxx Xxxx, Xxxxxx, X00 0XX
NOW IT IS HEREBY AGREED as follows:
1. DEFINITION
In this Agreement:
"ASSOCIATED COMPANY": in relation to the Company, any Holding
Company or Subsidiary of the Company and any other subsidiary of any
such holding company. Holding Company and Subsidiary shall have the
meanings set out in section 736 Companies Act 1985 (as amended);
"COMPLETEL": means CompleTel UK Limited (registered number 3578293)
whose registered office is at 0xx Xxxxx, Xxxxxxx Xxxxx, 00x Xxxxxxxxx
Xxxxxx, Xxxxxx XXX 0XX;
the"COMPLETEL GROUP": shall mean the Company, CompleTel and any
other Associated Company.
2. APPOINTMENT AND DUTIES
2.1. The Company will employ the Executive to head up its Web business with
a title to be agreed. The Executive's employment under this Agreement
will commence on the date of this Agreement and the Executive's period
of continuous employment commenced on 1st April 1999. The Executive's
employment will be for a fixed term ending on 30th April 2000 and
continuing thereafter until his employment is terminated by either
party giving not less than three months prior written notice to the
other subject to earlier termination as provided for below.
2.2. The Executive shall carry out all duties falling within the scope of
his job title together with such other duties as may reasonably be
assigned to him relating to the Company and shall hold such offices in
the Company for such period as the Company may direct. The
Executive's authority shall be limited as set out in the Schedule. On a
day to day basis, the Executive will report to the President of
CompleTel.
3. COMMITMENT OF EXECUTIVE
The Executive shall carry out his duties during normal business hours
(which are 9.00am to 5.30pm on weekdays) and at such other times are
reasonably necessary for their proper performance.
4. PLACE OF WORK
The Executive will initially be based at the premises of the Company at
Pall Mall Deposits, 000 Xxxxxx Xxxx, Xxxxxx, X00 0XX, but the Executive
shall if required to do so work in such other place or places (whether
on a temporary or permanent basis) in the United Kingdom as the Company
may require.
5. REMUNERATION
5.1. The Executive shall receive a basic salary accruing from day to day at
the rate of (pound)65,000 per annum to be paid by equal monthly
instalments on or about the last day of each calendar month by credit
transfer. The Executive's basic salary shall be reviewed (but without
commitment to increase) in January of each year.
5.2. The Company shall pay to the Executive a maximum bonus of (pound)12,187
(twelve thousand, one hundred and eighty seven pounds), being 25% of
his basic salary for the period from 1 July 1999 to 31 March 2000,
based on the performance of the Company as follows:
(i) not later than 30 October 1999 the sum of (pound)4,062 (four
thousand and sixty two pounds) if the Company achieves Revenue
of not less than (pound)301,600 in relation to the six months
from 1 April 1999 to 30 September 1999 ("the First Revenue
Target"), reduced to 50% of such sum if the Company achieves
not less than 95% but not as much as 100% of the first Revenue
Target and reduced to 20% of such sum if the Company achieves
not less than 90% but not as much as 95% of the First Revenue
Target;
(ii) not later than 31st January 2000 the sum of (pound)4,062 (four
thousand and sixty two pounds) if the Company achieves Revenue
of not less than (pound)328,517 in relation to the three
months from 1st October to 31st December 1999 ("the Second
Revenue Target"), reduced to 50% of such sum if the Company
achieves not less than 95% but not as much as 100% of the
Second Revenue Target and reduced to 20% of such sum if the
Company achieves not less than 90% but not as much as 95% of
the Second Revenue Target;
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(iii) not later than 30 April 2000 the sum of (pound)4,063 (four
thousand and sixty three pounds) if the Company achieves
Revenue of not less than (pound)385,800 in relation to the
three months from 1st January to 31st March 2000 ("the Third
Revenue Target"), reduced to 50% of such sum if the Company
achieves not less than 95% but not as much as 100% of the
Third Revenue Target and reduced to 20% of such sum if the
Company achieves not less than 90% but not as much as 95% of
the Third Revenue Target;
(iv) even if any one or more of the Revenue Targets referred to in
(i) to (iii) above are not achieved but the aggregate Revenue
of the Company in the period from 1st April 1999 to 31st March
2000 is equal to or exceeds (pound)1,015,917 then CompleTel
shall pay to Xxxxxx Xxxxx on 30th April 2000 the sum of
(pound) 12,187 less the aggregate of all amounts already paid
pursuant to (i) to (iii) of this clause.
For the purposes of this clause, "Revenue" shall mean: the aggregate
invoiced revenues of the Company for the relevant period (a "Bonus
Period") less any VAT or other sales taxes as shown in the management
accounts of the Company for the relevant months, prepared on a basis
consistent with the management accounts of the Company in the six
months immediately prior to the date of this Agreement. For the
avoidance of doubt, no bonus shall be paid in relation to any Bonus
Period if the Revenue in that Bonus Period is less than 90% of the
relevant Revenue Target.
5.3. In the event of any dispute as to whether or not any Revenue Target has
been achieved in any Bonus Period, the matter shall be determined by
the Company's auditors who in making their decision shall act as
experts and not as arbitrators and their decision shall be binding on
the parties to this Agreement. For the avoidance of doubt the above
bonus payments have been expressed as gross amounts and shall be
subject to deduction of income tax and national insurance in the normal
way.
5.4. No bonus shall be due to the Executive pursuant to clause 5.2 if the
employment of the Executive has terminated or notice to terminate has
been given prior to the date on which payment of the bonus is due in
relation to any Bonus Period, save that this clause shall not apply in
the event that the Executive's employment is wrongfully terminated by
the Company.
5.5. After the period ending 31st March 2000, the Company may pay to the
Executive a sum in addition to his salary, of up to 25% of his basic
salary (the "ANNUAL BONUS")based on the achievement of agreed targets
in each financial year of the Company or part financial year which sum
shall be payable within 30 days after the end of the relevant financial
year of the Company. Any entitlement to Annual Bonus shall be
conditional upon the Executive's remaining employed (and not being
under notice whether given by the Company or the Executive) on the due
date for payment.
5.6. The Company shall in addition to the sums stated above pay to Executive
(pound)650 per month (subject to deduction of tax and national
insurance) in lieu of making available to him a company car.
5.7. The Executive hereby agrees to indemnify the Company in respect of any
amount of income tax, including income tax to which the Pay As You Earn
system applies, and employee's national insurance contributions ("the
PAYE LIABILITY") (including any
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associated interest and penalties) arising in relation to this
Agreement, or in relation to the Sale and Purchase Agreement relating
to Web International Networks Limited between the Company and the
Executive dated the same day as this Agreement, or in relation to any
other agreement entered into between the parties.
5.8. To the extent that any PAYE Liability has not been deducted from the
Executive's salary, in the month when it is payable, the Executive
hereby authorises the Company to make deductions from subsequent salary
payments and to apply the amounts so deducted in reimbursing the
Company for such liability.
6. EXPENSES AND MOBILE PHONE
6.1. The Company shall reimburse the Executive the amount of all reasonable
expenses properly incurred by him in the performance of his duties,
subject to compliance with the appropriate procedures and to his
production, if required, of supporting documents satisfactory to the
Company.
6.2. The Company will provide the Executive with a mobile phone in
accordance with the Company's policy from time to time.
7. PENSION AND OTHER BENEFITS
7.1. The Executive is eligible to join the CompleTel's contributory pension
scheme (the "Pension Scheme"). Under the Pension Scheme, the Executive
contributes 5% of his basic salary and CompleTel contributes 12% of his
basic salary. The current terms and conditions of the Pension Scheme,
which is not contracted out of the State Earnings Related Pension
Scheme, are available from CompleTel.
7.2. If the Executive joins the Pension Scheme, his membership will be
subject to the terms and conditions governing the Pension Scheme from
time to time. CompleTel reserves the right to discontinue or amend the
Pension Scheme at any time in accordance with its rules.
7.3. Within 30 days of the date of this Agreement, the Company shall procure
that CompleTel LLC shall grant rights to Xxxxxx Xxxxx to 100 equity
units in CompleTel LLC comprising a combination of approximately two
third in common units and one third in incentive units and otherwise on
substantially the same terms of other employees of the CompleTel Group.
8. MEDICAL AND INSURANCE BENEFITS
During his employment the Company shall provide the Executive with the
following insurance benefits in accordance with the terms of the
relevant policy or plan taken out by the Company from time to time:
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(a) private medical expenses insurance for himself and for his
partner at the Company's expense; and
(b) permanent health insurance for the Executive if the Executive
joins the Pension Scheme;
(c) life assurance at four times annual base salary, if the
Executive joins the Pension Scheme and two times annual base
salary not if.
From time to time the Company may, at its sole discretion, change the
terms or the providers of the above policies and plans.
9. HOLIDAYS
9.1. In addition to normal public holidays the Executive is entitled to 25
working days paid holiday during each calendar year (save for the first
year following the date of this Agreement when the entitlement shall be
20 working days paid holiday) to be taken by the Executive at such
times as may be mutually convenient to the Executive and the Company.
Holiday shall accrue pro-rata throughout the calendar year but any
holiday entitlement remaining at the end of each calendar year shall
lapse.
9.2. On the termination of his employment the Executive will be entitled to
pay in lieu of any unused holiday entitlement and the Executive shall
repay to the Company pay received for holiday taken in excess of his
holiday entitlement, both calculated on the basis of 1/261 basic annual
salary for each day's holiday entitlement.
9.3. The Company may at any time require the Executive to take paid leave on
full salary and benefits during which time the Executive will not be
allowed access to any premises of the Company. Any entitlement to a
bonus under the bonus scheme referred to in Clause 5.2 and 5.5 may, at
the Company's discretion, be reduced pro-rata by reference to the
period of paid leave required to be undertaken by the Executive.
10. SICKNESS 0R INJURY
10.1. While absent from work on account of his ill health or injury the
Executive shall receive his basic salary and other benefits for an
aggregate absence of up to 90 working days in any calendar year,
subject to his producing appropriate doctor's certificates in respect
of any illness lasting more than 7 consecutive calendar days. Further
payments may be made at the discretion of the Company which may reduce
or discontinue these payments at any time. These payments will include
Statutory Sick Pay. Qualifying days for the purposes of Statutory Sick
Pay are Monday to Friday inclusive.
10.2. Where the Executive's absence exceeds 30 working days in any calendar
year any entitlement to a bonus under the bonus scheme in Clause 5.2
and 5.5 may, at the Company's discretion, be reduced pro-rata to the
total period of absence.
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10.3. The Company reserves the right to require the Executive to undergo a
medical examination at the Company's expense by a doctor nominated by
the Company at any time. The Executive authorises the doctor to
disclose the results of such examination to the Company provided such
disclosure is limited to matters which could in the doctor's opinion
affect the performance of the Executive's duties.
11. CONFIDENTIAL INFORMATION
During his employment with the Company and after its termination
(however it occurs) the Executive shall not (other than in the proper
course of his employment with the Company) use or disclose any
confidential information of the Company or any other company in the
CompleTel Group or any third party which the Executive may acquire
through his employment.
12. INTELLECTUAL PROPERTY
12.1. The Executive acknowledges that all intellectual property rights
subsisting in or attaching to anything conceived or created by him at
any time in the course of his employment with the Company whether
before or after the date hereof shall belong to and vest in the Company
absolutely to the fullest extent permitted by law without payment to
the Executive.
12.2. The Executive warrants that he has made no invention which would be
relevant to the business of the Company and undertakes to notify the
Company promptly of any invention made by him in the course of his
employment.
12.3. The Executive undertakes, at the request and expense of the Company, to
execute all documents and give all assistance as in the opinion of the
Company may be necessary or desirable to protect any intellectual
property rights referred to above and vest them in the Company
absolutely.
12.4. The Executive hereby irrevocably appoints the Company (or its nominee)
to be his Attorney in his name and on his behalf to execute all
documents and do all things necessary and generally to use his name for
the purpose of giving to the Company (or its nominee) the full benefit
of the provisions of this Clause and in favour of any third party a
certificate an writing signed by an employee or the secretary of the
Company that any instrument or act falls within the authority hereby
conferred shall be conclusive evidence that such is the case,
13. TERMINATION
13.1. The Company may by notice to the Executive terminate this Agreement
with immediate effect if the Executive:
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(a) is guilty of any gross misconduct or commits any serious or
persistent breach of his obligations to the Company; or
(b) is guilty of any conduct which in the reasonable opinion of
the Company brings him, the Company into disrepute; or
(c) is convicted of any criminal offence punishable with 6 months
or more imprisonment; or
(d) has a bankruptcy petition presented against him or makes any
arrangement (including a voluntary arrangement) or composition
with his creditors generally; or
(e) is of unsound mind or a patient for the purpose of any statute
relating to mental health; or
(f) is prohibited from holding any office which he holds in the
Company or resigns from any such office without the Company's
consent; or
13.2. To investigate a complaint of misconduct against the Executive the
Company may suspend him on full pay and benefits for as long as
necessary to carry out a full investigation.
13.3. If the Executive is unable to perform his duties by reason of injury or
ill health for periods aggregating at least 90 days in any period of 12
consecutive calendar months the Company may terminate this Agreement by
giving the appropriate period of statutory minimum notice.
14. OBLIGATIONS ON TERMINATION
14.1. On the termination of the Executive's employment, and/or if the Company
invokes Clause 9.3 the Executive shall immediately return to the
Company all client lists, client files, plans, statistics, documents,
records, papers or property of whatsoever nature (including keys,
books, materials, computer hardware or software and credit cards) in
his possession or control which relate in any way to the business or
affairs of the Company and any other company in the CompleTel Group or
any of their clients or suppliers and no copies, notes or abridgements
of any of the above shall be retained by him.
14.2. After the termination of his employment, and/or if the Company invokes
9.3 the Executive shall upon the request of the Company resign without
claim for compensation from all offices held by him in the Company and
any other company in the CompleTel Group and should he fail to do so
the Company is hereby irrevocably authorised to appoint some person in
his name and on his behalf to sign and execute all documents or things
necessary to give effect to the resignation(s).
14.3. The Executive shall reimburse the Company full costs of any training
courses and examinations taken by the Executive during the 12 months
immediately prior to
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termination. A record will be kept by the Company of all such costs.
The Company reserves the right to deduct such costs from the
Executive's salary and any other sums due to the Executive on or around
the termination of employment.
15. PREVENTION OF UNFAIR COMPETITION
15.1. The Executive shall not during his employment be employed, engaged,
concerned or interested (whether directly or indirectly and in whatever
capacity) in any business activity except with the prior consent in
writing of the Company.
15.2. After the termination of the Executive's employment, however it occurs:
(a) for the period of one year next after such termination he
shall not (directly or indirectly) on his own behalf or in any
capacity on behalf of any other person, firm, company or
association canvass or solicit or do business of any kind
transacted by the Company with which he was concerned during
his employment from or with any person, firm, company or
association who or which was, at any time during the period of
two years immediately preceding such termination, a client of
the Company or any other member of the CompleTel Group and
with whom the Executive personally dealt in the course of his
employment; and
(b) for the period of one year next after such termination the
Executive shall not (directly or indirectly) on his own behalf
or in any capacity on behalf of any other person, firm,
company or association in connection with any business of a
kind transacted by the Company offer to or actually employ or
engage or enter into partnership with any person who was
employed by the Company or any other member of the CompleTel
Group within the period of tyro years prior to such
termination and with whom he had personal contact unless such
offer or employment or engagement takes place three months or
more after that person has ceased to work for the Company; and
(c) For the period of one year ( if the termination is by Xxxxxx
Xxxxx) or six months (if the termination is by the Company)
next after such termination the Executive shall not (directly
or indirectly) on his own behalf or in any capacity on behalf
of any other person, firm, company or association in
connection with any business of a kind transacted by the
Company or any other company in the CompleTel Group with which
the Executive had regular involvement in the year preceding
such termination carry out any work or be engaged in any
business in competition with the Company or such company in
the CompleTel Group.
15.3. The Executive may notwithstanding the other provisions of this clause
hold securities which are quoted on a recognised investment exchange
for investment purposes only provided his shareholding does not exceed
1% of any company's issued share capital or having an interest in
securities in a private limited company provided that such company's
business is not competitive with that of the Company or any other
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company in the CompleTel Group and further provided that such
investment does not result in the Executive failing to fulfil his
duties under this Agreement.
15.4. Each of the above restrictions are entirely separate and severable.
16. GRATUITIES
The Executive shall not directly or indirectly accept any commission,
rebate, discount or gratuity in cash or in kind from any person who had
or is having a business relationship with any company in the CompleTel
Group.
17. FOREIGN CORRUPT PRACTICES ACT
The Executive acknowledges that he has been provided with and has read
the Company's written policy with respect to compliance with the US
Foreign Corrupt Practices Act ("FCPA") and understands the provisions
of the FCPA and the Company's policy, and that he will comply in all
respects and will not make, or offer to make, or direct others to offer
or make payments or give anything of value, directly or indirectly, to
an official of the British or any foreign government or political party
for the purpose of influencing a decision to secure or maintain
business for any person. Furthermore, the Executive confirms that
should be learn of or have reason to know of any such payment, offer,
or agreement to make a payment to a government official, political
party, or political party official or candidate for the purpose of
maintaining or securing business for the Company or any company in the
CompleTel Coup, he will immediately advise the Board of his knowledge
or suspicion.
18. NOTICES
Any notice given under this Agreement shall be deemed to have been duly
given if given personally by the Company to the Executive or if sent by
either party by registered post addressed to the other parry (in the
case of the Company its registered office for the time being and in the
case of the Executive his last known address) and such notice shall be
deemed to have been given on the third day following that on which it
was posted.
19. GRIEVANCE PROCEDURE
The Executive should refer any grievance relating to his employment
(other than one relating to a disciplinary decision) to the president
of CompleTel and if the grievance is not resolved by discussion between
them it will be referred to the Chairman of the Board for resolution.
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20. GENERAL
20.1. This Agreement contains all the terms of and relating to the employment
of the Executive and replaces all previous contracts of employment
express or implied between the Company or any other company in the
CompleTel Group and the Executive, all which shall be deemed to have
been terminated by mutual consent as from the date on which the
Employment commenced.
20.2. The Executive warrants that by entering into this Agreement he will not
be in breach of any agreements with or obligations owed to any third
party.
20.3. The Executive hereby irrevocably appoints the Company to be his
attorney and in his name and on his behalf and as his act and deed to
sign, execute and do all acts, things and documents which he is obliged
to execute and do under the provisions of this Agreement.
20.4. This Agreement shall be governed by and construed in accordance with
the laws of England and Wales. The parties agree to submit to the
non-exclusive jurisdiction of the English Courts.
IN WITNESS whereof the Company has signed this Agreement under the hand of an
authorised official and the Executive has executed this Agreement as a Deed
Dated: 11th June 1999
SIGNED by )
duly authorised for and on behalf of )
WEB INTERNATIONAL )
NETWORKS LIMITED )
EXECUTED as a DEED by )
XXXXXX XXXXX in the )
presence of )
Name:
Address:
Occupation:
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THE SCHEDULE
LIST OF ACTIONS REQUIRING THE PRIOR APPROVAL
The Executive shall not, and shall not cause or permit the Company or any
Subsidiary to, do or undertake, or agree or commit to do or undertake, any of
the following actions, directly or indirectly, without the prior written consent
of either the Board, the President of CompleTel (currently Xxx Xxxxxx), or where
the matter is outside the authority of the President of CompleTel, the President
of European Operations CompleTel LLC (currently Xxxxxxx Xxxxxxx), save to the
extent that any of the following matters are provided for in the Approved Budget
(as defined below) which shall be deemed constitute approval for these purposes:
a. incur any obligation or undertake any activity or expenditure outside
the Approved Budget, except for non-material transactions, i.e. any
transaction or series of transactions involving an aggregate annual
obligation or expenditure of less than (pound)15,000;
b. amend, waive or otherwise modify the Approved Budget or the Approved
Business Plan (as defined below);
c. enter into any agreement, arrangement or obligation that cannot be
terminated on twelve months' notice or less;
d. enter into, modify or terminate any contract or agreement with any
customer of the Company or any of its Subsidiaries that accounts for,
or can reasonably be expected to account for, more than (pound)50,000
of the Company's annual revenues;
e. enter into any agreements concerning the provision of transmission
lines, transmission capacity and/or switching capacity, whether the
Company or any of its Subsidiaries is the providing or receiving party;
f. enter into any agreement relating to material permits, approvals or
licenses issued to or by the Company or any of its Subsidiaries,
including, without limitation, telecommunications licenses;
g. enter into the ownership, active management or operation of any
business other than the provision of wireline telecommunications
services in markets in the United Kingdom expressly specified in the
Approved Business Plan;
h. make any loans or advances to, guarantees for the benefit of or
Investments in, any person, except for (i) reasonable advances to
employees or customers in the ordinary course of business, (ii)
acquisitions permitted under clause (i) below, and (iii) Investments
having a stated maturity of no greater than one year;
i. acquire any interest in any company or business (whether by a purchase
of assets, purchase of stock, merger or otherwise), or enter into any
joint venture;
j. merge or consolidate with any Person;
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k. sell, lease or otherwise dispose of any assets, where such assets
(together with all other assets disposed of by the Company and its
Subsidiaries in such transaction or a series of related transactions)
represent more than 10% of the consolidated assets of the Company and
its Subsidiaries (computed on the basis of book value, determined in
accordance with GAAP, or fair market value, determined by the Board),
or sell or permanently dispose of any material Intellectual Property
Rights;
l. liquidate, dissolve or effect a recapitalization or reorganisation in
any form of transaction;
m. establish or acquire any Subsidiaries:
n. create, incur, assume or suffer to exist Indebtedness on a consolidated
basis in an aggregate outstanding principal amount in excess
of (pound)25,000 at any time;
o. create, incur, assume or suffer to exist any Liens other than Permitted
Liens;
p. make any capital expenditure (including, without limitation, payments
with respect to capitalized leases, as determined in accordance with
GAAP under which the amount of an aggregate lease payments for all such
agreements exceeds (pound)25,000) in the aggregate on a consolidated
basis during any 12-month period;
q. enter into any leases or other rental agreements (excluding capitalized
leases, as determined in accordance with GAAP) under which the amount
of the aggregate lease payments for all such agreements exceeds
(pound)25,000 on a consolidated basis for any 12-month period;
r. change the Company's or any Subsidiary's fiscal year or change any of
the accounting principles or practices utilised by the Company or its
Subsidiaries, or select, retain, or amend, terminate or modify any
retention arrangement with any accounting firm engaged to audit the
Company's or its Subsidiaries' financial statements;
s. appoint or terminate, or enter into, modify or terminate any employment
or compensation agreement with, any employee with an aggregate annual
compensation in excess of (pound)25,000;
x. xxxxx or modify any pension, insurance or other employee benefits plan;
u. adopt any option plan or employee securities ownership plan or issue
any equity securities (including any options, warrants, or other rights
to acquire equity securities) to any employee;
v. enter into, amend, modify or supplement any agreement, transaction,
benefit plan, commitment or arrangement with any of the Company's or
any Subsidiary's executive officers, directors or Affiliates or with
any individual related by blood, marriage, or adoption to any such
individual or with any entity in which any Person or individual owns at
least a 2% beneficial interest, except for customary and reasonable
employment arrangements;
w. initiate litigation estimated to cost more than (pound)5,000 or enter
into any settlement of litigation or claim costing more
than (pound)5,000;
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x. directly or indirectly redeem, purchase or otherwise acquire any of the
Company's or any Subsidiary's capital stock or other equity securities;
y. authorise, issue or enter into any agreement providing for the issuance
(contingent or otherwise) of (i) any notes or debt securities
containing equity features (including without limitation any notes or
debt securities convertible or exercisable or exchangeable for capital
stock or other equity securities, issued in connection with the
issuance of capital stock or other equity securities or containing
profit participation features) or (ii) any capital stock or other
equity securities (or any securities convertible into or exercisable or
exchangeable for any capital stock or other equity securities);
z. issue or sell any shares of the capital stock or other equity
securities (including, without limitation, any warrants, options and
other rights to acquire such capital stock or other equity securities)
of any Subsidiary to any Person; or
For purposes of this Schedule, the following definitions shall apply:
(i) "AFFILIATE" of any particular Person means (A) any other Person
controlling, controlled, by or under common control with such
particular Person, where "control" means the possession, directly or
indirectly, of the power to direct to management and policies of a
Person whether through the ownership of voting securities, by contact
or otherwise, and (B) if such Person (other than the Company) is a
partnership, any partner thereof.
(ii) "APPROVED BUDGET" means the annual budget prepared on a monthly basis
prior to the beginning of each fiscal year for the Company and its
Subsidiaries for such fiscal year and approved by the Board and the
board of CompleTel [LLC].
(iii) "APPROVED BUSINESS PLAN" means the detailed business plan for the
Company and its Subsidiaries, as approved by the Board and the board of
CompleTel [LLC] as revised from time to time.
(iv) "GAAP" means generally accepted accounting principles in the United
Kingdom consistently applied.
(v) "INDEBTEDNESS" means at a particular time, without duplication, (A) any
indebtedness for borrowed money or indebtedness issued in substitution
for or exchange of indebtedness for borrowed money, (B) any
indebtedness evidenced by any note, bond, debenture or other debt
security, (C) any indebtedness for the deferred purchase price of
property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade
payables and other current liabilities incurred in the ordinary course
of business which are not more than six months past due), (D) any
commitment by which a Person assures a creditor against loss
(including, without limitation, contingent reimbursement obligations
with respect to letters of credit), (E) any indebtedness guaranteed in
any manner by a person (including, without limitation, guarantees in
the form of an agreement to repurchase or reimburse), (F) any
indebtedness under capitalised leases with respect to which a Person is
liable, contingently or otherwise, as obligor, guarantor or otherwise,
or with
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respect to which obligations a Person assures a creditor against loss,
and (G) any indebtedness secured by a Lien on a Person's assets.
(vi) "INTELLECTUAL PROPERTY RIGHTS" means all (A) patents, patent
applications, patent disclosures and inventions, (B) trademarks,
service marks, trade dress, trade names, logos amid corporate names and
registrations and applications for registration thereof together with
all of the goodwill associated therewith, (C) copyrights (registered or
unregistered) and copyrightable works and registrations and
applications for registration thereof (D) mask works and registrations
and application; for registration thereof, (E) computer software, data,
data bases and documentation thereof, (F) trade secrets and other
confidential information (including, without limitation, ideas,
formulas, compositions, inventions (whether patentable or unpatentable
and whether or not reduced to practice), know-how, manufacturing and
production processes and techniques. research and development
information, drawings, specifications, designs, plans, proposals.
technical data, copyrightable works, financial and marketing plum and
customer and supplier lists and information), (G) other intellectual
property rights and (H) copies and tangible embodiments thereof (in
whatever form or medium).
(vii) "INVESTMENT" as applied to an, Person means (A) any direct or indirect
purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including
partnership interests and joint venture interests) of any other Person
and (B) any capital contribution by such Person to any other Person.
(viii) "LIEN" means any mortgage, pledge, security interest, encumbrance, hen
or charge of any kind (including, without limitation, any conditional
sale or other title retention agreement or lease in the nature
thereof), any sale of receivables with recourse against the Company,
any of its Subsidiaries or any Affiliate, any filing or agreement to
file a financing statement as debtor under the relevant law other than
to reflect ownership by a third party of property leased to the Company
or any of its Subsidiaries under a lease which is not in the nature of
a conditional sale or tide retention agreement, or any subordination
arrangement in favour of another Person (other than any subordination
arising in the ordinary course of business).
(ix) "PERMITTED LIEN" means;
(A) tax liens with respect to taxes not yet due and payable or
which are being contested in good faith by appropriate
proceedings and for which appropriate reserves have been
established in accordance with GAAP;
(B) deposits or pledges made in connection with, or to secure
payment of, utilities or similar services, employee
compensation, unemployment insurance, pensions or other social
obligations;
(C) purchase money by way of security interest in any property
acquired by the Company or any Subsidiary to the extent
permitted under this Schedule ;
(D) interests or title of a lessor under any lease permitted under
this Schedule ;
(E) mechanics', materialmen's or contractors' liens or
encumbrances or any similar lien or restriction for amounts
not yet due and payable;
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(F) easements, rights-of-way, restrictions and other similar
charges and encumbrances not interfering with the ordinary
conduct of the business of the Company and its Subsidiaries or
detracting from the value of the assets of the Company and its
Subsidiaries; and
(G) security interests in the assets of the Company and its
Subsidiaries granted to the Company's and its Subsidiaries'
lenders to secure Indebtedness permitted under this Schedule.
(x) "PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organisation and a governmental entity
or any department, agency or political subdivision thereof.
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