Exhibit 10.5
SECONDMENT AGREEMENT
THIS AGREEMENT, is made as of April ___, 2001, by and among CableTel
Management, Inc., a Colorado corporation (the "Company"), Xxxxxxx X. Samples,
a U.S. citizen and resident of the United Kingdom (the "Executive") and
CompleTel Headquarters UK Ltd. , a company with limited liability organized
under the laws of the United Kingdom ("CompleTel UK").
RECITALS
A. The Executive is currently employed by the Company pursuant to an
Employment Agreement by and between the Executive and the Company dated as of
February 26, 2001 ("Employment Agreement").
B. CompleTel UK is a wholly owned subsidiary of CompleTel Europe,
N.V., a Netherlands public company ("CompleTel Europe"), and performs
management services for CompleTel Europe and its other subsidiaries.
C. The Company wishes to second the Executive to CompleTel UK for a
limited period of time, the Executive is willing to be seconded and CompleTel
UK wishes to use the services of the Executive for a limited period of time;
and
D. The Company and CompleTel UK wish to enter into an agreement
governing the terms and conditions of the secondment.
AGREEMENT
In consideration of the rights and obligations created hereunder, the
parties agree as follows:
1. SECONDMENT.
(a) The Company agrees to second the Executive, the Executive
agrees to be seconded, and CompleTel UK agrees to use the services of the
Executive, pursuant to the terms of the Employment Agreement.
(b) The parties agree that, during the Secondment Period: (i)
the Executive shall remain an employee of the Company and the Company shall
continue to pay the Executive the salary and the other benefits set forth in
the Employment Agreement; and (ii) CompleTel UK shall reimburse the Executive
for all reasonable out-of-pocket expenses incurred by the Executive in
connection with the performance of his services to CompleTel UK consistent
with CompleTel UK's policy.
2. NON-COMPETE. Executive represents and warrants that, to the best
of his knowledge after a review of his personal files, he has the full right
and authority to enter into the
Employment Agreement and this Agreement and to render the services required
under the Employment Agreement and this Agreement, and that by signing the
Employment Agreement and this Agreement and rendering such services he is not
breaching any contract or legal obligation he owes to any third party;
PROVIDED that neither CompleTel UK nor CompleTel Europe shall require
Executive to use any trade secrets of any former employer. Neither Executive
nor CompleTel UK believe that any such trade secrets exist or, if they do,
that they would be necessary for Executive to perform fully his services to
CompleTel UK and CompleTel Europe hereunder.
Notwithstanding the foregoing, in the event a claim or action is
brought against Executive by his immediate preceding Employer (the
"Employer") based on post-termination restrictions contained in the his
employment agreement with said Employer, CompleTel UK agrees to assume the
reasonable legal costs and expenses directly related to any such claim or
action and to indemnify the Company against any costs and liabilities
associated therewith. Executive will notify CompleTel UK and the Company
immediately of any such claim or action, and CompleTel UK shall retain
counsel of its choice, in consultation with the Executive, and will assist
Executive in the defense of such action or claim. If requested, Executive
agrees to execute a joint defense agreement, as presented by CompleTel UK.
3. SERVICE FEE.
(a) In exchange for the Executive's performance of services for
CompleTel UK, CompleTel UK agrees to pay a service fee to the Company equal
to the cost to the Company of the Executive's compensation as set forth in
paragraph 1(b) above pursuant to the terms and conditions of that Joinder
Agreement to the Amended and Restated Management Services Agreement by and
among CompleTel UK and the Company, as it may from time to time be amended to
include any employer social taxes including UK employer National Insurance
contributions. The Company shall provide CompleTel UK with monthly
documentation of such fee, with a final reconciliation to be performed on an
annual basis within 120 days of the end of the calendar year.
(b) The Company shall invoice CompleTel UK monthly for the
service fee for the previous month. CompleTel UK agrees to pay all such
invoices promptly, but not later than thirty days after CompleTel UK receives
such invoices in accordance with the other payment instructions thereon.
4. TERMINATION. This agreement shall terminate upon the termination
of the Employment Agreement.
5. INDEMNIFICATION. In connection with the secondment, CompleTel UK
shall at all times provide, and shall cause CompleTel Europe to provide, for
the indemnification (to the extent permitted by applicable law) of Executive
for cost and liabilities incurred in litigation against Executive in his
capacity with CompleTel UK hereunder or as an officer or director of
CompleTel Europe and its subsidiaries.
6. SURVIVAL. The rights and obligations of the parties hereto shall
survive the term of the Executive's secondment under this Agreement to the
extent that any performance is required under this Agreement after the
expiration or termination of such term.
7. NOTICES. All notices, demands and other communications provided
for by this Agreement shall be in writing and shall be deemed to have been
given at the time the same is delivered in person, sent by facsimile at the
appropriate number indicated below with electronic confirmation of receipt,
or mailed by registered or certified mail addressed as follows:
To the Company: CableTel Management, Inc.
0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: + 000-000-0000
Attn: Xxxxx X. Xxxxx
To CompleTel UK:
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Fax: +
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Attn:
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To the Executive: Xxx Samples
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Any party wishing to change the address to which notices, requests,
demands and other communications under this Agreement shall be sent, shall
give written notice of such change to the other parties.
8. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the Company, CompleTel UK, and their successors and
assigns, including, without limitation, any person, partnership, corporation
or other entity which may acquire all or substantially all of the Company's
or CompleTel UK's assets and business or into or with which the Company or
CompleTel UK may be merged or consolidated, and upon the Executive, his
heirs, executors, administrators and legal representatives. The Executive
shall not have any right to commute, anticipate, encumber, assign or dispose
of his right to any payment under this Agreement prior to receipt thereof and
shall not have the right to assign his obligations under this Agreement.
9. ARBITRATION.
(a) All disputes arising out of or in connection with this
Agreement shall be finally settled under the Rules of Arbitration of the
International Chamber of Commerce (the "Rules"). The arbitration shall take
place in London and shall be conducted by a sole arbitrator selected by the
parties to this agreement or, if the parties fail to agree on an arbitrator
within the time period permitted for such agreement under the Rules, selected
in accordance with the Rules. The arbitration shall be conducted in English.
(b) The Company may, without any inconsistency with the
Arbitration provisions of this Agreement, seek from a court any interim or
preliminary injunctive relief that may be necessary to protect the Company's
rights to protect confidential or proprietary information or prevent
competition or solicitation by Executive in contravention of this Agreement
pending the arbitrator's determination of the merits of the controversy. In
any such injunctive proceeding, Executive acknowledges access to certain
confidential and proprietary information is subject to potential misuse in a
manner that could cause irreparable damage to the Company.
10. 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, subject to any United Kingdom labor law provisions
that may apply in the case of an employee seconded to the United Kingdom by
an employer not established in the United Kingdom.
11. WAIVER. The failure of either party to insist in any one or more
instances upon performance of any term, covenant or condition of this Agreement
shall not be construed as a waiver of future performance of any such term,
covenant or condition, but the obligations of either party with respect to such
term, covenant or condition shall continue in full force and effect.
12. SEVERABILITY. Each provision of this Agreement shall be
interpreted where possible in a manner necessary to sustain its legality and
enforce ability. The unenforceability of any provision of this Agreement in a
specific situation, or the unenforceability of any portion of any provision
of this Agreement in a specific situation, shall not affect the
enforceability of (a) that provision or portion of provision in another
situation or (b) the other provisions or portions of provisions of this
Agreement if such other provisions or the remaining portions could then
continue to conform with the purposes of this Agreement and the terms and
requirements of applicable law.
13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties with respect to the subject matter
hereof and supersedes all prior written and oral agreements and
understandings between the Company, the Executive and CompleTel UK. This
Agreement shall not be amended orally, but only by a written instrument
executed by each party to this Agreement.
* * * * *
IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first written above.
COMPANY:
CableTel Management, Inc.
By:
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Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer
COMPLETEL UK:
CompleTel Headquarters UK Ltd.
By:
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Its: Manager
EXECUTIVE:
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Xxxxxxx X. Samples
