EXHIBIT 10.12
MASTER SECONDMENT BORROWED SERVANT AGREEMENT
This Master Secondment Borrowed Servant Agreement (this "Agreement") is
entered into as of this 1st day of November, 1999, by and between PF Telecom
LLC, a Delaware Corporation ("PFT") and XX.Xxx Corp., a Delaware
Corporation ("PF").
WHEREAS, PFT currently owns approximately 32% of the outstanding equity
interests in PF;
WHEREAS, from time to time PF may have the need for additional personnel to
assist in the operation of the business of PF and the facilities owned by PF;
and
WHEREAS; from time to time PFT may be able to supply personnel skilled in
the operation of businesses and the type of facilities owned by PF.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. TERM. The term of this Agreement shall begin as of November 1, 1999
and end on August 1, 2000. This Agreement may be extended on a
month-to-month basis thereafter upon the mutual written consent of PFT
and PF.
2. "AFFILIATES" DEFINED. The term "Affiliates" as used herein shall mean
any individual, corporation, partnership, limited liability company,
joint venture, or any other form of organization not specifically
listed herein that is directly or indirectly controlling, controlled
by or under common control with either party, provided that, in no
case, shall PF be deemed an Affiliate of PFT, nor shall PFT be deemed
an affiliate of PF. As used in this definition, the term "control" and
all of its derivatives shall mean the possession, direct or indirect
of the power to cause the direction of or direct the management and
policies of an individual, corporation, partnership, limited liability
company, joint venture, or any form of organization not specifically
listed herein, whether through ownership of voting securities, by
contract or otherwise.
3. SECONDED EMPLOYEES BORROWED SERVANTS. For the term of this Agreement,
PFT agrees to loan or to take the steps necessary to have its
Affiliates loan to PF on a full-time basis the individuals
(hereinafter the "Seconded Employees") listed in Exhibit "A" attached
hereto, as such exhibit may be amended from time to time with the
mutual consent of PFT and PF and for the term listed on such Exhibit
"A". Such Seconded Employees shall be "borrowed servants" of PF as the
term is defined by any applicable workers' compensation statute,
decision, regulation, or program, but shall remain employees of PFT or
its Affiliates as the general employer. PF shall provide to the
Seconded Employees sufficient office space,
supplies, and support to enable the Seconded Employees to perform
the tasks and duties assigned to them by PF ("Employee
Resources").
4. EMPLOYEES CONSENT. No Seconded Employee shall be allowed to
perform any task for PF unless that Seconded Employee previously
has acknowledged his or her consent to work for PF on a temporary
basis as a borrowed servant. Such acknowledgment shall be in the
form of the Employee Acknowledgment attached to this Agreement as
Exhibit "B".
5. CONTROL. All Seconded Employees shall be subject to the exclusive
direction and control of the management of PF throughout the term
and while seconded, shall otherwise be acting as employees loaned
to PF by PFT. PF shall have the right to assign a Seconded
Employee to work for an Affiliate of PF with the prior consent
of PFT. PFT shall have no right to direct or control the
Seconded Employees while such Seconded Employees are performing
duties for PF or its Affiliates under this Agreement.
6. CHANGE OF STATUS. PF may terminate the secondment relationship
with a Seconded Employee at any time upon providing PFT and the
Employee with 30 days prior written notice. With the consent of
PFT, PF may hire an Employee at any time to be an employee of PF
or its Affiliates.
7. WORKERS' COMPENSATION COVERAGE. PF shall supply workers'
compensation coverage for all employees performing services under
this Agreement. PF shall be responsible for the payment or
defense of all workers' compensation claims arising out of the
performance of services under this Agreement.
8. INDEMNIFICATION. PF shall be solely responsible for and shall
defend, indemnify and hold PFT, its Affiliates and all of their
officers and directors, employees, agents, representatives and
insurers and the Seconded Employees harmless from and against any
and all claims, demands, debts, fines, damages, judgments, loss,
expense, causes of action, regulatory actions, suits, attorneys'
fees, costs and liability of every kind including, but not
limited to, all special, indirect or consequential damages,
expenses of litigation, court costs and reasonable attorneys'
fees of PF, PFT, Seconded Employees or third parties imposed upon
or incurred by PFT and arising directly or indirectly out of the
performance of services under this Agreement or PF's business or
operations and, including, but not limited to claims of
discrimination, harassment, workers' compensation or any other
claim regarding the Seconded Employee's secondment to PF. PF
shall maintain liability insurance in an amount sufficient to
cover the above-described undertaking and shall name PFT, its
Affiliates and all of their officers and directors, employees,
agents, representatives and insurers and the Seconded Employees
as additional insureds.
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9. CHARGE FOR SERVICE. PF shall reimburse PFT within 30 days after
receipt by PF of a PFT invoice for all Employment Costs incurred
by PFT with respect to each Employee providing services under
this Agreement and for all travel and incidental costs incurred
by an Employee in accordance with the policies and procedures of
PF while performing his or her duties for PF and paid by PFT.
"Employment Costs" means an (either hourly, daily, weekly, or
monthly) agreed upon by PFT and PF in advance which shall
approximate the actual costs directly incurred by PFT or its
Affiliates, as the case may be, in respect of the employment of
each Seconded Employee, including the salary, benefits, bonuses,
payroll and payroll-related taxes, employer's pension
contributions, health insurance and other customary employee
benefits. PFT or its Affiliates, as the case may be, shall not
increase a Seconded Employee's Employment Costs except for
customary increases made in the ordinary course of business
consistent with past practice; provided, however, PFT shall give
PF at least 10 days prior written notice. For sake of clarity,
the amount of any bonuses and/or incentive compensation to be
paid to a Seconded Employee for such employee's contribution to
PF shall be determined at the sole discretion of PF and shall be
paid in a lump sum in the month awarded and not subject to the
monthly rate and PF agrees to reimburse PFT for such lump sum
payment. At the election of PFT and upon 30 days prior written
notice to PF, PF shall directly bear payroll and payroll-related
taxes for each Employee.
PF agrees to apply its best efforts in securing Employee
Resources as soon as possible, and in no event, shall the time to
secure Employee Resources exceed 60 days from the execution of
this Agreement. Until such time as PF is able to provide such
Employee Resources, PFT agrees to cooperate with PF in providing
General Offices Resources; provided, however, PFT shall be
entitled to reimbursement of General Office Resources Costs.
"General Office Resources" shall include, but not be limited to,
office space, telecommunication services, computer services,
secretarial support, access to general office equipment, and
office supplies. "General Offices Resources Costs" means a
monthly rate agreed upon by PFT and PF in advance which shall
approximate the actual expense directly incurred PFT or its
Affiliates, as the case may be, with respect to providing each
Employee with General Office Resources needed to perform the
tasks and duties assigned to him or her by PF.
10. EXCLUSIVE AGREEMENT. This Agreement shall supersede any prior
agreements between any of the parties dealing with the subject
contained herein.
11. COUNTERPARTS. This Agreement may be executed by the parties
simultaneously in one or more counterparts, each of which shall
be
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deemed an original, but all of which shall constitute one and the
same instrument.
12. ASSIGNMENT. No assignment or transfer by either party of its
rights and obligations under this Agreement will be made except
with the prior written consent of the other party to this
Agreement. This Agreement will be binding upon and will inure to
the benefit of the parties and their successors and permitted
assigns.
13. GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the laws of the State of Washington.
14. MISCELLANEOUS. This Agreement may not be amended, modified, or
supplemented except by written agreement of all of the parties.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of
this Agreement, and any such prohibition or unenforceability in
any jurisdiction will not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
law, the parties waive any provision of law which renders any
such provision prohibited or unenforceable in any respect.
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IN WITNESS WHEREOF, the parties hereto has caused this Agreement to be executed
as of the date first above written.
PF TELECOM LLC
By: /s/ Xxxx Xxxxx
----------------------
Print Name: Xxxx Xxxxx
--------------
Title: Managing Member
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XX.XXX CORP.
By: /s/ Xxxxx X. Xxxxxx
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Print Name: Xxxxx X. Xxxxxx
--------------------
Title: Vice President, Finance,
and Chief Financial Officer
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EXHIBIT "A"
NAME OF EMPLOYEE TERM OF SECONDMENT
Xxxxxxx Xxxxx November 1, 1999 to October 30, 2000
Xxxxx Xxxxx November 1, 1999 to October 30, 2000
Xxxxxx Xxxxxxxxx November 1, 1999 to October 30, 2000
Xxxxxxxx Xxxxx November 1, 1999 to October 30, 2000
Xxxxxx Xxxxx November 1, 1999 to October 30, 2000
Xxxx Xxxxx November 1, 1999 to October 30, 2000
Xxxxxx Xxxxxxxx November 1, 1999 to October 30, 2000
Xxxxxx Xxxxxx November 1, 1999 to October 30, 2000
Xxxx Xxxx November 1, 1999 to October 30, 2000
Xxxxxxx Xxxxxx November 1, 1999 to October 30, 2000
Xxxx Xxxxxxxx November 1, 1999 to October 30, 2000
Xxxx Xxxxxx November 1, 1999 to October 30, 2000
Xxxx Xxxxx November 1, 1999 to October 30, 2000
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EXHIBIT "B"
EMPLOYEE ACKNOWLEDGMENT
I am an employee of PF Telecom LLC ("PFT") or one of its subsidiaries
or divisions ("PFT"). I understand that, while performing work for XX.Xxx Corp.
or its Affiliates ("PF"), I will be a "borrowed servant" (as the term is defined
by any applicable workers' compensation statute, decision, regulation or
program) of PF. As a "borrowed servant," I understand that, if I am injured on
the job, I will have the right to file a claim for worker's compensation
benefits with PF. However, I understand that my compensation and employment
benefits will be paid by PFT and reimbursed by PF and that I will not
participate in any employee benefit plan maintained by PF.
I further understand that persons within the employ of PF (or their agents)
will supervise and control my actions while I am performing work for PF.
I also understand that this acknowledgment is not an employment contract or
a guarantee of continued employment, nor does it change my status as an
employee-at-will. This acknowledgment supersedes and replaces any similar
acknowledgment or employment agreement that I may have previously signed. I
understand, further, that PF has the right to terminate my "borrowed servant"
status upon providing me with at least 30 days prior written notice.
I understand that I will be required to execute a confidentiality
agreement with PF.
Signature:___________________________________
Printed Name:________________________________
Date:________________________________________
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