EMPLOYMENT AGREEMENT
BETWEEN:
CompleTel Headquarters Europe SAS, with a share capital of 250,000 FF whose
registered office is at Tour Egee, 0-00 xxxxx xx x'Xxxxx, 00000 Xxxxxxxxxx Xxxxx
(Xxxxxx) ("the Company") registered at the Company Registry of Nanterre, under
number 421 604 505, represented by M. Xxxx-Xxxxxxxx Bouchaud, Vice President,
Human Resources Europe, pursuant to a power of attorney dated 16 January 2001
AND
Xx. Xxxxxx xx Xxxxx, born 27 May, 1961, of French nationality, residing at 00
xxxxxxxxx Xxxxxxxx, 00000 Xxxxx, social security number 1 61 05 34 172 238 - 37
("Xx. xx Xxxxx")
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RECITALS:
Xx. xx Xxxxx was hired by CompleTel SARL on 22 December 1998 as Managing
Director, with employee status, subordinate to the Manager of the Company, Xx.
Xxxxxxx Xxxxxxx.
On 29 January 1999, CompleTel SARL was transformed into a SOCIETE PAR ACTIONS
SIMPLIFIEE, thereafter named CompleTel SAS.
By decision of the shareholders, Xx. xx Xxxxx was nominated PRESIDENT of
CompleTel SAS on 1 March 1999.
Xx. xx Xxxxx'x term was renewed by a collective and unanimous decision of the
shareholders on 30 June 2000.
On 3 April 2000, he was also named, by collective and unanimous decision of the
shareholders, President of CompleTel Services SAS, which became on 26 April 2000
CompleTel Headquarters Europe SAS ("the Company").
Considering the evolution of the working relationship between Xx. xx Xxxxx and
the CompleTel Group, since he was employed by CompleTel SARL (now CompleTel SAS)
both parties have decided to redefine and formalize the contractual relationship
by transferring his initial employment contract to his new employer the Company.
THEREFORE
EMPLOYMENT:
As and from 1 January 2001, Xx. xx Xxxxx will hold in the Company, for an
unlimited term, the position of Chief Operating Officer, STATUT CADRE following
the provisions of THE CONVENTION COLLECTIVE DES TELECOMMUNICATIONS (The
CONVENTION COLLECTIVE) applicable to the Company.
His seniority in the Company will continue as and from 22 December 1998, the
date at which he was employed by the group.
Xx. xx Xxxxx agrees to respect the rules and regulations of the Company and to
follow all internal procedures.
The present contract cancels and replaces all previous contracts and amendments
contracted between Xx. xx Xxxxx and the Company or any other company within the
group in France prior to the date hereof. Consequently, the present agreement,
and any future amendments, will be the only valid contract between the parties.
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DUTIES:
Xx. xx Xxxxx shall perform his duties for the Company and any other company
within the CompleTel Group, and in particular the parent company CompleTel
Europe N.V., by reason of his wide knowledge of the telecommunications sector in
which the group operates.
As Chief Operating Officer, Xx. xx Xxxxx will have, amongst other duties, the
following:
- Definition and orientation of the development strategy for the Company's
operations on a European level, and in particular in France, Germany and
the United Kingdom, in accordance with the strategy defined and developed
by the parent company.
- To control and supervise the activity of central functional departments
connected to operations, and, in particular, the Information Technology,
Engineering and Purchasing departments.
- To follow through on the attainment of commercial and financial objectives
of the Company in terms of operations, as defined by the parent company.
As COO, Xx. xx Xxxxx shall perform his functions, in both France and abroad,
under the control and subordinated to the management of the parent company, and
in particular the CEO of the parent Company, Mr. Xxxxxxx Xxxxxxx, to whom he
shall report in detail on his activities and on a weekly basis. Xx. xx Xxxxx
must act within the limits of the instructions and directions given to him by
the CEO of the parent company, Mr. Xxxxxxx Xxxxxxx.
WORK LOCATION / TRAVEL:
As COO, Xx. xx Xxxxx will perform his duties mainly at the headquarters of the
Company, in Paris La Defense, but it is explicitly agreed between the parties
that this work location may be modified and transferred in any place within the
geographical area of the Company's activities, to wit the following countries:
France, Germany and the United Kingdom, without this change being considered a
substantial modification of the employment contract.
In conformity with article 6-4-1 of the CONVENTION COLLECTIVE, if the
implementation of geographical mobility implies that Xx. xx Xxxxx should move,
the expenses of the move will be paid by the employer, following the rules of
the Company.
If the change of workplace is outside France, Xx. xx Xxxxx shall continue to
benefit from the same level of Benefits and guaranties equivalent to those of
France as regards life or disability or loss of employment insurance, medical
coverage, employment and retirement plan.
Concerning retirement, Xx. xx Xxxxx shall keep the overall level of social
charges equivalent to that which he would have benefited from had he stayed in
France, as concerns the obligatory retirement plans and complementary retirement
plans.
FIXED COMPENSATION AND WORK TIME:
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As compensation for his services, Xx. xx Xxxxx will receive a fixed annual
salary of FRF 1 250 000, paid in 12 monthly installments at the end of each
month at the end of each month.
In conformity with article 13 of annex 3 of the CONVENTION COLLECTIVE
(concerning the reduction of working hours in the Telecommunications sector) and
considering (i) Xx. xx Xxxxx'x status as Manager holding a lasting technical
power over Operations (ii) his wide autonomy of judgement and initiative, (iii)
his entire responsibility regarding the time he spends carrying out his duties,
and (iv) the high level of his remuneration, this last criteria being fixed and
without further reference. In consequence, Xx. xx Xxxxx does not come under the
regulations concerning working hours and in particular regulations concerning
overtime.
VARIABLE COMPENSATION:
Over and above his fixed compensation, Xx. xx Xxxxx may receive a bonus of up to
50% of the base fixed annual salary. This bonus will be paid according to the
level of attainment of the objectives. The definition of the objectives will be
negotiated and set out every year with Xx. Xxxxxxx X. Xxxxxxx and will take the
form of a written and signed document which will be an amendment to the present
contract.
The criteria for evaluation and measurement of objectives will be set down in
the aforesaid amendment.
TRAVEL AND EXPENSES:
Xx. xx Xxxxx may be required to travel in France or abroad, for long or short
periods of time.
Xx. xx Xxxxx will be reimbursed for his travel and accommodation expenses
incurred in the pursuance of his duties, upon presentation of customary
invoices, and within the limits of the rules of the Company.
COMPANY CAR:
For the pursuance of his duties, the Company will make available to Xx. xx Xxxxx
a company car which will remain the property of the Company. This car will
remain at Xx. xx Xxxxx'x disposal for the duration of this contract. Xx. xx
Xxxxx may also use the car for personal uses, and this advantage will be
declared on his pay slip and submitted to social security contributions.
The insurance policy will be taken out by the Company, who undertakes to pay the
premiums.
Xx. xx Xxxxx shall inform the Company as soon as possible if anything should
happen to the car, within a maximum of 48 hours, so that the Company can engage
any necessary action.
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Xx. xx Xxxxx undertakes to keep the car in perfect condition. Upon termination
of the present contract, de Vitry undertakes to return the car, together with
the keys and papers, to the Company immediately.
PAID VACATION:
Xx. xx Xxxxx will be entitled, over and above the normal French bank holidays,
to 2,5 working days per months of employment. The time and duration of his
holidays will be determined by the necessities of his duties.
EXCLUSIVITY OF EMPLOYMENT:
During the entire term of the present contract, Xx. xx Xxxxx shall devote his
services exclusively to the Company, and will have no other professional
occupation, even should it be non-competitive, except with the prior consent of
the Company.
Xx. xx Xxxxx undertakes during the term of this Agreement, not to engage in any
activity which could be in direct or indirect competition with the business of
the Company, or be to the detriment of the Company.
TERMINATION:
Termination of the present contract comes under the laws and regulations in
force (in France). In particular, in case of termination of the contract by
either of the parties, a notice period of three months will be due.
However, there will be no notice or indemnity in case of termination for cause.
CONFIDENTIAL INFORMATION AND PROFESSIONAL SECRECY:
Xx. xx Xxxxx undertakes not to divulge to any person or entity, both during the
course of the present contract and after termination for whatever cause, any
confidential information which, if it were disclosed, could favor the interests
of competitors of the Company, to which he may have had access in the course of
his employment, concerning the activities or the financial situation of the
Company, or any other company or subsidiary of the Group to which the Company
belongs, or the clients of any of the aforesaid companies.
Xx. xx Xxxxx declares himself bound to absolute professional secrecy.
Xx. xx Xxxxx undertakes to preserve total secrecy regarding any information
which he may have access to in the execution of his duties or by his presence in
the Company.
PUBLICATIONS:
Xx. xx Xxxxx undertakes not to publish any study based upon the performance of
his duties for the Company or it's clients, or disclose any information, results
etc. which he may be made aware of within the course of his employment, without
the previous agreement of the Company.
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RESTITUTION AND USE OF THE COMPANY'S PROPERTY:
All material, information support and equipment which the Company may put at the
disposal of Xx. xx Xxxxx for the performance of his duties, and in particular
listings, documentation, correspondence, manuals, books, keys, credit cards, car
papers, cheque books and all other documents continue the property of the
Company, and must be returned upon request.
Xx. xx Xxxxx undertakes to make only professional use of all aforementioned
materials and equipment and to make no copies or reproductions, except by
express consent of the Company.
In addition, Xx. xx Xxxxx agrees to return all said property, materials, and
documents given to him, as well as any copy or reproduction in his possession as
of the date he leaves the Company, for any reason whatsoever, without the
Company having to give a prior request, formally or informally, for him to do
so.
ILLICIT PRACTICES AND PROFESSIONAL ETHICS:
Xx. xx Xxxxx acknowledges that he has received a copy of the Company's internal
procedures, concerning the respect of American legislation1 (Foreign Corrupt
Practices Act) regarding corruption, and that he has read and understood them.
Xx. xx Xxxxx undertakes to comply fully with these regulations and, in
particular, to make no payment or offer to make any payment of have another
party make any payment, of offer any valuables directly or indirectly, to any
official member of a foreign government or any political party in order to
obtain any contract or transaction on behalf of any person or entity.
Moreover, Xx. xx Xxxxx confirms that if he had knowledge of, or suspected any
such payment, offer or agreement towards such payment to the representative of a
government, political party or candidate in order to obtain a contract or
transaction for the Company or any other company within the Group, including
CompleTel LLC and any direct or indirect subsidiary of CompleTel LLC, he will
immediately inform the Company.
NON-COMPETE:
In accordance with article 4-2-4-1 of the Convention Collective, Xx. xx Xxxxx,
in the case of termination of the present contract for any cause, at the date of
termination, undertakes not to enter the employment of a competitor to the
Company, or to participate in any way, directly or indirectly in any capacity
whatsoever in the activities of any local loop operator or considered as such,
and any Internet data center provider.
This obligation of non-competition applies in the following countries: France,
the United Kingdom and Germany.
The duration of this obligation is for one year as from the date of termination
of the employment contract.
-------------------
1 Subject to their conformity with French law.
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This non-compete clause will apply to any termination of the employment contract
as from the date of the beginning of the professional activities stated in the
article "Employment" above.
The Company can waive Xx. xx Xxxxx'x obligation by notifying him 15 calendar
days following the notification of termination or resignation or departure from
the Company if the notice period is not applied.
In consideration of this non-competition obligation, excepting the case of
termination for cause, and if the clause is not waived, a flat fee indemnity
will be paid to Xx. xx Xxxxx.
This indemnity will be equal, by express agreement between the parties, to 75%
of the Annual Base Salary (excluding all bonus or other variable compensation,
effectively paid or potential) and will be paid in four installments, at the end
of each quarter, on presentation of written proof (work contract, pay slip or
ASSEDIC statement).
PENALTY CLAUSE:
In the case of violation of the above non-compete clause by Xx. xx Xxxxx, he
will be liable to a to a penalty fixed at six months of his most recent monthly
remuneration.
This sum will be due for each and every breach, without it being necessary for
an official notice to be issued to cease the competitive activity to be issued.
Payment of the penalty of the sum of money to the Company will not prejudice the
Company's right to issue an injunction to cease competitive activity in
violation of the above articles.
NON-SOLICITATION:
Xx. xx Xxxxx undertakes, except upon prior written consent of the Company, for a
period of two years after the termination of the present contract, for whatever
the cause, not to hire away, offer employment or to employ, in any manner, any
person who was employed by the Company in the course of the two years preceding
the termination of the present contract, or in discussion with the Company with
a view to be employed.
PENSION AND SOCIAL PROTECTION:
Xx. xx Xxxxx will benefit from all benefits offered to the Company's employees.
He will be an affiliated member of COMPLEMENTAIRE pension fund (IREC, 00, xxx
xxx Xxxxxxx, 00000 Xxxxx Cedex 17), and to the CAISSE DE RETRAITE DES CADRES
(C.C.R.R. (Agirc Group), 00 xxx xx xx Xxxxxxxxxxxxx, 00000 Xxxxx Cedex 09).
Xx. xx Xxxxx will also be affiliated to a group contract for medical coverage
and life insurance with La Suisse insurance company, 00 xxxxxxxxx Xxxxxxxxx,
00000 Xxxxx Cedex 08.
COMPETENCE CLAUSE:
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The present employment contract is subject to the sole jurisdiction of French
law. The competent jurisdiction is the French courts.
DECLARATIONS:
Xx. xx Xxxxx undertakes to inform the Company without delay of all changes in
his situation which he gave the Company at the time of his employment.
Made in Paris in two originals,
Date:
For the Company, The Employee
Xx. Xxxx-Xxxxxxxx Xxxxxxxx
Representative of the employer Xx. Xxxxxx xx Xxxxx
CompleTel Headquarters Europe SAS
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