Exhibit 10.21
THIS AGREEMENT is made on the 28 day of April 2000
BETWEEN
(1) FIRSTMARK COMMUNICATIONS SERVICES EUROPE LIMITED, a company
incorporated in the United Kingdom and having its registered address at
0 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx X0X 0XX, Xxxxxxx (the "Company");
and
(2) XXXXXXX X. SAMPLES of 00 Xxxxxxx, Xxxxxxxxx, Xxxxxx, XX0 0XX, Xxxxxxx
(the "Employee").
NOW IT IS HEREBY AGREED that the Company shall employ the Employee and the
Employee shall serve the Company as President and Chief Executive Officer, or in
such other capacity as may from time to time be mutually agreed, upon and
subject to the following terms and conditions:
1. INTERPRETATION
1.1. In this Agreement unless the context otherwise admits the following
expressions shall have the meanings given to them as follows:
"the Directors" means those members of the Board of Directors for the
time being of the Company and "subsidiary" and "holding company" means
a subsidiary or holding company as defined by Section 736 and 736A of
the Companies Xxx 0000 for the time being of the Company (and
"subsidiaries" and "holding companies" shall be construed accordingly);
"associated company" means any holding company or subsidiary of the
Company or any other subsidiary of such holding company;
1.2. Any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment of the same.
2. COMMENCEMENT AND DURATION
2.1. The Employee's employment with the Company shall commence as of
February 2, 2000. No previous employment of the Employee shall be
treated as being continuous with the Employee's employment with the
Company.
2.2. Subject to termination as hereinafter provided, the employment of the
Employee shall continue from year to year provided that the Company may
terminate the employment at any time by giving to the Employee six
months written notice to terminate this Agreement and the Employee may
terminate his employment at
any time by giving to the Company six months' written notice to
terminate this Agreement.
2.3. The Employee warrants to the Company that he is not restricted in any
way from commencing and continuing employment with the Company on and
after the date hereof. The Employee shall indemnify and keep
indemnified the Company and each associated company against any and all
damages, losses, costs and expenses (including the costs of any legal
proceedings which the Company or any associated company may be party)
arising from the Employee being in breach of the warranty contained in
this sub-clause.
3. REMUNERATION
3.1. The Employee shall be entitled to a fixed salary at the rate of
L200,000 (two hundred thousand UK pounds sterling) per annum
(which shall accrue from day to day) payable by equal monthly
installments in arrears on the last working day of every month.
3.2. The first of such payments shall be made on the last day of the month
in which the Employee's employment is deemed to have commenced and
shall be a pro rata amount in respect of the period from the date
hereof to the last day of such month.
3.3. The Employee's salary shall be reviewed by the directors of the Company
no later than, and with effect from, each anniversary of the Employee's
employment with the Company, such review to be in line with the
Company's then current policy on remuneration review; provided however,
that the Employee's salary shall not be at a rate less than the rate in
effect in the prior year unless such reduction occurs in connection
with a Company wide salary expense reduction necessitated by poor
financial performance of the Company as determined by the Directors of
the Company in their reasonable discretion.
3.4. The Company shall be entitled to deduct from the Employee's salary or
from any other payments due to the Employee any amount which the
Company is required by law to deduct (including without limitation PAYE
or national insurance).
4. BONUS
The Company shall pay to the Employee a bonus in accordance with a
bonus plan to be proposed by the Employee in his capacity as President
and Chief Executive Officer which shall be subject to review and
approval by the Directors of the Company; provided however, that the
target bonus shall be 100% of the Employee's base salary with respect
to the calendar year.
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5. DEVOTION OF WHOLE TIME TO THE COMPANY
5.1. During his employment with the Company the Employee shall, unless
prevented by ill-health or holiday;
5.1.1. perform such reasonable duties and exercise such powers, authorities
and directions as the Directors may from time to time reasonably assign
or vest in him in conjunction with the business of the Company and any
one or more of the Company's associated companies;
5.1.2. attend meetings of the senior management of the Company;
5.1.3. devote his whole time and attention during normal working hours to the
business of the Company and its associated companies and such other
time as may be necessary for the performance of his duties hereunder;
5.1.4. do all in his power to promote, develop and extend the business of the
Company and its associated companies;
5.1.5. conform to and comply with the reasonable directions and regulations
made by the Directors or any other properly authorised person;
5.1.6. not, without the previous consent in writing of a Director engage or be
concerned or interested in any other business of a similar nature to or
competitive with that carried on by the Company or any of its
associated companies
PROVIDED always that nothing in this clause 5 shall preclude the Employee from
holding or being otherwise interested in any shares or other securities of (i)
any company which is for the time being quoted on any recognised stock exchange,
so long as the interest of the Employee therein does not without the written
consent of the Directors extend to more than 2.5% (two and one half percent) of
the aggregate amount of the quoted securities of any class in respect of such
company, or (ii) any privately held company, so long as the interest of the
Employee therein does not without the written consent of the Directors amount to
more than 5% (five percent) of the aggregate amount of securities of any class
in respect of such company, and the Employee does not participate in the
management or direction of such company.
5.2. During the employment of the Employee with the Company:
5.2.1. the Employee may be required, on a temporary basis, to work at such
place or places in the United Kingdom or overseas as may be determined
by the Company from time to time and undertake such travel overseas as
may be reasonably required; and
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5.2.2. the Employee shall report to the Board of Directors of the Company.
6. BENEFITS
6.1. The Employee shall be entitled to Company benefits available to senior
executives, including but not necessarily limited to, use of a company
automobile, health care, disability insurance, life cover and a
contributory pension scheme.
6.2. In respect of the benefits programme referred to in sub-clause 6.1, the
Company shall pay the premiums in respect of private medical and dental
expenses insurance effected on behalf of the Employee and the
Employee's spouse as in accordance with Company policy. The Employee
shall during his employment with the Company be a member of a
death-in-service and disability benefit scheme maintained by the
Company in respect of the Employee (or any scheme set up in its place).
7. EXPENSES
The Company shall pay or procure to be paid to the Employee all
reasonable travel, hotel and other out-of-pocket expenses wholly
exclusively and necessarily incurred by the Employee in the proper
performance of his duties under this Agreement. Any such payment shall
be subject to providing the Company with satisfactory receipts or other
evidence of actual payment of said expenses.
8. ABSENCE THROUGH ILLNESS
8.1. In the case of illness of the Employee or other cause incapacitating
him from properly performing his duties, the Employee shall, subject to
clause 8.2, and to the production of such satisfactory medical evidence
as the Company may reasonably require, continue to be paid his full
salary during such absence.
8.2. If such absence shall aggregate 16 (sixteen) weeks in any 52 (fifty
two) consecutive weeks, the Company may terminate the employment of the
Employee forthwith by written notice given within 28 (twenty eight)
days of the end of the last 16 (sixteen) weeks. On termination pursuant
to this clause 8.2, the Company shall pay to the Employee a sum equal
to one year's salary from the date of such termination.
8.3. The amounts payable by the Company to the Employee under this clause 8
will be reduced by the amount of any statutory sick pay payable to the
Employee.
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9. HOLIDAYS
The Employee shall (in addition to the usual Bank Holidays and public
holidays) be entitled to 25 (twenty five) days paid holiday in each
calendar year to be taken at a time or times mutually agreed with the
Company.
10. CONFIDENTIALITY AND NON-DISCLOSURE
10.1. The Employee shall not either during his employment hereunder or at any
time after its termination:
10.2.1 disclose to any person or persons (except those authorised by the
Company to know);
10.2.2. use for his own purpose or for any purposes other than those of the
Company or its associated companies; or
10.2.3. through any failure to exercise all due care and diligence cause any
unauthorised disclosure of
any private, confidential or secret information of the Company (including lists
or details of customers of the Company or relating to the working of any process
or invention carried on or used by the Company or any invention of the Company)
or which he has obtained by virtue of his appointment or in respect of which the
Company is bound by an obligation of confidenee to a third party. These
restrictions shall cease to apply to information or knowledge which may
(otherwise than through default of the Employee) become available to the public
generally.
10.3. The provisions of this clause 10 shall apply equally in relation to the
private, confidential or secret information of any associated company
of the Company which the Employee may have received or obtained during
his appointment and the Employee shall upon request enter into an
enforceable agreement with any such company to the like effect.
10.4. All notes, memoranda, records and writing (in whatever format) made by
the Employee relating to the business of the Company or any associated
company of the Company, shall be and remain the property of the Company
or the associated company to whose business they relate and shall be
delivered by him to the company to which they belong forthwith upon
request.
11. SUMMARY TERMINATION
11.1. The employment of the Employee hereunder may be terminated forthwith by
the Company without payment in lieu of notice if the Employee:
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11.2. is guilty of a felony involving moral turpitude, or of any gross
misconduct in connection with or affecting the business of the Company
or any of its associated companies; or
11.3. is in material breach of any of the provisions of this Agreement unless
the breach is capable of remedy and is not remedied within 7 (seven)
days of notice by the Company requiring remedy; or
11.4. commits an act of bankruptcy or becomes insolvent or suffers any
similar or analogous action on account of debt.
11.5. For purposes of this Agreement, the conditions described in sub-clauses
11.2 and 11.3 shall constitute Cause.
11.6. Except as provided in sub-clause 11.7, if within three (3) years from
the date hereof, the Company terminates the employment of the Employee
without Cause, or the Employee terminates for Good Reason, the Company
shall pay the Employee within ten (10) days following such termination
one (1) year base pay and bonus in an amount equal to the prior year's
bonus (or, if there has been no prior year bonus, in an amount equal to
100% of the Employee's base salary for the calendar year).
11.7. If within two (2) years after a Change in Control (as defined below)
the Company terminates the employment of the Employee without Cause, or
the Employee terminates his employment for Good Reason, the Company
shall pay the Employee within ten (10) days following such termination
two (2) years base pay and two (2) years bonus. For this purpose, the
Employee's bonus shall equal the greater of (i) the prior year's bonus,
or (ii) the Employee's greatest bonus paid in any of the last three (3)
years prior to the year in which the Change in Control occurs.
11.8. For purposes of this Agreement, the following shall constitute "Good
Reason" and the Company may regard the Employee's employment as being
constructively terminated and the Employee may, therefore, resign
within 30 days of discovery of the occurrence of one or more of the
following events: (i) without the Employee's express written consent,
the assignment to the Employee of any duties materially inconsistent
with Employee's position, duties, responsibilities and status with the
Company; (ii) without the Employee's express written consent, the
termination and/or material reduction in the Employee's facilities
(including office space and general location) and staff reporting
available to the Employee unless such reduction occurs as part of a
Company-wide action authorized by the Directors of the Company to
reduce the Company's expenses; (iii) a material reduction by the
Company of the
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Employee's base salary or of any bonus compensation formula applicable
to him unless in connection with a Company-wide salary expense
reduction necessitated by poor financial performance of the Company as
determined by the Directors of the Company in their reasonable
discretion; (iv) the failure of the Company to obtain the assumption of
this Agreement by any successor; (v) a material breach of any provision
of this Agreement by the Company which is not earned within 10 business
days after notice in writing by the Employee; or (vi) a material breach
by any associated company of any provision of any other agreement
relating to services, compensation or benefits of the Employee.
11.9. A "Change in Control" shall have occurred when (i) any person or entity
(other than persons controlling, controlled by or under common control
with FirstMark Communications Europe S.A. ("FMCE")) shall have become
the beneficial owner of equity interests representing more than 50% of
the voting power of all outstanding equity securities of FMCE, (ii)
FMCE shall have consummated any merger or consolidation if, as a result
thereof, the shareholders of FMCE immediately prior to such transaction
do not beneficially own equity interests representing more than 50% of
the voting power of all outstanding equity securities of the resulting
or surviving entity or its parent entity, or (iii) FMCE shall have sold
all or substantially all of its consolidated assets.
12. RECONSTRUCTION
If the employment of the Employee is terminated by reason of the
liquidation of the Company for the purpose of reconstruction or
amalgamation, the Employee shall be offered employment with any concern
or undertaking resulting from such reconstruction or amalgamation on
terms and conditions no less favourable than the terms of this
Agreement. The Employee shall in such circumstances have no claim
against the Company in respect of the termination of his employment.
13. EFFECT OF TERMINATION
13.1. The termination of the Employee's employment in accordance with the
terms of this Agreement howsoever occasioned shall not prejudice any
claim which either party may have against the other in respect of any
antecedent breach of any provision of this Agreement, nor shall it
prejudice the continuance in force of any provision which is, expressly
or by implication, intended to come into, or continue in force on or
after such termination.
13.2. Upon the termination for whatever reason of the Employee's employment
hereunder, the Employee shall thereafter, upon the request of the
Company:
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13.2.1. Resign without claim for compensation from office of the Company and
such other offices held by him in the Company or any of its
subsidiaries or associated companies as may be so requested. In the
event of the Employee's failure to do so forthwith upon request, the
Company is hereby irrevocably authorised to appoint some person in his
name and on his behalf sign and deliver such resignation or
resignations to the Company and to each subsidiary or associated
company of the Company of which the Employee is at the material time an
officer; and
13.2.2. Hand over to the Company or as it may direct and without retaining
copies of the same all documents, books, correspondence and other
papers of whatsoever nature relating to the business of the Company and
any of its associated companies which may then be or ought to be in his
possession.
14. PAY IN LIEU OF NOTICE
On serving notice for any reason to terminate this Agreement the
Company shall instead of giving the Employee the appropriate period of
notice be entitled (at its sole discretion) to pay to the Employee his
salary and full contractual benefits (at the rate then current) for the
appropriate period of notice of such termination.
15. LEAVE OF ABSENCE
15.1. On serving notice for any reason to terminate this Agreement the
Company may (at its sole discretion) require the Executive to take paid
leave of absence equal in length of time to the Employee's entitlement
to notice of such termination.
15.2. Whilst on such leave of absence the Employee shall not, without the
Company's prior written consent, or at the Company's request, contact
any Company employee, customer or supplier of the Company.
16. GRIEVANCE AND DISCIPLINARY PROCEDURES
There is no formal disciplinary procedure applicable to this Agreement.
Should the Employee have a grievance this should be discussed with the
Directors of the Company.
17. SEVERABILITY
Each and every provision in this Agreement shall be read as a separate
and distinct undertaking and the invalidity, legality or
unenforceability of any part of this Agreement shall not affect the
validity, legality or enforceability of the remainder.
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18. WAIVER
No waiver by the Company or the Employee of any of their respective
rights hereunder shall be deemed a continuing waiver of any such rights
hereunder.
19. ASSIGNMENT
The Company shall be entitled to assign its rights under this Agreement
to a transferee of substantially all the assets of the Company or to
any of its associated companies by whom the Employee shall for the time
being be employed or on behalf of which he shall at any time work and
the Employee agrees to accept any such assignment so long as there is
no diminution of his responsibilities.
20. NOTICES
20.1. Any notice to be given under this Agreement shall be sufficiently
served:
20.2. In the case of the Employee by being delivered either personally to him
or sent by registered post or recorded delivery to his usual or last
known residential address in the United Kingdom; and
20.3. In the case of the Company by being personally delivered at or sent by
registered post or recorded delivery addresses to its registered
office.
20.4. Any such notice on sub-clauses 20.2 and 20.3 shall be deemed served on
the second day following that on which it was posted.
21. GOVERNING LAW
This Agreement shall be subject to English law and the parties hereby
agree to and submit to the non-exclusive jurisdiction of the English
courts.
22. PREVIOUS AGREEMENTS
22.1. This Agreement supersedes all existing agreements, arrangements,
contracts, representations and understandings (oral and written) for
the employment of the Employee by the Company.
22.2. The Employee hereby acknowledges that he has no outstanding claims of
any kind against the Company or its associated companies.
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23. POST-TERMINATION RESTRICTIONS
23.1. The Employee shall not during the course of his employment with the
Company, and for a period of 12 (twelve) months after termination of
his employment with the Company or any associated company, be engaged
as a director, officer, employee or consultant in any concern which,
directly or through any subsidiary or joint venture, (x) is or shall be
wholly or partly in competition with any aspect of the Company's or any
of its subsidiaries' or joint ventures' business in any jurisdiction in
which the Company, directly or through any of its subsidiaries or joint
ventures, operates or intends to operate or apply for a wireless local
loop or DSL license within such 12 (twelve) months or (y) is applying
or intends to apply for a wireless local loop or DSL license in any
jurisdiction in which the Company or any of its subsidiaries or joint
ventures holds or intends to apply for a wireless local loop or DSL
license.
23.2. The Employee agrees that he shall not, for a period of 12 (twelve)
months after termination of his employment with the Company, solicit or
entice away or seek to entice away from the employment of the Company
or any of its associated companies or any of their subsidiaries or
joint ventures any person who is or was at the date of the Employee's
termination of employment employed by the Company or any associated
company or any of their subsidiaries or joint ventures in a senior
managerial, technical, supervisory, sales or marketing capacity.
23.3. The Employee agrees that he shall not, for a period of 12 (twelve)
months after termination of his employment with the Company or any
associated company, solicit any customer of the Company or its
associated companies or any of their subsidiaries or joint ventures to
terminate or modify adversely to the Company or any associated company
or any of their subsidiaries or joint ventures its business
relationship with the Company or any associated company or any of their
subsidiaries or joint ventures.
24. DATA PROTECTION
The Employee acknowledges and agrees that the Company is permitted to
hold personal information concerning the Employee and that the Company
may make use of such information in the course of the Company's normal
business activities. The Employee further acknowledges and agrees that
the Company may disclose such information to its associated companies
and certain third parties in such circumstances where disclosure is
necessary to ensure the proper conduct of the Company's business or the
business of any of its associated companies. Personal information as
referred to in this clause 24 may be held, used or disclosed as
aforesaid in any medium whatsoever.
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25. INTELLECTUAL PROPERTY
The Employee shall disclose promptly to the Company any invention or
intellectual property discovered or created by the Employee during the
period of his employment with the Company, insofar as any discovery or
creation relates to the business of the Company or the business of any
associated company, and any such invention or other intellectual
property so created shall (subject to the Patents Act 1977) belong to
and be the absolute property of the Company. The Employee shall,
whether during or after termination of his employment (howsoever
arising) do all such things, execute all such documents and take any
action required by the Company (at the Company's cost) to apply for
protection in respect of any invention or other intellectual property
and to vest the same in the Company or in any associated company.
26. SHAREHOLDER APPROVAL
All terms and conditions of this Agreement are subject to the approval
of those persons who own more than 75% of the voting power of all the
outstanding interests of the Company in accordance with Section 280G of
the Internal Revenue Code of 1986, as amended, under U.S. law, and
regulations thereunder.
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AS WITNESS the hands of the parties hereto the day and year first above written
Signed by
For and on behalf of
FIRSTMARK COMMUNICATION SERVICES EUROPE LIMITED
In the presence of
/s/ Xxxxxxx X. Samples
-------------------------------
Signed by XXXXXXX X. SAMPLES
In the presence of
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