Exhibit 10.11
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MASTER SECONDED EMPLOYEE SERVICES AGREEMENT
THIS MASTER SECONDED EMPLOYEE SERVICES AGREEMENT, dated as of June 16, 1999
(this "Agreement"), is between UNITED INTERNATIONAL HOLDINGS, INC., a Delaware
corporation ("UIH"), and AUSTAR UNITED COMMUNICATIONS LIMITED, a Delaware
corporation (the "Company").
Recitals
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A. UIH has seconded or will second certain of its employees to the Company
and to certain entities (the "Operating Companies") operating and developing
multi-channel subscription television systems and other businesses in which the
Company owns interests.
B. This Agreement sets forth the terms and conditions upon which certain
employees of UIH have been, or may be, seconded to the Company and the Operating
Companies.
Agreement
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The parties hereto agree as fol9lows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
(a) "Affiliate" means, with respect to any Person, any other Person
who or which, directly or indirectly, through one or more intermediaries,
controls, is controlled by or is under common control with such Person. For this
purpose, "control" means the power to manage, directly or indirectly, the
operation of the business of a Person, whether through the ownership or voting
securities, by contract or otherwise.
(b) "Company Losses" has the meaning specified in Section 4(b).
(c) "Costs" has the meaning specified in Section 3(a).
(d) "Indemnified Party" has the meaning specified in Section 4(c).
(e) "Indemnifying Party" has the meaning specified in Section 4(c).
(f) "Operating Companies" has the meaning specified in Recital A.
(g) "Person" means any individual, corporation, partnership, firm,
joint venture, joint stock company, limited liability company, trust, estate,
unincorporated organization, governmental or regulatory body or other entity.
(h) "Seconded Employees" means the individuals seconded pursuant to
this Agreement.
(i) "UIH Losses" has the meaning specified in Section 4(a).
2. SECONDMENTS.
(a) SECONDED EMPLOYEES; REASSIGNMENT. All employees and consultants of
UIH that are now seconded to the Company or to its Operating Companies as
evidenced by the books and records of UIH will continue to be seconded pursuant
to this Agreement. In addition, at the Company's request, UIH may second
additional key executives, employees and consultants to the Company or its
Operating Companies pursuant to this Agreement from time to time as agreed by
the parties hereto and, in the case of key executives nominated by UIH pursuant
to the terms of the Management Services Agreement of even date herewith between
UIH and the Company (the "Management Agreement"), pursuant to the Management
Agreement. Each Seconded Employee may be reassigned by the Company to another
Operating Company at any time subject to such Seconded Employee's agreement with
UIH and the Company ("Employee Contract"), but without UIH's consent, unless
such consent or the approval of UIH or its representatives is required pursuant
to the terms of any other agreement or understanding between UIH and the
Company.
(b) WORK PERMITS; NO ALTERATION OF EMPLOYMENT CONTRACTS. With respect
to each Seconded Employee and where appropriate, the Company shall obtain, or
shall cause to be obtained, any visas, work permits and such other permissions
or consents of whatever nature that may be necessary and arrange for any medical
examinations or medical reports that may be required. If any of the foregoing
visas, permits, permissions or consents are already in place in UIH's name, such
visas, permits, permissions or consents shall be deemed, as between the parties
hereto, to be in the Company's name. Except for its right to terminate any
Seconded Employee's employment according to Section 2(d) and during the period
of such Seconded Employee's secondment hereunder, UIH shall not alter any terms
of the Employee Contract or any agreement or other document evidencing such
Seconded Employee's employment without the Company's prior written consent,
except that without the Company's consent UIH, on its own initiative or at the
direction of its third-party insurance carriers, may change the terms and
features of its standard benefit package, its "Tax Equalization Policy" and its
policies regarding repatriation of Seconded Employees.
(c) RIGHTS AND DUTIES; EMPLOYEES OF UIH. During the period that the
Seconded Employees are seconded hereunder, (i) they shall have the rights,
duties and responsibilities assigned from time to time by the Company or an
Operating Company, as applicable, pursuant to the terms of the governing
documents of such Person; and (ii) they shall remain employees of UIH and shall
continue to receive their salaries and other employee benefits from UIH. The
Company and any Operating Company may provide additional remuneration to any
Seconded Employee in their discretion.
(d) TERMINATION OF SECONDMENTS; TERMINATION OF EMPLOYMENT. The Company
may terminate pursuant to the terms of the Employee Contract any secondment
hereunder at any time without UIH's consent, unless such consent or the approval
of UIH or its representatives is required pursuant to the terms of any other
agreement or understanding with the Seconded Employee or between UIH and the
Company. The Company shall give UIH prompt notice of any such termination. If a
Seconded Employee's employment by UIH terminates for any reason, such Seconded
Employee's secondment pursuant to this Agreement shall terminate automatically
on the date the Seconded Employee's employment terminates. UIH shall give the
Company prompt notice of any such termination of employment. UIH may terminate
any Seconded Employee's employment, at any time without the Company's consent,
(i) if the Seconded Employee's conduct constitutes willful misconduct that is
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materially injurious to UIH or the Seconded Employee's conduct would constitute
a felony or other crime of moral turpitude where committed, (ii) if the Seconded
Employee dies or becomes disabled or (iii) if the Company terminates the
Seconded Employee's secondment hereunder. If UIH terminates any Seconded
Employee's employment in accordance with the preceding sentence, the Company
shall bear all the Costs of separation or severance resulting therefrom. If UIH
terminates any Seconded Employee's employment otherwise, UIH shall bear all
Costs of separation or severance resulting therefrom.
3. REIMBURSEMENT OF COSTS.
(a) COSTS. The Company shall reimburse UIH for all costs, expenses,
charges and disbursements (the "Costs") incurred by UIH in connection with the
secondment of the Seconded Employees to the Company and the Operating Companies,
including without limitation any cost, expense, charge or disbursement arising
by virtue of the terms of any agreement or other document evidencing any
Seconded Employee's employment, any compensation and employee benefits paid to
or provided for the Seconded Employees, any cost of living differential, any
housing allowance, any tax equalization cost borne by UIH relating to the period
of secondment, relocation costs incurred by UIH in connection with sending the
Seconded Employees to the location for their secondments, repatriation costs
incurred by UIH in connection with returning the Seconded Employees to the
United States of America, any automobile expense, any temporary living .expense,
any home leave expense and any other out-of-pocket, expense incurred by UIH in
connection with this Agreement and employment of the Seconded Employees. The
Company shall reimburse or shall cause the appropriate Operating Company to
reimburse, the Seconded Employees directly for any out-of-pocket expenses
incurred by them in connection with the performance of their services to the
Company or the Operating Companies, as applicable, and if UIH has paid or
reimbursed such expenses, the Company shall reimburse UIH for such expenses.
(b) INVOICES; PAYMENT. UIH shall invoice the Company periodically for
the Costs. The Company will pay, or cause its Operating Companies to pay, as
applicable, all such invoices promptly, but not later than 30 days after the
Company receives such invoices, in immediately available, U.S. dollar funds and
in accordance with the other payment instructions indicated thereon. Interest on
late payments shall accrue at the lesser of (i) 15% per annum or (ii) the
highest legal rate that may be-charged for late payments in such circumstances.
(c) TAX GROSS UP. All payments to UIH hereunder shall be received by
UIH without deduction for any taxes. If the Company or any Operating Company is
required by law to withhold or otherwise deduct any taxes in respect of any sum
payable to UIH hereunder, the sum payable to UIH shall be increased by the
amount necessary so that after making all required deductions, including
deductions applicable to additional sums by which the original sum payable to
UIH is increased pursuant to this Section 3(c), UIH shall receive an amount
equal to the sum it would have received had no such deductions been made. If the
Company or such Operating Company deducts withholding taxes from any sums
payable to UIH hereunder, then the Company shall deliver, or cause such
Operating Company to deliver, to UIH at the same time that such sums are due and
payable to UIH, the original of a document evidencing the payment of such
withholding taxes.
4. LIABILITY/INDEMNITY.
(a) UIH LOSSES. The Company is responsible for the supervision of the
Seconded Employees during their secondment hereunder. The Company hereby agrees
to indemnify UIH and to hold harmless UIH, its Affiliates, and except for the
Seconded Employee in question, its and their officers, directors, employees and
agents from and against all liabilities, losses, costs or expenses (including
reasonable attorneys' fees and expenses) actually incurred by UIH resulting from
(i) any act, error or omission, intentional, negligent or otherwise, of any
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Seconded Employee as though such Seconded Employee were the Company's employee
or (ii) the willful misconduct or gross negligence of the Company in performing
its obligations under this Agreement (all such liabilities, losses, costs or
expenses, collectively "UIH Losses"). UIH shall not be liable for any
liabilities, losses, costs or expenses, consequential or otherwise, arising
from, in whole or in part, any Seconded Employee, which shall be the sole
responsibility of the Company.
(b) COMPANY LOSSES. UIH hereby agrees to indemnify the Company and to
hold harmless the Company, its Affiliates, and except for the Seconded Employee
in question, its and their officers, directors, employees and agents from and
against all liabilities, losses, costs or expenses (including reasonable
attorneys' fees and expenses) actually incurred by the Company resulting from
the willful misconduct or gross negligence of UIH in performing its obligations
under this Agreement (all such liabilities, losses, costs or expenses,
collectively "Company Losses").
(c) INDEMNIFICATION PROCEDURE; NOTICE; DEFENSE. Promptly after
becoming aware of. any UIH Losses or Company Losses, as applicable, or the
making of any claim or demand by any third party that may result in the
incurrence of a UIH Loss or a Company Loss, as applicable, the party indemnified
(the "Indemnified Party") pursuant to this Section 4 will notify the party
providing indemnification (the "Indemnifying Party") pursuant to Section 4 of
this Agreement of such incurrence, claim or demand; provided, that the failure
of the Indemnified Party to so notify the Indemnifying Party shall not relieve
the Indemnifying Party of any liability under Section 4(a) or 4(b) hereof, as
applicable, except if the Indemnifying Party has been prejudiced by such failure
to be so notified. In case of any notice to the Indemnifying Party, the
Indemnifying Party shall be entitled to participate in, and, if it wishes, to
assume, the defense of any such claim or demand and, after notice of its intent
to assume such defense, the Indemnifying Party will not be liable for any
attorney's fees or other expenses subsequently incurred by the Indemnified Party
in connection with such claim; provided, that the Indemnified Party shall have
the right to employ counsel to represent it if, in the reasonable judgment of
the Indemnified Party's counsel, there is reasonably likely to be a conflict of
interest such that representation of the Indemnifying Party and the Indemnified
Party by the same counsel would violate applicable professional standards, in
which event the reasonable fees and expenses of appropriate separate counsel
shall be borne by the Indemnifying Party. If the Indemnifying Party does not
elect within a reasonable time after receipt of notice to assume the defense of
any suit brought to enforce a claim or demand referred to above, the Indemnified
Party shall be entitled to assume the control of such defense, in which ease the
reasonable fees and expenses incurred by such Indemnified Party in the conduct
of such defense, including the reasonable fees and expenses of counsel, shall be
reimbursed by the Indemnifying Party as the same are incurred from time to time
by such Indemnifying Party. In no event shall an Indemnifying Party be liable
for the fees and expenses of more than one counsel for an Indemnified Party (in
addition to local counsel) in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened claim or action in respect of which any Indemnified Party
is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party unless such settlement includes an unconditional release
of such Indemnified Party from all liability on any claims that are the subject
matter of such action.
5. TERM; TERMINATION; SURVIVAL
(a) This Agreement is effective on the date hereof, and shall continue
until the date of its termination pursuant to Section 5(b).
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(b) This Agreement shall terminate upon the written agreement of the
parties hereto to such termination. No employees may be seconded by UIH to the
Company hereunder after the Management Agreement has been terminated.
(c) No termination of this Agreement shall affect any obligations of
the parties hereto arising before or as a result of circumstances in existence
before such termination. The provisions contained in this Section 5 and Sections
4, 6, 7 and 8 shall survive any termination of this Agreement.
6. CONFIDENTIALITY. Each party hereto shall maintain in confidence, treat
as proprietary and take all reasonable measures to prevent disclosure of all
information and records (with the exception of publicly available information
and records) concerning the Seconded Employees, and will not use or disclose
such information and records other than for performance of such party's
obligations hereunder or as such party may consider necessary or appropriate
pursuant to reporting requirements or other disclosure obligations under law.
7. ASSIGNMENT. Except as otherwise provided herein, neither party hereto
may assign or transfer any of its interests, or delegate any of its obligations,
hereunder without the prior written consent of the other party. UIH, upon
written notice to the Company, may assign its interests in, and delegate its
obligations under, this Agreement to any Affiliate of UIH. In such event, UIH
shall have no further obligations or liability for matters occurring after any
such assignment is effective. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective successors and assigns.
8. MISCELLANEOUS.
(a) AMENDMENT; WAIVER. Except as otherwise provided in Section 8(h),
this Agreement may not be amended nor may any rights hereunder be waived except
by an instrument in writing signed by the parties hereto. The waiver of any
breach of any term or condition hereof shall not be deemed a waiver of any other
or subsequent breach. No failure to exercise and no delay in exercising, on the
part of either party hereto, any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided are cumulative and not exclusive of any rights or
remedies at law.
(b) INDEPENDENT CONTRACTOR. UIH is an independent contractor and
nothing in this Agreement shall be deemed or construed by the parties hereto or
any third party as creating the relationship of principal and agent, employer
and employee, master and servant, partnership or joint venture between the
parties hereto. Nothing herein shall prevent or prohibit UIH or any of its
Affiliates from providing to any other Person services the same as or similar to
the services to be performed for the Company hereunder.
(c) FURTHER ASSURANCES. Each party hereto shall execute, acknowledge,
deliver, file and record such further certificates, amendments, instruments,
agreements and documents, and do all such other acts and things, as may be
required by law or as, in the reasonable opinion of either party hereto, may be
necessary or advisable to carry out the intents and purposes hereof.
(d) HEADINGS. Titles and headings of the sections of this Agreement
are for convenience of reference only and do not form a part of this Agreement
and shall not in any way affect the interpretation of this Agreement.
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(e) ENTIRE AGREEMENT. This Agreement is the entire agreement and
understanding between the parties hereto concerning the subject matter hereof
and supersedes and replaces all prior agreements and understandings between the
parties hereto with respect thereto.
(f) SEVERABILITY. If any provision of this Agreement or the
application thereof to any Person or circumstance is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provisions to such Persons or
circumstances other than those as to which it has been invalid or unenforceable,
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado, other than its rules of
conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.
(h) NOTICES. All notices, demands or other communications to be given
under or by reason of this Agreement shall be in writing and shall be deemed to
have been received when delivered personally, or when transmitted by facsimile
or by overnight delivery service, addressed as follows:
(i) If to UIH, to it at:
United International Holdings, Inc.
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000, X.X.X.
Facsimile: (000) 000-0000
Attention: President
Copy to: Legal Department
(ii) If to the Company, to it at:
AUSTAR United Communications Limited 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000 Xxxxxx,
Xxxxxxxx 00000, X.X.X.
Facsimile: (000) 000-0000:
Attention: President
Copy to: Legal Department
Either party hereto may change its address for notices, demands and other
communications hereunder by giving notice of such change to the other party in
accordance with this Section 8(h).
(i) NO THIRD-PARTY BENEFICIARIES. Notwithstanding anything to the
contrary herein, no Person shall be a third-party beneficiary to this Agreement.
(j) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which, when executed, shall constitute an original of this
Agreement, and all of which together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Master
Seconded Employee Services Agreement as of the date first set forth above.
UNITED INTERNATIONAL HOLDINGS, INC., a
Delaware corporation
By: /S/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
AUSTAR UNITED COMMUNICATIONS LIMITED, a
Delaware corporation
By: /S/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
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