MANAGEMENT AGREEMENT
between
CompleTel Europe N.V.,
CompleTel LLC
and
ING Trust (Nederland) B.V.
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MANAGEMENT AGREEMENT
This Agreement (hereinafter referred to as the "Agreement") made between and
entered into by:
1. ING TRUST (NEDERLAND) B.V., a private company with limited liability,
duly organized and existing under the laws of the Netherlands with
registered office at Xxxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx
Xxxxxxxxxxx (hereinafter referred to as "the Manager")
and
2. COMPLETEL EUROPE N.V. a public company, incorporated under the laws of
the Netherlands with registered office at Xxxxxxx Xxxxxxxxxxx 00, 0000
XX Xxxxxxxxx, xxx Xxxxxxxxxxx (hereinafter referred to as "the
Corporation"),
and
3. COMPLETEL LLC, a limited liability company duly organized and existing
under the laws of Delaware, with registered office at 000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
"the Shareholder"),
WITNESSETH:
WHEREAS the Corporation has requested the Manager to provide services to the
Corporation which may include the formation of the Corporation and to act as
managing director of the Corporation in order to manage and control its conduct
of business and to provide such facilities to the Corporation as may be
appropriate or deemed useful for the principal operating and general business of
the Corporation in the Netherlands;
WHEREAS the Manager is willing to act as managing director of the Corporation,
and to provide such facilities to the Corporation as may be appropriate or
deemed useful for the principal operating and general business of the
Corporation in the Netherlands, subject to and in accordance with the terms and
provisions set forth hereinafter.
Now, THEREFORE, in consideration of the premises and the mutual covenants
contained herein it is agreed by and between the parties hereto as follows:
ARTICLE I APPOINTMENT
The Manager will act as managing director of the Corporation as of date or date
of incorporation and will manage the business of the Corporation on the terms
and conditions set forth in the Agreement for an unlimited period.
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ARTICLE II DUTIES
1. The Manager will render domicile and manage and control the conduct of
the business of the Corporation in accordance with the laws of the
Netherlands, its articles of association, the resolutions of its
shareholders' and executive board, provided that, in doing so, the
Manager is not forced to act in an illegal manner or contrary to the
spirit of law and jurisprudence, and as usual in the types of business
in which the Manager and the Corporation are engaged respectively.
2. The Manager will take all steps necessary to incorporate the Corporation
for the Shareholder and to maintain the due existence and good standing
of the Corporation under the laws of the Netherlands and the articles of
association.
3. The Manager will provide such facilities to the Corporation as may be
appropriate or deemed useful.
4. In the execution of its duties the Manager shall take due care of the
interests of the Corporation to the best of its ability.
5. The Manager may subcontract one or more of its duties to third parties,
for which the Manager will remain responsible.
ARTICLE III LIABILITY
The Manager shall not be liable towards the Corporation and/or the Shareholder
for any action duly or lawfully taken or omitted to be taken by it hereunder or
in connection herewith, except for gross negligence or wilful misconduct of the
Manager or his employees.
ARTICLE IV INDEMNITY
The Corporation and/or the Shareholder shall safeguard the Manager and/or his
employees and hold free and harmless against any claim, which may be made upon
the Manager, arising from or connected with the Manager's performance under the
Agreement, unless in the event of gross negligence or wilful misconduct of the
Manager or his employees. The Corporation and/or the Shareholder will reimburse
the Manager for any costs and expenses, including lawyer's fees in connection
with such a claim.
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ARTICLE V TERMINATION
1. Either the Manager or the Corporation or the Shareholder may terminate
the Agreement, without any obligation to state any reason therefor, on
three months' prior notice by way of telefax or registered letter to the
mailing address of the other party, as referred to in Article IX of the
Agreement (hereinafter referred to as the "Mailing Address").
2. In the event of gross negligence or wilful misconduct of the Manager or
his employees the Corporation and/or the Shareholder is/are entitled to
terminate the Agreement forthwith by giving notice by way of telefax or
registered letter to the Mailing Address of the Manager.
3. By giving notice by telefax or registered letter to the Mailing Address
of the Corporation and the Shareholder, the Manager is entitled to
terminate the Agreement forthwith upon the occurrence of any of the
following events:
a. failure by the Corporation and/or the Shareholder to perform or
to comply with any term or covenant contained in the Agreement;
b. any act or omission of the Corporation and/or its Shareholder or
beneficial owner(s) in respect of the Corporation, that at the
sole discretion of the Manager makes it unacceptable to him
continuing to manage the Corporation;
c. transfer of any share by any Shareholder without prior approval
of the transferee by the Manager, which approval shall not
unreasonably be withheld;
d. insolvency or bankruptcy of any Shareholder or beneficial owner;
e. appointment by the Corporation of an employee or another managing
director or officer of the Corporation, who is or has become
unacceptable as such to the Manager.
4. In the event of termination of the Agreement, the Corporation and/or the
Shareholder shall instruct the Manager to whom the management of the
Corporation will be transferred. In absence of such instructions the
Manager shall inform third parties he deems useful, including but not
limited to the local authorities in the Netherlands, about the
termination of the Agreement and file a Mailing Address, other than
Xxxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx for all
purposes.
The Corporation, the Shareholder and the Manager agree that upon
termination of the Agreement the files of the Corporation will be
transferred to the new managing director when all amounts due by the
Corporation or the Shareholder to the Manager have been paid.
5. In the event that the Corporation is in liquidation and the Manager has
been appointed as an agent in the Netherlands for the Liquidator, the
conditions of the Agreement will remain in force.
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ARTICLE VI FEES AND EXPENSES
1. In consideration of the services to be rendered the Corporation will pay
to the Manager:
a. a management fee including domiciliation of NLG 5,000 + VAT per
calendar year and
b. a fee varying from NLG 75 to NLG 250 + VAT per man hour for
management services and for the hours spent during the
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incorporation of the Corporation at the request of the Shareholder.
2. In consideration of the administration and bookkeeping services the
Corporation will pay the Manager a fee varying from NLG 75 to NLG 250 +
VAT per hour or part thereof.
3. Furthermore the Manager shall charge the Corporation for out-of-pocket
expenses, including but not limited to costs of telefax, telephone and
postage.
4. a. The management fee including domiciliation due to the Manager
per calendar year (Article VI-1a) will be charged to the
Corporation in advance. When the Manager has only been in office
for a part of a year, the fee is only due over that part of the
year whereas any part of a month shall be computed as a whole
month.
b. The fee for management services (Article VI-1b) is charged for
on a retainer basis for NLG 750 + VAT in advance per calendar
year, which amount will be settled against hours spent to the
Corporation.
5. Without prejudice to Article VI-4b, all amounts due to the Manager under
this article will be paid without set off or counterclaim and free and
clear of, and without deduction or withholding for or on account of, any
taxes, levies, impots, duties, fees assessments or other charges of
whatever nature.
6. The Manager is entitled to increase the fees at the beginning of a
calendar year based upon an increase of operating expenses. The Manager
will inform the Corporation by letter to the Mailing Address at least
four months in advance.
7. The Corporation authorizes the Manager to debit the bank accounts of the
Corporation for any and all amounts due by the Corporation to the
Manager under this article. If debiting the accounts will result in a
debit balance on the bank accounts of the Corporation the Manager will
inform the Shareholder of the Corporation accordingly. The Shareholder
herewith agrees and guarantees to supply the funds necessary to
re-establish a credit balance on the Corporation's bank accounts
immediately if so requested by the Manager and/or the bank.
ARTICLE VII MISCELLANEOUS
1. If and when an external audit of the reports of the Corporation is
required, such request must be directed in writing to the Manager,
specifying the name and address of the audit firm to be approached by
the Manager. Auditing costs are charged directly to the Corporation.
2. As soon as the annual report has been made, the Manager is authorized to
reserve the corporate income tax, due by the Corporation, on a separate
account in Netherlands' currency.
3. The Corporation herewith authorizes the Manager to debit the bank
accounts of the Corporation in order to settle payment of tax
assessments at the time such taxes are due. If debiting the accounts
will result in a debit balance on the bank accounts of the Corporation
the Manager will inform the Shareholder accordingly. The Shareholder
herewith agrees and guarantees to supply the funds necessary to
re-establish a credit balance on the Corporation's bank accounts
immediately if so requested by the Manager and/or the bank.
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ARTICLE VIII NON-EXCLUSIVENESS
The Agreement will not preclude the Manager from acting as a managing director
of other corporations.
ARTICLE IX MAILING ADDRESS
Until prior written notice of any change thereof the Mailing Addresses are as
follows:
for the Manager :
ING Trust (Nederland) B.V.
Xxxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx
X.X. Xxx 0000, 0000 XX XXXXXXXXX
the Netherlands
telephone: x00 00 0000000
telefax: x00 00 0000000
for the Corporation :
CompleTel Europe N.V.
Xxxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxx
X.X. Xxx 0000, 0000 XX XXXXXXXXX
the Netherlands
telephone: x00 00 0000000
telefax: x00 00 0000000
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for the Shareholder:
CompleTel LLC
Attn. Xx Xxxxx Dovey
000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
XXX
telephone: 00 0 000 0000000
telefax: 00 1 303 7414823
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ARTICLE X GOVERNING LAW
The Agreement is subject to the laws of the Netherlands. Any disputes arising
hereunder shall be brought before the competent court in Amsterdam.
The Agreement has been executed and signed in triplicate on the places and dates
stated below.
The Manager : ING Trust (Nederland) B.V.
/s/ Xxxx X.X. xxx Xxxxxxxxx
----------------------------------
Authorized signatures
By:
Title:
Place:Amsterdam
Date: 1999
The Corporation : CompleTel Europe N.V.
/s/ Xxxx X.X. xxx Xxxxxxxxx
----------------------------------
Authorized signature(s)
By:Managing Director
ING Trust (Nederland) B.V.
Title:
Place:Amsterdam
Date: 1999
The Shareholder : CompleTel LLC
/s/ Xxxxx X. Xxxxx
----------------------------------
Authorized signature(s)
By:
Title:
Place:
Date: 1998
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LETTER OF UNDERTAKING
The undersigned, COMPLETEL LLC, with office address at 0000 Xxxxx Xxxxxxxx Xxx,
Xxxxx 000, Xxxxxxxx 00000 XXX, hereinafter referred to as "the Guarantor",
WHEREAS the Guarantor is familiar with the terms and conditions, conceived in
the Management Agreement (hereinafter referred to as "the Agreement"), pursuant
to which ING TRUST (NEDERLAND) B.V. is prepared to act as managing director
(hereinafter referred to as "the Manager") of COMPLETEL EUROPE N.V. as of date
of appointment as mentioned in Article I of the Agreement (hereinafter referred
to as "the Corporation"), a Corporation which will be organized and will be duly
in existence under the laws of the Netherlands,
DOES HEREWITH UNDERTAKE
1. To pay the Manager a fee for its hours spent in connection with the
formation of the Corporation and its appointment as Manager in conformity
with the man-hour fee, stated in Article VI sub 1 and sub 2 of the
Agreement;
2. To cover any financial obligation incurred by the Manager in connection
with the conduct of business of the Corporation or for which the Manager
could be held liable and does herewith declare himself (themselves
severally and jointly) fully liable towards the Manager for all the
Corporation owes or will owe the Manager on account of the Agreement and
undertake therefore to pay immediately upon having been given notice by the
Manager to the effect that the Corporation has failed to fulfil its
obligations under the Agreement the amounts to be stated, and does
furthermore undertake:
(a) To hold the Manager free and harmless against any claim which may be
made upon the Manager arising from or connected with the Manager's
performance under the Agreement or arising from or connected with
the act of any other Manager of the Corporation; furthermore the
Guarantor will reimburse the Manager for any costs and expenses
including lawyer's fees incurred by the Manager in connection with
such claim, unless in the event of wilful misconduct or gross
negligence committed by the Manager,
(b) To refrain of making any claim upon the Manager arising from or
connected with the Manager's performance under the Agreement or
arising from or connected with acts of any other Manager of the
Corporation, unless in the event of wilful misconduct or gross
negligence committed by the Manager.
The above undertaking will remain valid in the event the shareholder of the
Corporation should sell, pledge or otherwise transfer all or part of his
interest in one or more of the shares in the Corporation until the Manager will
have received a similar undertaking from the transferee, in a form and wording
acceptable to the Manager.
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For the purpose of this Undertaking the Manager includes any individual employee
of the Manager put at the disposal of the Corporation. This undertaking is also
active in case the Manager acts as agent of the Liquidator of the Corporation.
This Undertaking also indemnifies ING Bank N.V. and/or its subsidiaries,
providing Management services for the Corporation.
This Undertaking is subject to the laws of the Netherlands.
Executed at Denver, Colorado this 17th day of June 1999.
------------------
/s/ Xxxxx X. Xxxxx
THE GUARANTOR
