EXHIBIT 10.2
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RESIGNATION AGREEMENT
This Resignation Agreement (this "Agreement") by and among Cabletel
Management, Inc., a Colorado corporation (the "Company"), Completel N.V., a
Netherlands corporation ("Europe"), and ▇▇▇▇▇▇▇ ▇. Samples, a U.S. citizen and
resident of the United Kingdom (the "Executive"), is dated May 17, 2002.
WHEREAS, the Executive is employed by the Company as its Chief
Executive Officer and the Company and Executive have entered into an
Employment Agreement dated as of February 26, 2001 (the "Employment
Agreement");
WHEREAS, the Company provides management and consulting personnel to
Europe;
WHEREAS, the Executive has been seconded to Completel Headquarters UK
Ltd., a company with limited liability organized under the laws of the United
Kingdom ("Completel UK"), to serve in the capacity of Managing Director and
Chief Executive Officer of Europe pursuant to a Secondment Agreement by and
among the Company, the Executive and Completel UK (the "Secondment
Agreement");
WHEREAS, the Company and the Executive have entered into a Retention
Agreement dated as of March 15, 2002 (the "Retention Agreement");
WHEREAS, Europe granted the Executive an option to purchase 1,500,000
ordinary shares of Europe pursuant to an Option Agreement made as of March 14,
2001 (the "First Option Agreement");
WHEREAS, the Company, Europe, Completel UK (together, the "Europe
Group") and the Executive have agreed that, in light of Europe's
restructuring, it is in the best interests of the Europe Group and the
Executive for the Executive to resign from all positions held with the Europe
Group, and they wish to set forth their mutual agreement as to the terms and
conditions of such resignation and their mutual obligations;
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Resignation. Effective as of May 17, 2002 (the "Resignation
Date"), the Executive hereby resigns from and shall cease to serve in any
capacity (whether as an employee, director or managing director) for Europe
and any of its affiliates or subsidiaries (Europe and all of its subsidiaries
and affiliates are hereinafter referred to as the "Affiliated Entities").
2. Cash Payments and Benefits.
(a) The Executive shall receive a lump sum cash payment from the
Company on May 17, 2002 in the amount of $US400,000 (the "Cash Payment"). The
Cash Payment shall be transferred by the Company into such bank account of the
Executive as the Executive shall direct.
(b) On the Resignation Date, the Company shall provide the Executive
with the opportunity to elect benefits continuation for the required
continuation coverage under Section 601 et seq. of the Employee Retirement
Income Security Act of 1974, as amended, and Section 4980B of the Internal
Revenue Code of 1986, as amended (known as "COBRA" benefits). Consistent with
COBRA, the Executive shall pay the cost of such benefits.
(c) The Company shall pay the Executive an "ex gratia" payment of $US
25,000. Such payment shall be made on May 18, 2002 in the same manner as
specified in Section 2(a) above.
(d) All of the stock options granted to the Executive pursuant to the
First Option Agreement shall become fully vested and exercisable on the
Resignation Date. Such options shall expire one year after the Resignation
Date.
(e) Europe has granted the Executive an option under the Completel
2000 Stock Option Plan, as amended, to purchase 7,333,333 ordinary shares of
Europe at an exercise price per share of 0.03 pursuant to the option agreement
attached as Exhibit A hereto. Such option grant is conditional upon the
occurrence of a Success (as defined in the Retention Agreement) and otherwise
subject to the terms and conditions of the option agreement attached as
Exhibit A.
3. Executive's Covenants. The Executive acknowledges that,
notwithstanding this Agreement, he will continue to be bound by Section 5
("Confidentiality"), Section 6 ("Noncompetition") and Section 7
("Nonsoliciation") of the Employment Agreement. The Executive further
acknowledges that each Affiliated Entity shall be entitled to injunctive
relief in respect of any breach or threatened breach of such provisions of the
Employment Agreement. The Executive shall also make himself available to the
Company following the Resignation Date to assist the Affiliated Entities, as
may be requested by the Company at mutually convenient times and places, with
respect to pending and future litigations, arbitrations, governmental
investigations or other dispute resolutions relating to matters that arose
during the Executive's employment with the Company. The Company will reimburse
the Executive for all reasonable expenses and costs he may incur as a result
of providing assistance in this regard, upon receipt of proper documentation
thereof.
4. Mutual Nondisparagement.
(a) The Executive shall not make, participate in the making of, or
encourage any other person to make, any statements, written or oral, which
criticize, disparage, or defame the goodwill or reputation of, or which are
intended to embarrass or adversely affect the morale of, any of the Affiliated
Entities or any of their respective present, former or future directors,
officers, executives, employees and/or shareholders. The Executive further
agrees not to make any negative statements, written or oral, relating to his
employment, the termination of his employment or service, or any aspect of the
business of the Affiliated Entities.
(b) The Affiliate Entities shall not make, participate in the making
of, or encourage any employees or any other person to make, any statements,
written or oral, which criticize, disparage, or defame the reputation of, or
which are intended to embarrass, the Executive.
(c) Notwithstanding the foregoing, nothing in this Section 4 shall
prohibit any person from making truthful statements when required by order of
a court or other body having jurisdiction, or as otherwise may be required by
law or legal process.
5. Release.
(a) The Executive on behalf of himself and his agents, assignees,
attorneys, heirs and executors (the "Executive Releasors") agrees to and does
hereby forever release the Company, any Affiliated Entities, and their past
and present parents, subsidiaries, and present and former employees, officers,
directors, shareholders, agents, successors and assigns of any of them
(collectively, the "Company Releasees") from all claims, demands, causes of
action, controversies, agreements, promises and remedies, of any type which
the Executive may have as of the date hereof, whether known or unknown, in
connection with or in relationship to the Executive's capacity as an employee,
officer or director of any of the Company Releasees, and the termination of
any such capacity, other than with respect to the rights expressly preserved
herein.
(b) The Executive expressly waives any and all rights under any
applicable law with respect to claims that he does not know or suspect to
exist in his favor at the time of executing this release, even though if known
by him, such claims must have materially affected this Agreement and his
settlement hereunder.
(c) Nothing herein shall be deemed to release the Company Releasees
in respect of the Executive's rights (i) under this Agreement, (ii) under the
First Option Agreement, (iii) under the Option Agreement attached as Exhibit
A hereto, (iv) to indemnification in respect of his service as a director or
officer of any of the Affiliated Entities, (v) to any accrued employee
benefits, (vi) to reimbursement of business expenses in accordance with
Company policy, and (vii) under the Federal Age Discrimination in Employment
Act.
(d) The Executive, on behalf of himself and the Executive Releasors,
promises never to file a lawsuit or arbitration asserting any claim released
hereunder. If the Executive files a lawsuit or arbitration against the
Company Releasees based on any claim released hereunder, he agrees to pay for
all costs incurred by the Company Releasees, including reasonable attorney's
fees, in defending against such claim.
(e) The Company, on behalf of itself and any Affiliated Entities and
their past and present parents and subsidiaries (the "Company Releasors"),
agree to forever release the Executive and his family, estate, agents,
attorneys, heirs, executors, successors and assigns (the "Executive
Releasees") from any and all claims, demands, causes of action,
controversies, agreements, promises and remedies, in connection with or in
relationship to the Executive's capacity as an employee, officer or director
of any of the Company Releasors which they may have as of the date hereof,
whether known or unknown, other than with respect to the rights expressly
preserved herein.
(f The Company, on behalf of itself and the Company Releasors,
expressly waives any and all rights under any applicable law with respect to
claims that it does not know or suspect to exist in its favor at the time of
executing this release, even though if known by it, such claims must have
materially affected its settlement with the Executive and this Agreement.
(g) Notwithstanding the foregoing, nothing herein shall be deemed to
release the Executive Releasees in respect of the Company Releasors' rights
under (i) this Agreement, (ii) the First Option Agreement, (iii) the Option
Agreement attached as Exhibit A hereto or (iv) Sections 5, 6 or 7 of the
Employment Agreement.
(h) The Company, on behalf of itself and the Company Releasors,
promises never to file a lawsuit or arbitration asserting any claim released
hereunder. If the Company or any Company Releasor files a lawsuit or
arbitration against the Executive Releasees based on any claim released
hereunder, the Company agrees to pay for all costs incurred by the Executive
Releasees, including reasonable attorney's fees, in defending against such
claim.
6. Entire Agreement; Other Benefits. This Agreement sets forth the
entire agreement of the parties with respect to the subject matter hereof,
and supersedes in its entirety all prior agreements (including, without
limitation (except as specifically excepted herein) the Employment Agreement,
the Retention Agreement and the Secondment Agreement), promises, covenants,
arrangements, communications, representations or warranties, whether written
or oral, by any party hereto or any representative of either party hereto.
Without limiting the generality of the foregoing, the Executive expressly
acknowledges and agrees that except as specifically set forth in this
Agreement, he is not entitled to receive any severance pay, severance
benefits, compensation or employee benefits of any kind whatsoever from any
of the Affiliated Entities.
7. Successors. This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by
the Executive other than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's legal representatives. This Agreement shall inure to the benefit
of and be binding upon each Affiliated Entity and its successors.
8. Amendment. This Agreement may be amended, modified or changed
only by a written instrument executed by the parties hereto.
9. Governing Law; Consent to Suit.
(a) If the Executive shall reside in the United States, this
Agreement shall be governed by and construed in accordance with the laws of
the State of Colorado without reference to principles of conflict of laws. If
the Executive shall reside in the United Kingdom, this Agreement shall be
governed by and construed in accordance with the laws of England without
reference to principles of conflict of laws.
(b) The parties hereto irrevocably consent to jurisdiction in the
courts of the state of Colorado for resolution of any claim or dispute
arising hereunder, and such shall be the exclusive forum for the resolution
of such claim or dispute.
10. Captions. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect.
11. Notices. All notices and other communications hereunder shall be
in writing; shall be delivered by hand delivery to the other party or mailed
by registered or certified mail, return receipt requested, postage prepaid;
shall be deemed delivered upon actual receipt; and shall be addressed as
follows:
If to the Executive:
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If to the Company:
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Attention: Controller
With a copy to:
COMPLETEL EUROPE N.V.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
or to such other address as the parties hereto shall have furnished to the
others in writing in accordance herewith.
12. Tax Withholding. Notwithstanding any other provision of this
Agreement, the Company may withhold from any amounts payable under this
Agreement, or any other benefits received pursuant hereto, such state and/or
local taxes as shall be required to be withheld under any applicable law or
regulation.
13. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Agreement as of the date first set forth above.
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▇▇▇ Samples
CABLETEL MANAGEMENT, INC.
By: _____________________________
Name:
Title:
COMPLETEL N.V.
By: _____________________________
Name:
Title:
