Exhibit 10.28
CONTRACT OF EMPLOYMENT
(ref: dbcont1.doc)
Employer's name: FIRSTMARK COMMUNICATIONS EUROPE, SCA ("the Company")
Address: 0 Xxx Xxxx Xxxxxx, X-0000, Xxxxxxxxxx
Employee's Name: Xxxxx Xxxxx
Address: 0000, Xxxx Xxx Xxxxx Xxxxxxxxxx, XX 00000, XXX
This contract gives particulars of your terms of employment with the Company.
1. Commencement of Employment
1.1 Your period of continuous employment with the Company commenced on
September 13th, 1999 or on signing of this contract of employment
whichever is sooner.
1.2 No employment with a previous employer counts as part of your period of
continuous employment with the Company.
2. Job Title and Duties
2.1 You are employed as Senior Vice President of Marketing and Strategy or in
such other position as the Company may from time to time assign to you.
2.2 You will perform such duties as may be required of you by your manager.
The Company may require that you perform duties for any associated company
from time to time.
2.3 Whilst in the Company's employment you must:-
(a) during your hours of work devote the whole of your time, attention
and abilities to the business of the Company,
(b) use your utmost endeavours to promote the interests of the Company
and observe the utmost good faith towards the Company, and
(e) comply with all the Company's rules, regulations and policies from
time to time in force.
3. Remuneration
3.1 Your basic salary is EURO 200,000 per annum (or such other sum as shall be
agreed from time to time) payable in equal monthly instalments one month
in arrears on or around the last working day of the month. Your basic
salary will be paid at your request into a US bank account.
3.2 The Company shall be entitled to deduct from your salary or from any other
payments due to you any amount which the Company is required by law to
deduct (including without limitation income tax and social security
payments) and any amount which is owed by you to the Company.
3.3 The Directors of the Company shall, with effect from the date of the
commencement of your employment, grant to you an option to subscribe for
400 stock options of the Company at a subscription price as close to zero
as is permitted under the laws of Luxembourg and 650 stock options at a
subscription price at current market value, being US$2,200 per share. Your
stock options will be fully transferable to any entity controlled by you.
The grant of stock options shall be subject to, and shall be governed by,
scheme rules to be established by the Company. The grant of 400 stock
options will vest over a period of two years from the date of commencement
of your employment and the grant of 650 stock options will vest over a
period of four years from the date of commencement of your employment with
vesting in each case taking place quarterly. In the event of an
acquisition by a third party of more than 50% of the share capital of the
Company, your entitlement to stock options in the Company shall be
accelerated in accordance with the stock option scheme rules, to be
established by the Company.
3.4 In the event that you commit any breach or default of the provisions
contained in this contract of employment such that the Company is entitled
to terminate your employment, including but not limited to any breach or
default of the provisions contained in clause 13 and 14 hereof, your
entitlement to unvested stock options will cease forthwith. Such cessation
will be subject to the specific terms contained in the scheme rules.
3.5 Within a period of one year from the commencement of your employment you
will, at the discretion of the Company, be considered for a further grant
of up to 500 stock options (at the then current market value), such
further grant to be conditional on your performance measured against
agreed objectives.
4. Hours of Work
Your hours of work are such as may be required for the proper performance
of your duties, normally between core hours of 9.00 a.m. and 6.00 p.m. and
at such other times as may be appropriate without any additional
remuneration.
5. Holidays and Holiday Pay
5.1 You are entitled to 20 days' paid holiday in each holiday year. The
Company's holiday year runs from 1 January to 31 December.
5.2 If your employment commenced or terminates part way through the holiday
year your holiday entitlement will be assessed on a pro rata basis for
each complete month of service. Deductions from the salary or other
amounts otherwise due to you on termination of employment will be made in
respect of any holidays taken in excess of entitlement.
5.3 Upon termination of your employment you will be entitled to pay in lieu of
any unused holiday entitlement. The Company may require you to take unused
holidays during your notice period.
5.4 Holidays must be taken at times agreed by the Company and sufficient
notice of intention to take holiday must be given to your manager, whose
prior written agreement to the specified dates is required.
5.5 Any holiday entitlement which remains unused at the end of the holiday
year cannot be carried over into the next holiday year.
6. Sickness or other absence
6.1 If you are absent from work for any reason and your absence has not
previously been authorised by the Company you must inform the Company by
10:00 a.m. on your first day of absence.
6.2 In respect of absence due to sickness, injury, or accident, which
continues for 7 or fewer calendar days, you must on your return to work
provide written reasons for your absence to your manager. In respect of
absence due to sickness, injury or accident which continues for more than
7 calendar days you must, on the eighth calendar day, provide the Company
with a medical certificate stating the reason for absence. Thereafter,
medical certificates must be provided to the Company on a weekly basis.
6.3 If you are absent from work due to sickness, injury or accident and comply
with the requirements in this clause 6 you will be paid your normal salary
less any applicable state sick pay or other benefits to which you are
entitled. Salary shall only be paid in respect of the first 6 weeks'
absence, whether consecutive or aggregated over any 12 month period.
Thereafter, any sick pay in excess of applicable state sick pay is
entirely at the Company's discretion.
6.4 The Company reserves the right to require you, at any time, to undergo a
medical examination conducted by a doctor nominated by the Company, at the
Company's expense, and to provide a medical report.
6.5 If your sickness, injury or accident is caused by the act or omission of a
third party you must, at the Company's request, include in any claim for
damages against such third party a claim in respect of moneys paid by the
Company under clause 6.3 and must refund to the Company any damages
recovered under that head.
7. Pension
The Company does not operate a pension scheme.
8. Expenses
The Company shall reimburse you in respect of all expenses reasonably
incurred by you in the proper performance of your duties, subject to you
providing such receipts or other evidence as the Company may require.
9. Notice
9.1 Your contract of employment may be terminated by the employee giving the
Company one month's written notice and by the Company giving the employee
one month's written notice dependant upon length of continuous service as
follows:
Service Notice
Up to four complete years One month
Five to twelve years One week for each complete year of continuous
service
Twelve years or more Twelve weeks maximum
9.2 The Company reserves the right to terminate your employment without notice
by paying to you a sum equal to your salary and all other contractual
benefits for the relevant period of notice (or the unexpired portion if
notice has already been given by either party).
9.3 The Company reserves the right to terminate your employment without notice
or payment in lieu of notice if you are guilty of gross misconduct.
9.4 Your employment shall in any event expire automatically on the date you
reach your 60th birthday.
10. Grievance and Disciplinary matters
10.1 If you have a grievance relating to your employment you should raise the
matter with your immediate manager. If the matter remains unresolved you
may take it further following the Company's normal grievance procedure a
copy of which can be found in the employee handbook.
10.2 Details of the disciplinary rules applicable to all employees are set out
in the Company's disciplinary procedure, a copy of which can be found in
the employee handbook.
10.3 The grievance and disciplinary procedures in this clause 10 are not
contractually binding on the Company and the Company may alter them, or
omit any or all of their stages where it considers it appropriate.
11. Place of Work
11.1 Your normal place of work will be the Company offices or such other
premises that the Company or associated companies may use from time to
time. Although you are currently resident in the Commonwealth of
Pennsylvania, USA, the Company may at its option in the future relocate
you to any of its offices within or outside the USA.
11.2 Your duties will require you to travel on business for the Company to
other locations.
11.3 You may be required to work at any of the Company's premises (or premises
of any associated company) or at the premises of the Company's or an
associated company's customers or suppliers from time to time. You will be
reimbursed for any expenses properly incurred in connection with such
duties in accordance with the Company's expenses policy as amended from
time to time.
12. Collective Agreements
There are no collective agreements applicable to you or which affect your
terms of employment.
13. Confidentiality
13.1 You will not, either during your employment (except in the proper
performance of your duties) or at any time (without limit) after the
termination of your employment:
(a) divulge or communicate to any person, company, business entity or
other organisation;
(b) use for your own purposes or for any purposes other than those of
the Company or any associated company; or
(c) through any failure to exercise due care and diligence, cause any
unauthorised disclosure of any trade secrets or Confidential
Information relating to the Company or any associated company. These
restrictions shall cease to apply to any information which shall
become available to the public generally otherwise than through your
default.
13.2 "Confidential Information" shall include, but not be limited to, details
of suppliers and their terms of business, details of customers and their
requirements, the prices charged to and terms of business with customers,
business plans, marketing plans and sales forecasts, financial
information, results and forecasts (save to the extent that these are
included in published audited accounts), details relating to any
commercial, financial or operational activity of the Company or any
associated company, any proposals relating to the acquisition or disposal
of a company or business or any part thereof or to any proposed expansion
or contraction of activities, details of employees, directors and officers
and of the remuneration and other benefits paid to them, information
relating to research activities, inventions, secret processes, designs,
formulae and product lines, any information which you are told is
confidential and any information which has been given to the Company or
any associated company in confidence by customers, suppliers or other
persons.
13.3 All notes, memoranda, records, lists of customers and suppliers and
employees, correspondence, documents, computer and other discs and tapes,
data listings, codes, designs and drawings and other documents and
material whatsoever (whether made or created by you or otherwise) relating
to the business of the Company or any associated company (and any copies
of the same):
(a) shall be and remain the property of the Company or the relevant
associated company; and
(b) shall be handed over by you to the Company or to the relevant
associated company on demand and in any event forthwith on the
termination of your employment.
14. Post Termination Restrictions
14.1 In relation to the restrictions set out in this clause 14,
(a) "Relevant Business" means any business undertaken by the Company and
associated companies at the date of termination of your employment with
which you were involved to a material degree in the 12 months immediately
preceding the date of such termination.
(b) "Relevant Person" means any person, company or other organisation who
or which at any time in the period of 12 months immediately preceding the
date of termination of your employment, was a supplier or customer of, or
who had regular dealings with, the Company or any associated company and
with whom or which you had contact or about whom or which you obtained
Confidential Information during your employment.
(c) "Relevant Employee" means any person who, at the date of termination
of your employment, was employed by the Company or an associated
company at a senior level and with whom you had material contact
during the period of 12 months immediately preceding the date of
termination of your employment.
(d) "Restricted Period" means:
(i) During the first year of your employment, a period of one year.
(ii) During the second and third years of your employment, a period of
nine months.
(iii) During the fourth and fifth years of your employment, a period six
months.
(iv) Thereafter; a period of one month.
14.2 You will not during the Restricted Period solicit or seek to entice away
from the Company or any associated company the business or trade of a
Relevant Person with the intention of supplying products or services to
that Relevant Person so as to compete or seek to compete with any Relevant
Business.
14.3 Subject to Clause 14.8, you will not during the Restricted Period supply
products or services to or otherwise have business dealings with any
Relevant Person in the course of any business or entity which is or seeks
to be in competition with any Relevant Business.
14.4 You will not during the Restricted Period for your benefit or on behalf of
any business or entity, offer employment to or in any way try to entice
away a Relevant Employee from the Company or any associated company.
14.5 Subject to Clause 14.8, you will not during the Restricted Period be
engaged on your own account or as a director, employee, partner,
consultant, agent or otherwise in any business or entity which is or seeks
to be in competition with any Relevant Business.
14.6 Following termination of your employment, you shall not in any way hold
yourself out or permit yourself to be held out as being interested in or
in anyway connected with the business of the Company or any associated
company.
14.7 The restrictions set out in this clause 14 apply whether you act for your
own benefit or on behalf of any company, other organization or person and
whether you act directly or indirectly.
14.8 Nothing in this Clause 14 will restrict you in serving in an equivalent
capacity as vice president or director or as an insignificant shareholder
of any telecommunications company following termination of your employment
with the Company PROVIDED THAT Clauses 14.2, 14.3, 14.4 and 14.6 shall
continue to apply during the Restricted Period.
14.9 The provisions contained in this Clause 14 shall lapse and shall have no
effect in the event of the acquisition by a third party of more than 50%
of the share capital of the Company. The said provisions in this Clause 14
will lapse also in the event of termination of this contract of employment
by FirstMark without due cause.
15. Inventions
15.1 If you make any invention, whether patentable or not, which relates to, or
is capable of being used in, any business of the Company or its associated
companies with which you are (at the time of making the invention) or have
been (within the 2 years before that time) concerned to a material degree,
you must disclose it to the Company immediately to enable the Company to
determine whether, under the applicable law, the invention is the property
of the Company.
15.2 If an invention does not belong to the Company, the Company shall have the
option to acquire for itself or its nominee your rights therein within
three months of disclosure pursuant to clause 15.1 above on fair and
reasonable terms to be agreed or, in default of agreement within one month
of the exercise of the option, to be acquired at a price determined by an
independent expert.
16. Data Protection and Records
By signing this statement, you acknowledge and agree that the Company is
permitted to process data and sensitive personal data relating to you as
part of its personnel and other records and may use such information in
the course of the Company's business in accordance with the Compnay's
registrable particulars. You agree that the Company may disclose such
information to its associated companies and to third parties whether
within the European Economic Area or elsewhere in the event that such
disclosure is, in the Company's view, required for the proper conduct of
the Company's business or that of any associated company. This clause
applies to information held, used or disclosed in any medium.
17. Previous Contracts
17.1 The contractual terms in this statement shall be in substitution for all
or any existing contracts of employment entered into between you and the
Company.
17.2 Except as set out in this statement and your offer of employment letter
dated 13 September 1999, and except as be mutually agreed in writing there
are no other contractual terms governing your employment with the Company.
Any representation or statement (whether written or oral) made to you in
connection with your employment and not incorporated in this statement or
offer of employment letter, or mutually agreed in writing, shall be
extinguished and have no effect.
18. Definitions
In this statement "associated company" means any holding company for the
time being of the Company or any subsidiary for the time being of the
Company or any such holding company (other than the Company).
19. Garden Leave
After notice to terminate your employment has been given by you or the
Company, the Company may in its absolute discretion: require you to
perform only such duties (including without limitation research projects)
as it may allocate to you; require you not to perform any of your duties;
require you not to have any contact with customers or suppliers of the
Company or any associated company; require you not to have any contact
with such employees of the Company or any associated company as the
Company shall determine; exclude you from the premises of the Company or
any associated company provided
always that throughout the period of any such action referred to in this
clause your salary and contractual benefits shall not cease to accrue or
be paid or provided subject to the other provisions of this statement. You
acknowledge that such action referred to in this clause taken on the part
of the Company shall not constitute a breach of this statement nor shall
you have any claim against the Company or any associated company in
respect of any such action. You shall during any such period of garden
leave remain readily contactable and available for work and, should you
fail to make yourself available for work having been requested by the
Company to attend, you shall, notwithstanding any other provision of this
statement, forfeit your right to salary and contractual benefits in
respect of such period of non-availability.
20. Severability
Each and every provision in this statement shall be read as a separate and
distinct undertaking and the invalidity, legality or unenforceability of
any part of this statement shall not affect the validity, legality or
enforceability of the remainder.
21. Waiver
No waiver by either party of any of their respective rights hereunder
shall be deemed a continuing waiver of any such rights hereunder.
22. Assignment
The Company shall, upon giving you written notice, be entitled to assign
this statement to any of its associated companies and you agree to accept
any such assignment.
23. Notices
23.1 Any notice to be given under this statement shall be sufficiently served:
23.2 In the case of the Employee, by being delivered either personally to him
or sent by first class post, registered post or recorded delivery to his
usual or last known residential address; and
23.3 In the case of the Company, by being personally delivered at, or sent by,
first class post, registered post or recorded delivery addressed to the
office first written above.
23.4 Any such notice in sub-clauses 23.2 and 23.3 shall be deemed served on the
second day following that on which it was posted.
24. Health & Safety
As an employee you have personal responsibilities to do everything
possible to prevent injury to yourself and to others, including:
o working safely and efficiently by using protective equipment
provided and by meeting statutory requirements
o adhering to health and safety procedures and rules for securing a
safe work place
o reporting accidents or defects that have led, or may lead, to injury
o co-operating in the investigation of accidents to aid prevention of
a recurrence.
A copy of the Company's Health and Safety Policy and Procedure is posted
on notice boards, and it is your duty to acquaint yourself with the
various requirements set out therein.
25. Employees Property
The Company does not accept any responsibility or liability for any loss
of, theft or damage to employees' personal property.
26. Personal Records
You are required to inform your manager on any matter affecting your
personal records, such as change of private address, marital status, next
of kin, qualifications etc.
27. Amendments
The Company reserves the right to amend these terms and conditions of your
employment from time to time, and any amendments will be notified to you
in writing.
28. Choice of law and jurisdiction
This Agreement shall be governed by and interpreted in accordance with
English law and the parties hereby submit to the exclusive jurisdiction of
the English courts.
Dated /s/ Xxxxxxx X. Xxxxx
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Signed by Xxxxxxx X. Xxxxx
for and on behalf of the Company
I acknowledge that I have received a duplicate copy of this statement, have read
and understood the same and agree to be bound by all the contractual terms
contained in it.
Dated /s/ Xxxxx Xxxxx
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Signed by the Employee
