EXHIBIT 10.21
Dated: 24th November 1997
CBT SYSTEMS LIMITED (1)
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CLARION WORLDWIDE LIMITED (2)
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AGREEMENT
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Binchys
Solicitors
00 Xxxxxxxxxxx Xxxxx,
Xxxxxx 0
(906G.38)
Tel: Dublin (00) 000 0000
Fax: Dublin (00) 000 0000
THIS AGREEMENT is made the 21st day of November 1997
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BETWEEN:
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(1) CBT SYSTEMS LIMITED whose registered office is situate at Beech Hill,
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Xxxxxxxxxx, Xxxxxx 0 ("CBT" which expression where the context so permits
shall include its successors); and
(2) CLARION WORLDWIDE LIMITED whose registered office is situate at X.X. Xxx
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000, Xxxx Xxxx, Xxxxxxx in the British Virgin Isles, ("Clarion" which
expression where the context so permits shall include its successors)
WHEREAS
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(A) CBT carries on the business of computer based training
(B) CBT has agreed to engage the services of Clarion and Clarion has agreed
to make available to CBT the knowledge and expertise of certain employees
of Clarion on a consultancy basis on the terms and subject to the
conditions hereinafter contained.
NOW IT IS HEREBY AGREED as follows:
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1. DEFINITIONS
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The following terms shall have the following meanings:
1.1 "Board" the Board of Directors of CBT
1.2 "Commencement Date" 6th April, 1997
1.3 "Employees" those persons listed in the
schedule annexed hereto
2. APPOINTMENT
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2.1 CBT appoints Clarion as a consultant to CBT's business with effect from
the Commencement Date and Clarion accepts such appointment.
2.2 Clarion has agreed to procure that during the continuance of this
Agreement the services of the Employees will be provided to CBT, such
services to be performed at the premises of CBT at Xxxxx Xxxx, Xxxxxxxxxx,
Xxxxxx 0, or at such other premises as may be agreed between Clarion and
CBT from time to time.
2.3 Clarion hereby warrants to CBT that it employ's each of the Employees and
that it is entitled to furnish the services of each of the Employees to
CBT in the manner provided in this Agreement and that the copy of the
Employment Agreement relating to each Employee as furnished to CBT is
true, accurate, complete and up to date.
3. THE CONSULTANCY SERVICES
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Clarion hereby agrees to act as a consultant to CBT and
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to provide, through the services of the Employees in their respective
capacities shown in the Schedule hereto:
3.1 advice and assistance with regard to all aspects of the business,
finances and affairs of CBT;
3.2 marketing, management and commercial consultancy expertise in the field
of expanding CBT's general activities worldwide; and
3.3 such other matters as CBT may determine and Clarion may from time to time
agree.
4. CLARION'S DUTIES
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During the continuance of this Agreement Clarion shall procure that the
Employees shall:
4.1 unless prevented by ill-health or accident, devote so much of their time,
attention and abilities to CBT's business as may be necessary for the
proper exercise of their duties in he respective capacities set out in
the Schedule hereto provided that nothing contained in this Agreement
shall require any of the Employees to devote to the business of CBT more
than 300 hours in any one calendar month or preclude Clarion or the
Employees from acting in a similar or any other capacity for any other
person, firm or company;
4.2 advise and assist CBT as required in all branches of its business
including in particular but without prejudice to the generality of the
above the specific duties of each of the Employees in their respective
capacities as set out in the Schedule hereto;
4.3 keep the Board adequately informed as to the progress and status of any
projects on which Clarion is engaged for CBT by reporting in such manner
and at such intervals as Clarion may from time to time agree with CBT;
and
4.4 comply with the reasonable requests of the Board and use their reasonable
endeavours to promote the interests of CBT.
5. DELEGATION
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Clarion shall not delegate any of its duties or obligations under this
Agreement otherwise than as may be expressly permitted under the terms
hereof.
6. REMUNERATION OF CLARION
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6.1 In consideration of the services to be rendered by Clarion hereunder CBT
shall pay to Clarion such fees as may be agreed between CBT and Clarion
from time to time.
6.2 Clarion shall be entitled to a rateable proportion of the monthly sum
payable under this Agreement for any broken portion of any month during
which its engagement hereunder subsists.
6.3 CBT shall reimburse to Clarion all reasonable out-of-pocket expenses
incurred by the Employees in
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connection with the business of CBT in the performance of Clarion's duties
hereunder provided that Clarion provides reasonable evidence of the
expenditure in respect of which reimbursement is claimed.
7. SECRECY
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7.1 Clarion shall not at any time during or after the Term disclosure or
divulge or allow to be disclosed or divulged to any person any
confidential information relating to CBT, its business, trade secrets or
affairs other than to persons who have signed a secrecy undertaking in the
form approved by CBT.
7.2 Clarion shall not permit the Employees or any other person to assist in
the provision of the services under this Agreement unless that person has
signed such an undertaking.
8. DELIVERY UP OF DOCUMENTS ON TERMINATION
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Upon the termination of Clarion's engagement Clarion shall, and Clarion
shall procure that each of the Employees shall, forthwith deliver up to
CBT all correspondence, documents, papers and property belonging to CBT
which may be in its or his or her possession or under its or his or her
control.
9. TERMINATION
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9.1 The following obligations are conditions of this Agreement and any breach
of them shall be deemed a fundamental breach which shall terminate this
Agreement immediately and the rights and liabilities of the parties shall
thereafter be determined:
9.1.1 Clarion or any one or more of the Employees being guilty of any
serious misconduct or any serious breach or non-observance of any
of the obligations of Clarion under this Agreement;
9.1.2 Clarion becoming bankrupt or making any arrangement or composition
with its creditors or entering into liquidation (other than
voluntarily and without insolvency for the purposes of
reconstruction and/or amalgamation);
9.1.3 CBT failing to make punctual payment of all sums due to Clarion
under the terms of this Agreement; or
9.1.4 the doing or permitting of any act by Clarion by which CBT's
business may be prejudiced or put in jeopardy.
9.2 This agreement may be terminated at any time by either party serving on
the other not less than three (3) months notice in writing expiring at any
time.
9.3 The obligations of Clarion to provide the services of a particular
Employee under this Agreement shall automatically terminate in respect of
that Employee in the event of:
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9.3.1 that Employee's death; or
9.3.2 in the event of the disability of that Employee and for the
purposes of this Agreement, the term "disability" shall mean
inability of that Employee to perform his or her regular
services by reason of physical or mental incapacity for a
continuous period of ninety (90) days or a total of one hundred
and fifty (150) days during any twelve (12) month period.
10. DISPUTE
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Any dispute between CBT and Clarion relating to any matter arising out
of this Agreement upon which the parties are unable to reach agreement
shall be referred for a decision to two arbitrators who shall be
experts in the matter in dispute, one to be nominated by CBT and the
one by Clarion. Such arbitrators shall have the power in case of
disagreement between them to appoint an umpire who shall likewise be
an expert in the matter in dispute and the decision of such
arbitrators or such umpire, as the case may be, shall be final and
binding upon the parties. Each party shall be responsible for payment
of the fees of the arbitrator nominated by such party. The proper
charges of the umpire shall be paid by CBT and Clarion in such
proportions as the umpire shall direct.
11. FORBEARANCE OR WAIVER
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The rights which each of the parties have under this Agreement shall
not be prejudiced or restricted by any indulgence or forbearance
extended to any other party. No waiver by any party in respect of a
breach shall operate as a waiver in respect of any subsequent breach.
12. NOTICES
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Any written notice required to be served under this Agreement shall
be deemed duly served if, in the case of CBT, it is sent by ordinary
prepaid letter post addressed to CBT at or delivered to its registered
office for the time being and if, in the case of Clarion, it is sent
by ordinary prepaid letter post addressed to Clarion at or delivered
to Xx. Xxxxxx Xxxxxx, Director, Peregrine Corporate Services Limited,
Burleigh Manor, Peel Road, Douglas, Isle of Man IM1 5EP. Any such
notice shall if so posted be deemed to be served on the second
business day after posting and if delivered at the time of delivery.
13. INVALIDITY
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The invalidity or unenforceability of any part of this Agreement shall
not affect the validity or enforceability of the remainder.
14. STATUS OF CLARION
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14.1 During the continuance of this Agreement Clarion shall be an
independent contractor and not the servant of CBT.
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14.2 Clarion shall bear the exclusive responsibility for the payment of
remuneration to the Employees and all expenses in relation to the
Employees for which Clarion is liable as their employer.
14.3 Notwithstanding the provisions of this clause 14 Clarion hereby
undertakes that if at any time hereafter the relationship between CBT
and any one or more of the Employees is determined whether by the
Revenue Inspector or otherwise to be one of employment then Clarion
will indemnify and hold CBT harmless from and against any and all
losses, costs, liabilities and expenses incurred by CBT:
14.3.1 arising out of or connected in any way with such a
determination including but not limited to claims for PAYE,
Income Tax and National Insurance Contributions; or
14.3.2 arising out of or connected in any way with any and all
actions, suits, proceedings, claims, demands, assessments and
judgments with respect to any of the foregoing;
CBT shall be entitled to set all sums due to it under this indemnity
against the monthly sum payable to Clarion pursuant to the provisions
of clause 6 above.
15. SUPERSEDES PRIOR AGREEMENTS
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This Agreement supersedes any prior agreements between the parties
whether written or oral and any such prior agreements are cancelled as
at the Commencement Date but without prejudice to any rights which have
already accrued to either of the parties.
16. HEADINGS
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Headings contained in this Agreement are for reference purposes only
and shall not be incorporated into this Agreement and shall not be
deemed to be any indication of the meaning of the clauses to which they
relate.
17. WARRANTY
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Each of the parties warrants its power to enter into this Agreement.
18. WHOLE AGREEMENT
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Each party acknowledges that this Agreement contains the whole
agreement between the parties and that it has not relied upon any oral
or written representation made to it by the other or its employees or
agents.
19. CBT'S RIGHT TO ASSIGN
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This Agreement and the rights under it may be assigned or transferred
by CBT.
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20. NO ASSIGNMENT OR SUB-CONTRACTING
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Clarion shall not assign or sub-contract any of its rights or duties under
this Agreement without the prior written consent of CBT.
21. GOVERNING LAW
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This Agreement shall be governed by and construed in all respects in
accordance with the laws of the Republic of Ireland which shall be the
proper law of this Agreement and the parties hereto hereby agree to submit
to the non-exclusive jurisdiction of the Courts of the Republic of Ireland
in regard to any proceedings arising out of or in connection with this
Agreement.
22. COSTS
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Each of the parties shall pay any costs and expenses incurred by it in
connection with this Agreement.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
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in duplicate on the day and in the year first above written in the presence of
the undersigned witnesses:
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SCHEDULE
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EMPLOYEES: CAPACITY
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Xxxxxxxx Xxxxxxx Personal Assistant
Xxxx Xxxxxxx Product Development
and Design
Xxxx XxXxxx Strategy and Planning
Xxxx Xxxxx Financial Services
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The Common Seal of )
CLARION WORLDWIDE )
----------------- ) [SEAL]
LIMITED was hereunto )
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affixed in the presence )
of: )
^^ Director
Bank of Ireland Trust Company ^^
Secretary
the Common Seal of )
CBT SYSTEMS LIMITED )
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was hereunto affixed )
in the presence of: )
Director ^^
/Secretary
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