EXHIBIT 10.7
DATED 18 April 1996
ACTIVE IMAGING PLC
and
COINSHIRE LIMITED
CONSULTANCY AGREEMENT
DATED 18 April 1996
PARTIES
1 ACTIVE IMAGING PLC (registered number: 3159820) whose registered office
is situate at Xxxxxxx Xxxxx, Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx, XX0 0XX ("the Company"); and
2 COINSHIRE LIMITED (registered number: 1701757) whose registered office
is at Xxxxxxx Xxxx, Xxxxxxx Xxxx, Xxxxxx, Xxxxxx, XX00 0XX
("Coinshire").
RECITALS
(A) The Company wishes to engage Coinshire to provide the Services (as defined
in this Agreement).
(B) Coinshire has agreed to be engaged by the Company to provide the Services
subject to the terms and conditions set out in this Agreement.
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:
"associated company" (a) any company where equity share
capital (as defined by section 744 of
the Companies Act 1985) is, as to 20%
or more but less than 50%,
beneficially owned by one or more
Group Company; and
(b) any subsidiary of a company
within (a) above;
"the Board" the board of directors of the Company;
"the Business" the business of the design and build of
Digital Active Camera technology and of high
speed camera
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interfaces to host computers and such other
business carried on by the Company at the
date of termination of this Agreement or at
any time during the period immediately prior
thereto and the business of any Group Company
at the date of termination of this Agreement
in respect of which Coinshire or the
Executive shall have been concerned or
involved to any material extent at any time
during the 12 month period immediately prior
to the date of termination of this Agreement;
"Confidential (a) any trade secrets, customer
Information" lists, trading details, information
technology, intellectual property or
other information of a confidential
nature relating to any Group Company
(including without limitation details
of activities, businesses or finances
of any such company);
(b) any other information designated
by any Group Company as confidential;
and
(c) any information in relation to
which any Group Company owes a duty
of confidentiality to any third party;
"Executive" Xxxxxxx Xxxx Xxxxxx or such other
person possessing similar
qualifications and experience as the
Company may confirm in writing to be
acceptable to the Company in place of
him should he be unavailable;
"Group" the Company, any subsidiary of the
Company and any associated company of
any of them;
"Group Company" any member of the Group;
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"holding company" and the same meanings as are respectively
"subsidiary" attributed to them by section 736
Companies Xxx 0000;
"Intellectual Property" includes letters patent, trade marks,
service marks, designs, utility
models, copyrights, design rights,
applications for registration of any
of the foregoing and the right to
apply for them in any part of the
world, moral rights, inventions,
confidential information, know-how,
and rights of like nature arising or
subsisting anywhere in the world in
relation to all of the foregoing,
whether registered or unregistered;
"Model Code" the model code on dealings in
securities by directors and employees
of companies where securities are
admitted to trading on the
Alternative Investment Market of the
Stock Exchange;
"the Services" the services described in Schedule 1
to this Agreement and such services
as are incidental or ancillary
thereto and such other services as
are reasonably required by the
Company;
"Stock Exchange" the London Stock Exchange Limited.
2 APPOINTMENT
2.1 Coinshire shall make available to the Company the services of the
Executive for the performance of the Services on the terms of this
Agreement.
2.2 Subject to earlier termination as provided for in this Agreement
such appointment shall commence on the date of this Agreement and shall be
for an initial fixed term of twelve months and shall then continue until
terminated by either party giving to the other not less than six months
notice in writing expiring at any time on or after the expiration of the
initial twelve month period, in which case this Agreement shall terminate
on expiry of such notice.
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3 CAPACITY
Coinshire hereby warrants to the Company that it is entitled to enter into
this Agreement and to implement and carry out its terms and by doing so
neither it nor the Executive shall be in breach of any obligation
(contractual or otherwise) to any third party which would entitle that
third party to damages or some other remedy at law.
4 DUTIES
4.1 Coinshire shall procure that the during the continuance of this
Agreement the Executive shall:
4.1.1 render and perform the Services to the best of his skill and
ability and with due care and attention;
4.1.2 devote such time as may be necessary for the provision of the
Services to be at least 9 days per calendar month;
4.1.3 carry out the Services in a proper and efficient manner and use
his utmost endeavours to promote the interests of the Company.
4.2 In the event that the Executive is required to devote in excess of 9
days per calendar month to the provision of the Services, the Company
shall pay the Consultant an additional fee at the rate of (Pounds)333.33
plus VAT for each additional day.
5 DIRECTOR
5.1 During the subsistence of this Agreement Coinshire shall procure
that the Executive shall provide services as a director and the Chairman
of the Company and upon the termination of this Agreement (howsoever
occurring) that the Executive shall at the request of the Board
immediately resign all his directorships in the Group without claim for
compensation.
5.2 Coinshire hereby undertakes and agrees:
5.2.1 to be bound by and to observe the provisions of the Model Code (a
copy of which is available from the Company Secretary); and
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5.2.2 to deal in any securities in the capital of the Company only in
accordance with the Model Code; and
5.2.3 immediately to inform in writing the Company Secretary of any
dealings by Coinshire or any person connected with Coinshire
(within the meaning of Section 346 of the Companies Act 1985) in
any such securities including the number and nature of the
securities involved and the price paid or received.
5.3 Coinshire shall at all times inform the Company of all and any
arrangements where it or the Executive is or may become an employee or
director of or a consultant, proprietor or shareholder in, any firm or
company wherever incorporated or established.
6 FEES AND EXPENSES
6.1 The Company shall pay to Coinshire a monthly fee of (Pounds)3,000
plus VAT, such fee to be payable monthly in arrears on the last business
day of each month subject to receipt by the Company of an appropriate
invoice from Coinshire and shall be deemed to accrue rateably as the
Services are rendered.
6.2 The Company shall reimburse Coinshire in respect of all expenses
reasonably and properly incurred by the Executive in the performance of
the Services upon production of appropriate vouchers and receipts.
7 TERMINATION
7.1 The Company shall at any time be entitled to terminate this
Agreement in writing with immediate effect without payment of compensation
(other than in respect of any sums accrued due up to and including the
date of termination) if the Executive:
7.1.1 is guilty of any serious misconduct or is in a serious or
persistent breach of the terms of this Agreement or shall
wilfully refuse or neglect to carry out the Services or to
comply with any instructions given to him by the Board;
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7.1.2 has an interim receiving order made against him, becomes
bankrupt or makes any composition or enters into any deed of
arrangement with his creditors generally;
7.1.3 is convicted of any arrestable criminal offence (other than an
offence under road traffic legislation for which a fine or
non-custodial penalty is imposed);
7.1.4 is convicted of an offence under Part V of the Criminal
Justice Xxx 0000 or under any present or future statutory
enactment or regulation relating to insider dealing;
7.1.5 resigns as a director of the Company otherwise than at the
request of the Board;
7.1.6 is disqualified from being a director of any company by reason
of an order made by any competent court;
7.1.7 acts in any way which may in the opinion of the Board bring
himself or any Group Company into disrepute.
7.1.8 other than Xxxxxxx Xxxx Xxxxxx, provided by Coinshire is for
whatever reason unacceptable to the Company.
7.2 The proper exercise by the Company of its right of termination under
this clause 7 shall be without prejudice to any other rights or remedies
which the Company may have against Coinshire.
7.3 Coinshire shall not and shall procure that the Executive shall not
at any time following termination of this Agreement make any public
statements in relation to any Group Company and shall not after the date
of termination of this Agreement for any reason represent itself or
himself as a consultant to or being connected with, any Group Company.
7.4 All property of a Group Company is and shall remain the property of
such Group Company and all such items in the possession, custody or under
the control of Coinshire or the Executive at the date of termination of
this Agreement shall immediately be delivered to the Company.
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8 CONFIDENTIALITY AND RESTRICTIONS
8.1 Coinshire shall not and shall procure that the Executive shall not
disclose and Coinshire shall and shall procure that the Executive shall
use all reasonable efforts to prevent the publication or disclosure in any
way or form and at any time to any person, firm or company of any
Confidential Information obtained by the Executive in the course of the
performance of the Services save to employees of a Group Company whose
duties require such disclosure to be made and Coinshire shall not and
shall procure that the Executive shall not use for its or his own purposes
nor for any purposes other than those of any Group Company, any such
Confidential Information.
8.2 Coinshire shall not and shall procure that the Executive shall not
without the authority of the Board make or keep possession of copies of
any documents, memoranda or other media on which any Confidential
Information is recorded or stored.
8.3 The restrictions contained in this clause 8 shall cease to apply to
any information or knowledge which may come into the public domain
otherwise than by way of breach of this clause 8 or to any publication or
disclosure made by the Executive in the proper performance of the Services
or as required by law.
8.4 In the event that any Group Company shall have obtained any
Confidential Information from any third party under an agreement or
obligation that includes any restriction on disclosure which restriction
shall be made known to Coinshire or the Executive in the course of the
performance of the Services, Coinshire shall not and shall procure that
the Executive shall not without the consent of the Company at any time
infringe such restriction.
8.5 Coinshire shall be bound by and shall procure that the Executive
shall comply with the restrictions set out in Schedule 2.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 Coinshire hereby agrees and acknowledges that all rights in
Intellectual Property to which Coinshire or the Executive may become
entitled in the performance of the services or otherwise pursuant to this
Agreement shall at all times be and remain
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vested in the Company and Coinshire agrees that it shall and will procure
that the Executive shall, at the request and expense of the Company, enter
into such documents and do such things as may be necessary to vest such
rights in the Company.
9.2 Coinshire hereby agrees to waive all its moral rights as defined in
the Copyright Designs and Patent Xxx 0000 in relation to the Intellectual
Property which is the property of the Company by virtue of clause 9.1
9.3 The rights and obligations under this clause 9 shall continue in
force after termination of the Agreement.
10 GENERAL
10.1 The expiration or determination of this Agreement, howsoever
arising, shall not affect those terms which are expressed to operate or
have effect after the termination of this Agreement and shall be without
prejudice to any right of action already accrued to either party in
respect of any breach of this agreement by the other party.
10.2 No variation to this Agreement shall be effective unless made in
writing signed by or on behalf of the parties and expressed to be a
variation to this Agreement.
10.3 The construction, validity and performance of this Agreement shall
governed by the laws of England.
EXECUTED under hand on the date of this Agreement.
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SCHEDULE 1
THE SERVICES
The duties of Coinshire under this Agreement shall be to procure that the
Executive will:
1 where the Executive is Xxxxxxx Xxxx Xxxxxx, act as a director and
the Chairman of the Company and, where the Executive is a person other
than Xxxxxxx Xxxx Xxxxxx, act as a director and (if required by the Board)
the Chairman of the Company;
2 attend at any meetings of the Board and meetings of shareholders and
meetings with advisers to the Company at which his presence is reasonably
required and whether or not those meetings are during normal business
hours; and
3 perform such other duties as the Board may from time to time
reasonably delegate to the Executive.
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SCHEDULE 2
1.1 "Material Interest" (a) the holding of any position as
director, officer, employee,
consultant, partner, principal or
agent;
(b) the direct or indirect control or ownership
(whether jointly or alone) of any shares (or
any voting rights attached to them) or
debentures save for the ownership for
investment purposes only of not more than 1%
of the issued ordinary shares of any company
whose shares are listed on any Recognised
Investment Exchange (as defined in Section 207
of the Financial Services Act 1986) or on the
Alternative Investment Market of the Stock
Exchange; or
(c) the direct or indirect provision
of any financial assistance.
1.2 "Senior Executive" a person with whom Coinshire or the Executive has
been concerned or involved to any material extent
in the course of the performance of the Services
and who is or was:
(a) engaged or employed as an employee director or
consultant of a Group Company;
(b) engaged in a capacity in which he obtained
Confidential Information; and
(c) so engaged at the Termination Date or at any
time during the 12 month period immediately
prior to the Termination Date.
1.3 "Termination Date" the date on which this agreement shall terminate
howsoever occurring.
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2 Coinshire covenants with the Company that it will not and procure that the
Executive will not (other than for and on behalf of the Company) without
the prior written consent of the Board (such consent to be withheld only
in so far as may be reasonably necessary to protect the legitimate
interests of the Group) directly or indirectly:
2.1 at any time during the period of 12 months from the Termination Date
hold a Material Interest in a business in competition with the Business
anywhere in the United Kingdom;
2.2 at any time during the period of 12 months from the Termination Date:
2.2.1 in relation to a business in competition with the Business
perform any services or supply goods in competition with the
Company or any Group Company to any person firm or company who
shall have been a client or customer of the Company or any
Group Company at the Termination Date or at any time during
the 12 months period immediately prior to the Termination Date
and with whom at any time during the same period Coinshire or
the Executive shall have had contact or dealing or have been
aware of in the course of the performance of the Services;
2.2.2 in relation to a business in competition with the Business
canvass solicit or approach or cause to be canvassed solicited
or approached for the purpose of obtaining business orders or
custom in competition with the Company or any Group Company
from any person firm or company who shall have been a client
or customer of the Company or any Group Company at the
Termination Date or at any time during the 12 month period
immediately prior to the Termination Date and with whom at any
time during the same period Coinshire or the Executive shall
have had contact or dealings or have been aware of in the
course of the performance of the Services;
2.2.3 in relation to a business in competition with the Business
offer employment to or employ or offer or conclude any
contract for
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services with any Senior Executive or procure or facilitate
the making of such an offer by any person firm or company;
2.3 at any time solicit or entice or endeavour to solicit or entice or
procure:
2.3.1 an employee of any Group Company to breach his contract of
employment; or
2.3.2 any person to breach his contract for services with any Group
Company;
2.4 at any time:
2.4.1 falsely represent Coinshire or the Executive as being
connected with or interested in any Group Company or in the
Business; or
2.4.2 do or say anything likely or calculated to lead any person
firm or company to withdraw from or cease to continue offering
to any Group Company any rights of purchase, sale, import,
distribution or agency then enjoyed by it.
3 Coinshire hereby acknowledges and agrees with the Company and
procures that the Executive will acknowledge and agree with the Company
that:
3.1 each of the sub-clauses contained in paragraph 2 above constitute an
entirely separate severable and independent covenant and restriction on
him;
3.2 the duration extent and application of each of the restrictions
contained in paragraph 2 are no greater than is necessary for the
protection of the goodwill and trade connections of the Business; and
3.3 in the event that any restriction on Coinshire or the Executive
contained in paragraph 2 shall be found void but would be valid if some
part thereof were deleted such restrictions shall apply with any such
deletion as may be necessary to make it valid and effective.
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Signed by )
for and on behalf of )
ACTIVE IMAGING PLC )
in the presence of:
Signed by )
Xxxxxxx Xxxx Xxxxxx )
for and on behalf of )
COINSHIRE LIMITED )
in the presence of: )
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