Contract
Exhibit
10.97
28
March
2007
Xx.
Xxxxxxx Xxxxxx
0
Xxxxxxx
Xxxxxxx
Xxxxxx
XX00 0XX
Xxxxxx
Xxxxxxx
Dear
Xx.
Xxxxxx:
Re:
Your
Employment Agreement
I
am
writing to confirm the terms of your engagement by Swiftnet Limited (the
"Company"). The terms of your engagement are as follows:
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1.
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You
are employed as the Chairman of the Board of Directors of the Company
("Chairman"). You will report directly and only to the Board of Directors
of the Company. The corporate offices of the Company are located
at
Britannia House, 000 Xxxx Xxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx; however
you will be allowed to fulfil your responsibilities at any other
location
you may deem appropriate. You will be required to travel within the
United
Kingdom and abroad to the extent necessary properly to fulfil your
responsibilities.
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2.
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You
shall have no normal hours of work but are required to devote such
time to
your work as is necessary for the proper performance of your duties
under
this Agreement. We acknowledge that you also have a Consulting Agreement
with the Company’s ultimate parent company, Xfone, Inc. ("Xfone"); that a
significant portion of your working time is therefore devoted to
Xfone;
and that in carrying out your engagement as Chairman you shall in
all
respects comply with the directions and regulations from time to
time
given or made by the Board of Directors of Xfone. In any event of
conflict, the directions and regulations given to you by the Board
of
Directors of Xfone shall prevail.
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| 3. |
This
Agreement shall be in effect for an initial fixed term of five (5)
years,
beginning on 1 January 2007 (the "Initial Effective Term"), and thereafter
shall automatically be renewed for additional terms of three (3)
years
(each, an "Additional Effective Term").
Notwithstanding
the foregoing, each of the Company and you shall have the right
to
terminate the automatic renewal of this Agreement, for any reason
whatsoever, by a
termination
notice in writing, to be provided to the other party not less than
six (6)
months prior to: (i) the expiration of the Initial Effective Term,
or (ii)
the expiration of any
Additional
Effective Term (the "Notice Period").
Notwithstanding
the foregoing, you shall have the right to terminate this Agreement,
for
any reason whatsoever, and at any time, including during the Initial
Effective Term
("Early
Termination").
In the event of Early Termination, the Notice Period shall be of
not less
than eight (8) months.
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During
the Notice Period, the Company shall be entitled to require you to remain away
from work and/or cease to provide any work for you, provided that you shall
continue to be entitled to receive your full salary and all other benefits
payable to you under this Agreement. For the avoidance of doubt, during any
period when you are required to remain away from work pursuant to this paragraph
3 it is agreed that you shall remain bound both by the terms of this Agreement
and by any duties implied under your engagement with the Company.
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4.
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You
shall well and faithfully serve the Company and use your best endeavours
to promote its interests.
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5.
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Save
in relation to an Associated Company (as defined in paragraph 19),
you
shall not without the Company’s Board prior consent in writing be directly
or indirectly concerned or interested (in any capacity whatsoever
whether
as a director, employee, shareholder, agent, partner, consultant
or
otherwise) in any other business that competes with the Company or
an
Associated Company during the period of your engagement except for
shares
in publicly quoted companies held for investment purposes only.
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| 6. | The Company shall pay to you during the term of your engagement a salary at the rate of Forty Eight Thousand British Pounds (£48,000) per annum, such salary to be paid in equal monthly instalments in arrears on the last Friday of each month. |
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7.
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The
payment of your salary shall be made, subject to deductions under
any
applicable law, to a U.K. bank account nominated by
you.
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8.
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The
Company shall provide you with an appropriate executive car or car
allowance with an effective annual cost to the Company of up to Fifteen
Thousand British Pounds (£15,000).
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9.
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You
authorize the Company to deduct from any remuneration accrued and
due to
you under this Agreement or from any pay in lieu of notice, any
over-payment of salary or expenses or payment made to you by mistake,
any
debt owed by you to the Company or any Associated Company, any other
sum
or sums which may be required to be authorized pursuant to Section
13 of
the Employment Rights Xxx 0000 and any tax or Social Security
contributions due in respect of remuneration or other money received
or
receivable by you from the Company.
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| 10. | The Company shall pay your contributions to the following schemes: |
| a) |
Health
care for you and your immediate
family;
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| b) |
Permanent
health;
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| c) |
Life
insurance arrangements (up to a maximum of four times
salary);
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| d) |
Pension
rights - the Company shall contribute a monthly sum equal to 7.5%
of your
salary.
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| e) |
Travel
insurance
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11.
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The
Company shall reimburse to you all traveling, hotel, restaurant and
other
expenses incurred by you in the proper performance of your duties
under
your engagement.
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12.
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Details
of your entitlement to holiday during your engagement and other
arrangements relating to holiday are set out in Schedule 1.
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13.
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The
Company shall be entitled (without being obliged to pay you in lieu
of
notice) to terminate your engagement immediately upon giving written
notice to you if:
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| a) |
you
shall be found guilty, by final judgment of a court of competent
jurisdiction, of serious or persistent misconduct in connection with
your
duties under your engagement; or
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| b) |
you
shall be convicted, by final judgment of a court of competent
jurisdiction, of a severe crime punishable by imprisonment;
or
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| c) |
you
shall be unable by reason of illness or other incapacity to carry
out your
duties under your engagement for an aggregate period exceeding ninety
(90)
days in any calendar year. Notwithstanding the foregoing, in such
event,
the Company shall be obliged to pay you in lieu of notice.
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14. You
have
agreed to the restrictions set out in paragraphs 15, 16, 17 and 18 in order
to
provide protection for the confidential information, goodwill and client
connections of the Company and/or the Associated Companies and to protect the
legitimate interest such companies have in maintaining a stable, trained
workforce.
In
addition, you acknowledge and agree that you are entering into the obligations
in paragraphs 15, 16, 17 and 18 with the Company both for itself and as trustee
for each Associated Company to which those obligations may, by their terms
apply
to the extent that such obligations shall be directly enforceable by such
Associated Companies or by the Company on their behalf.
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15.
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You
will not during the period of your employment directly or indirectly
either on your own behalf or on behalf of or jointly with any Person:
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| a) |
introduce
to any other Person any business of the kind with which the Company
or any
Associated Company could deal nor have any financial interest in
or derive
any financial benefit from any contracts or arrangements between
the
Company or any Associated Company and any other Person without having
fully disclosed such interest or benefit to the Company’ Board or the
relevant Associated Company and having obtained its express prior
written
consent; or
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| b) |
employ
or induce or try to induce any employee to leave the employment of
the
Company or any Associated Company.
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16.
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For
a period of six (6) months from the Termination Date you will not
(directly or indirectly) in any capacity whatsoever (whether as an
employee, director, consultant, partner, shareholder, agent or otherwise)
and whether on your own behalf or on behalf of or jointly with any
other
Person:
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| a) |
seek
or solicit business from, deal with, seek employment or engagement
with,
be employed or engaged by or engage in business with any Restricted
Person
or work on any account or business of any Restricted Person for the
purpose of providing that Restricted Person, in competition with
the
Company or any Associated Company, with services which are the same
as or
similar to any services which were provided by the Company or any
Associated Company to such Restricted Person at any time during the
period
of your employment; or
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| b) |
seek
or solicit business from, deal with, seek employment or engagement
with,
be employed or engaged by or engage in business with any Restricted
Person
or work on any account or business of any Restricted Person for the
purpose of providing that Restricted Person, in competition with
the
Company or any Associated Company, with services which are the same
as or
similar to those which you have been involved in providing to that
Restricted Person during the period of your employment; or
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| c) |
employ
or engage or solicit any Restricted Executive or try to entice any
Restricted Executive to leave the employment of the Company or any
Associated Company.
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17.
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You
shall not, save in respect of the shares held in publicly quoted
companies
for investment purposes only or with the prior written consent of
the
Company’s Board (which shall not be unreasonably withheld) for a period of
six (6) months from the Termination Date carry on or be concerned
or
engaged or interested, directly or indirectly, (whether as principal,
shareholder, partner, employee, officer, agent or otherwise) in any
part
of any trade or business which competes with any part of any trade
or
business carried on by the Company or any Associated Company in which
you
have been actively engaged or involved at any time during the period
of
your employment.
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18.
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You
will not during the period of your employment (otherwise than in
the
proper performances of your duties) or at any time thereafter, divulge,
or
communicate, or copy, or reproduce (in any form or medium) to any
Person,
or copy, or reproduce (in any form or medium) any Confidential Information
concerning the actual or proposed business, contractual arrangements,
dealings, transactions or affairs of the Company or any Associated
Company
or of any its or their clients or business partners and you will
not
utilise any Confidential Information for your own benefit or for
the
benefit of any Person, provided that this obligation shall
cease:
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| a) |
in
respect of any information which you are expressly and properly authorised
in writing to disclose by the Board of the Company or the Board of
any
Associated Company; or
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| b) |
in
respect of any information which you are entitled or required to
disclose
by law to Persons to whom such disclosure is so authorised or required;
or
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| c) |
in
respect of any information which shall become public knowledge from
the
time that such information becomes public knowledge (otherwise than
as a
result of a breach by you of this obligation or as a result of a
breach by
any other Person with a similar
obligation).
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19.
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For the purposes of this Agreement the following words and expressions shall have the following meanings: |
| a) |
"Associated
Companies"
shall mean (A) the ultimate parent company for the time being of
the
Company and any undertaking which is either (i) directly or indirectly
a
subsidiary of that ultimate parent company or directly or indirectly
under
the control, by shareholding, board control or agreement of that
company;
or (ii) an undertaking of which any Associated Company (of the kind
specified in this paragraph above) owns (directly or indirectly)
a twenty
percent (20%) or greater share of such undertaking's ordinary share
capital or in respect of which it has a right (direct or indirect)
either
to exercise control over twenty percent (20%) or more of the total
voting
rights attaching to such undertaking's share capital or to receive
twenty
percent (20%) or more of such undertaking's profits;
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| b) |
“Confidential
Information”
shall include but is not limited to information comprised in designs,
drawings, databases, software, manuals, instructions and catalogues
held
in whatever form relating to the creation, organisation, production
or
supply of any products or services by the Company or any Associated
Company or by or to any of the suppliers, clients, partners or joint
venturers of such company, information relating to the current or
prospective marketing or sales of any products or services of the
Company
or any Associated Company, including lists of clients' and suppliers',
names, addresses and contacts, sales targets and statistics, market
share
and pricing statistics, research, reports, advertising and promotional
material, trade secrets, unpublished information relating to the
Company's
or any Associated Company's intellectual property and any other
commercial, financial or technical information relating to businesses
or
prospective businesses of the Company or any Associated Company or
to any
client or potential client or supplier or potential supplier, licensee
or
employee of the Company or any Associated
Company.
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| c) |
"Person"
shall mean any individual, partnership, firm, company, corporation
or any
other entity.
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| d) |
"Restricted
Person"
shall mean any Person which is
both:
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| i) |
a
Person to whom the Company or any Associated Company has provided
services
and/or a Person with whom the Company or any Associated Company has
carried on or agreed to carry on any business of any kind whatsoever
in
each case with a view to a profit or gain;
and
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| ii) |
a
Person with whom you personally have had dealings or of whom you
have
gained knowledge or a Person in respect of whom any employee who
reports
directly to you, personally has had dealings or has gained
knowledge;
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| iii) |
in
each case at any time during the period of your employment;
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| e) |
"Restricted
Executive"
shall mean any person with whom you have worked or come into contact
during the period of your employment and who is employed under an
Executive contract (as opposed to a Staff contract) by the Company
or any
Associated Company (as the case may
be).
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| f) |
"Termination
Date"
shall mean the date on which your employment with the Company ceases,
for
any reason whatsoever.
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20.
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You acknowledge and agree that: |
| a) |
if
in the course of your engagement you create or participate in the
creation
of any works, materials or inventions of any sort in any medium whatsoever
whether known about at the date of this Agreement or otherwise (“Works”)
then all intellectual property or other proprietary rights of any
sort
(including but not limited to copyright, patent right and design
right) in
and to the Works shall be and remain the absolute property of the
Company
or any relevant Associated Company and by signing this Agreement
you
hereby waive to the fullest extent possible by law, any right whatsoever
(including all moral and other similar rights) in and to the Works
(and
any part of them); and
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| b) |
the
Company and any Associated Companies shall be entitled without any
further
consent or payment to use, reproduce and exploit throughout the world
in
all media (whether now known or invented later) the results and proceeds
of your engagement without regard to whether such use, reproduction
or
exploitation occurs before, during or after the termination of your
engagement and you hereby grant all such consents as are or may be
necessary to enable such use, reproduction or exploitation;
and
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| c) |
you
will do or execute and/or procure the doing or execution of all such
acts
and documents or things as may be necessary to give full effect to
the
provisions of this paragraph 20.
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21.
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Upon
the termination of your employment however it occurs you shall immediately
deliver to the Company (or at the Company’s option destroy/irrevocably
delete) all property, assets and/or information of any kind whatsoever
(however stored) within your possession or under your control relating
to
the affairs and business of the Company or any of the Associated
Companies
or any of their clients whether or not the same were originally supplied
by the Company or by any of the Associated Companies. For the avoidance
of
doubt this obligation shall apply to any such information stored
on any
disk or electronic device of any kind (including without limitation
computers) in your possession or under your control.
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22.
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The
particulars of your terms of employment as set forth herein are effective
as at 1 January 2007 and are provided in accordance with the Employment
Rights Xxx 0000. We acknowledge that your period of continuous employment
with the Company commenced on 12 February
1990.
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23.
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As required by the Employment Rights Xxx 0000 the Company gives you notice that: |
| a) |
Should
you have any grievance relating to your employment with the Company,
you
should follow any procedures adopted by the Company from time to
time.
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| b) |
Matters
of a disciplinary nature will be decided according to the particular
circumstances and in accordance with the Company disciplinary procedure
from time to time.
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| c) |
There
are no collective agreements directly affecting the terms and conditions
of your employment.
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| d) |
If
you are required to work outside the United Kingdom for a period
of more
than one month, the Company will at that time provide you with the
requisite statutory written particulars concerning the arrangements
for
your work overseas.
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24.
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Whilst
the provisions of this Agreement are considered by the parties to
be
reasonable in all circumstances it is agreed that if any one or more
of
such provisions shall, either taken by itself or themselves together,
be
adjudged to go beyond what is reasonable in all the circumstances
for the
protection of the legitimate interests of the Company and the Associated
Companies but would be adjudged reasonable if any particular provision
were deleted or if any part or parts of the wording thereof were
deleted,
restricted or limited in a particular manner then the relevant provision
shall apply with such deletion, restriction or limitation as the
case may
be and the remainder of the provisions of this Agreement shall be
unaffected by any such deletion, restriction or limitation.
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25.
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You
agree that the limit on weekly working time contained in Regulation
4 of
the Working Time Regulations 1998 does not apply to you. The Company
and
you agree that your consent, for the purposes of this paragraph 25,
shall
continue indefinitely except that you may withdraw such consent at
any
time by giving the Company one (1) month notice of your wish to do
so.
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26.
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If
during the period of your employment under this Agreement you shall
cease
to be a director of the Company your employment shall continue and
the
terms of this Agreement (other than those relating to the holding
of
office of director / chairman) shall continue in full
force.
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27.
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This
Agreement shall be governed by and construed in accordance with English
law and you and the Company submit to the non-exclusive jurisdiction
of
the English courts (or any equivalent body such as employment tribunals)
in connection with it.
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28.
|
Your
signature to this Agreement confirms that you consent to the Company
and/or organisations who process data (including, but not limited
to,
payrolls) on our behalf: (a) holding, recording, using, processing
information about you (some of which may be sensitive e.g. relating
to
your health) for the purposes of giving effect to this Agreement;
and (b)
transferring this information to Associated Companies and to third
party
companies which are not Associated Companies (which Associated Companies
and third party companies may or may not be outside the European
Union)
for the same purposes, for example, to companies through which employment
benefits may be provided to you.
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29.
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In
accordance with the Health and Safety at Work Xxx 0000 you should
take all
reasonable steps to safeguard your own health and safety and that
of any
person who may be affected by your activities at work. You must co-operate
with the Company and any other persons so that this requirement may
be
complied with.
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30.
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You
hereby irrevocably appoint the Company to be your attorney in your
name
and on your behalf to execute any documents or do any acts or things
which
are necessary (i) to vest in the Company (or any Associated Company)
the
right and title to any Works; and/or (ii) to transfer to the Company
(or
as it shall direct) the ownership of any shares in the Company or
any
Associated Company which you hold as a nominee on behalf of the Company
or
any Associated Company.
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31.
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In this Agreement references to any statute, regulation or other legislation shall be deemed to be a reference to such statute, regulation or legislation as amended or replaced from time to time. |
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32.
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This Agreement shall continue in full force and effect following the termination of your employment insofar as its terms are expressed to continue after the Termination Date. |
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33.
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Except as otherwise expressly stated in this Agreement, nothing in this Agreement confers any rights on any person (other than the parties to this Agreement) pursuant to the Contracts (Rights of Third Parties) Xxx 0000. |
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34.
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This Agreement shall constitute the entire agreement between the Company and you with respect to the subject matter hereof, and shall supersede all previous, oral and/or written, negotiations, commitments, understandings and agreements relating to the subject matter hereto. |
The
Company shall be obliged if you would please confirm your acceptance of the
above engagement, on the above terms by executing this Agreement as your deed
and returning it to the Company. The receipt by the Company of the signed
Agreement will constitute a legally binding agreement between you and the
Company.
Yours
sincerely
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| For and on behalf of Swiftnet Limited | By: | /s/ Xxxx Xxxxxx |
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||
| Managing Director | ||
| Executed
as a Deed ) by Xxxxxxx Xxxxxx ) |
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| by way of acceptance of the ) | By: | /s/ Xxxxxxx Xxxxxx |
| above terms in the presence of: ) |
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|
Witness
Signature: /s/ Xxxx Xxxxxxx
Witness
Name: (Please Print) Xxxx Xxxxxxx
Witness
Address: 6/19 Rabbi Xxxxx Xxxxxx St.
Modiin
Ilit 00000
Xxxxxx
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SCHEDULE
1
SICKNESS
BENEFITS
If
at
anytime during which you are in receipt of salary payable by the Company you
shall become entitled to Sickness Benefit or other State Benefits, all money
to
which you may become entitled in respect of these benefits will automatically
be
deducted from your salary in such manner as may be found convenient to, or
otherwise decided by, the Company.
The
Company shall pay your salary in full in respect of the first thirty (30) days
of absence due to illness in any year (being a year commencing 1st
January)
during the period of your employment hereunder but you shall not receive any
payment in respect of any subsequent period of illness in any such year. You
will comply with all absence reporting procedures and other formalities from
time to time notified by the Company to you in relation to statutory sick pay
requirements.
HOLIDAY
ENTITLEMENT
Normal
bank holidays plus thirty (30) days holiday per annum paid at the normal salary
rate.
Holiday
entitlement is accumulated in accordance with applicable legislation or Company
policy. The holiday year runs from 1st
January
to 31st
December. You shall be entitled to carry forward not more than twenty (20)
days
of holiday each year without needing to seek permission of the Company’s
Board.
Your
holiday entitlement is inclusive of your statutory entitlement which is twenty
(20) days per annum.
HOLIDAY
ENTITLEMENT ON LEAVING
On
leaving, holiday pay is calculated in accordance with applicable legislation
or
with Company policy (currently one fifty-second (1/52)
of the
annual holiday entitlement for each completed week worked in the current holiday
year, less any holiday already taken (whichever is the most beneficial to you)).
No
payment of accrued holiday pay will be made in the case of dismissal for
misconduct.
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