DATED 15 NOVEMBER 2005
------------------------
(1) LINDSAY XXXXXXXX XXXXX
AND
(2) THE PRIVATE TREATY MARKET PLC
AND
(3) PRIVATE TRADING SYSTEMS INC
______________________________________________
SERVICE AGREEMENT
_____________________________________________
00 Xxxxxxx Xxxxxx Xxxxxx X0X 0XX
Tel: 000 0000 0000 Fax: 000 0000 0000
This Agreement is made on the 8th day of November 2005
BETWEEN:
1. THE PRIVATE TREATY MARKET PLC (Company Number 04696513) whose registered
office is at 0 Xxxx Xxxx, Xxxxx Xxxxxxxxx, Xxxxxxxxxxxxx, XX0 0XX ("the
Company")
2. PRIVATE TRADING SYSTEMS INC registered under the laws of Nevada and of
00000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 ("PTSI").
and
3. LINDSAY XXXXXXXX XXXXX of 00 Xxxxxxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxx X0 0XX
("the Executive")
IT IS HEREBY AGREED AS FOLLOWS:
1 INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:
1.1.1 "GROUP COMPANY" - a company which is from time to time a
Subsidiary or a Holding Company of the Company or a Subsidiary
(other than the Company) of a Holding Company of the Company
1.1.2 "GROUP" the Company and any Group Companies from time to time;
1.1.3 "THE BOARD" - the board of directors from time to time of the
Company including any committee of the board duly appointed by
it;
1.1.4 "SUBSIDIARY" and "Holding Company" - the meanings respectively
ascribed thereto by s. 736 of the Companies Xxx 0000 as
originally enacted;
1.1.5 "THE ERA"- the Employment Rights Xxx 0000; and
1.1.6 "TERMINATION DATE" means the date of termination of the
Executive's employment.
1.2 References in this Agreement to statutes shall include any statute
modifying, re-enacting, extending or made pursuant to the same or which is
modified, re-enacted, or extended by the same.
1.3 Headings are for ease of reference only and shall not be taken into account
in the construction of this Agreement.
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2 APPOINTMENT
2.1 The Company hereby appoints the Executive and the Executive agrees to serve
the Company as President and Chief Executive Officer and as a statutory
Director from the date hereof ("the Commencement Date") or in such
comparable position as may from time to time in its absolute discretion be
specified by the Board and as a Director of PTSI.
2.2 If the Executive is unable to fully carry out his duties due to illness or
incapacity, the Company may, in its absolute discretion, engage or employ
any other person or persons to perform some or all of the Executive's
duties on a temporary basis until the Executive is able fully to resume the
proper performance of his duties hereunder.
2.3 Nothing in this Agreement shall mean or be deemed to mean that the Company
is obliged to provide work to the Executive or that the Executive has the
right to perform services for the Company or the Group Company.
3 WARRANTIES ON APPOINTMENT
3.1 The following warranties will be deemed to be given by the Executive to the
Company on the date of this Agreement:
3.1.1 he has disclosed to the Board all information which might lead to
a conflict between his personal interests and the interests of
the Company in the light of his knowledge of the Company's
current plans and activities. The said declaration includes
without limitation a list of all his current substantial
shareholdings directorships, partnerships and appointments; and
3.1.2 he has taken independent legal advice about the post termination
restrictions referred to at clause 16 and he hereby agrees that
the said restrictions and definitions are reasonable as at the
date of this Agreement.
4 TERM OF APPOINTMENT
4.1 Subject to clause 18 hereof, the Executive's employment shall continue from
the Commencement Date for a fixed period of five years until 7 November
2010 ("the Fixed Term"). The term of employment under this Agreement may be
extended by further written agreement between the parties in additional
increments of two years or longer, as the parties may agree, with such
agreement to be reached by the parties no later than 60 days prior to the
expiration of the existing agreement. The Executive can at any time during
his employment, terminate his employment by giving to the Company 90 days
written notice to terminate.
4.2 The Company reserves the right, exercisable in its absolute discretion, to
terminate the Executive's employment by making a payment in lieu of the
unexpired part of the fixed period set out in clause 4.1 above or any
further period or applicable notice agreed between the parties from time to
time. Any payment in lieu of notice shall consist of a sum equivalent to
the
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Executive's basic salary (at the rate applicable at the date notice is
given) and benefits (including within limitation bonus, car provision or
allowances, insurance cover and pension contributions) specified in this
Agreement or otherwise, or a payment of the monetary value in lieu thereof,
for the unexpired part of the Fixed Term or any further period or
applicable notice agreed between the parties from time to time. Such
payment in lieu shall be subject to such lawful deductions as the Company
is required to make.
4.3 The Executive's continuous employment with the Company will begin on the
Commencement Date. No employment with a previous employer will count as
part of the Executive's period of continuous employment with the Company.
5 POWERS, DUTIES, WORKPLACE AND WORKING HOURS
5.1 During the continuance of his employment hereunder the Executive shall owe
a duty of fidelity and good faith to the Company which shall include the
following:
5.1.1 unless prevented by ill health or other unavoidable cause during
Normal Working Hours (as defined in clause 5.3) the Executive
shall devote his attention and abilities to carrying out his
duties hereunder and to the business of the Company and any Group
Company, and use his best endeavours to develop the business and
interests of the Company and any Group Company and will not
extend, develop or evolve the business of the Company and any
Group Company other than through the Company and any Group
Company and will bring to the attention of the Company any
relevant business opportunities for the Company or any Group
Company of which the Executive becomes aware;
5.1.2 the Executive shall diligently and faithfully serve the Company
and its Group Companies to the best of his ability and carry out
his duties in a proper and efficient manner and use his best
endeavours to promote and maintain the interests and reputation
of the Company and of its Group Companies;
5.1.3 the Executive shall exercise such powers and perform such duties
in relation to the business of the Company and/or of its Group
Companies as may from time to time be vested in or assigned to
him by the Board;
5.1.4 the Executive shall keep the Board promptly and fully informed
(in writing if so requested) of his conduct of the business or
affairs of the Company and/or its Group Companies and provide
such explanations as the Board may reasonably require; and
5.1.5 inform the Company Secretary of any change in his home address or
telephone number, bank or building society details (for payment
purposes) relevant qualifications and licences or any criminal
charges or convictions.
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5.2 Subject to clause 2.4 the Executive's normal place of work shall initially
be his home and thereafter shall be the Company's offices in Central London
from time to time.
5.3 Subject to clause 2.4 the Executive's normal working hours shall be five
days each week for such hours as may be necessary for the proper and
efficient performance of the Executive's duties.
6 WORKING TIME REGULATIONS OPT-OUT
The parties agree that the Executive is regarded as a "managing executive"
for the purposes of the Working Time Regulations 1998 ("the Regulations").
In any event, the Executive accepts that by signing this agreement he has
agreed that regulation 4(1) of the Regulations (which limits the
Executive's working time to an average of 48 hours for each 7 days) shall
not apply. The Executive accepts that this opt-out will be for an
indefinite period but may be terminated by the Executive giving 3 months
written notice of termination of the opt-out to the Company at any time.
7 RESTRICTIONS DURING EMPLOYMENT
The Executive shall not during the continuance of his employment hereunder
(whether during or outside of his employment or his working hours) without
the prior consent in writing of the Board either alone or jointly with or
on behalf of others and whether directly or indirectly and whether as
principal, partner, agent, shareholder, director, employee, consultant or
otherwise howsoever shall not engage in, carry on or be interested or
concerned in any other business, trade, profession, occupation or
fee-earning activity which competes with the business of the Company or any
Group Company or which may, in the opinion of the Board, cause conflicts of
interest in connection with the Executive's duties to the Company or any
Group Company. This shall not preclude him from holding not more than three
per cent of any class of issued shares or other securities which are listed
or dealt in on any recognised stock exchange by way of bona fide investment
only.
8 REMUNERATION
8.1 During his appointment the Company shall pay the Executive a basic salary
at the rate of 150,000(British Pounds Sterling) (US$262,000) per annum
which shall accrue from day to day and be payable in equal monthly
instalments in respect of the current month, on or before the last day of
each month or the nearest working day thereto and shall be subject to all
lawful deductions. The salary shall be deemed to include any fees
receivable by the Executive as a Director of the Company or any Group
Companies. The Executive's salary shall be reviewed 90 days before each
anniversary of the Commencement Date by the Compensation Committee. For the
avoidance of doubt, remuneration shall not be reduced without the prior
written consent of the Executive.
8.2 For the purposes of the ERA the Executive authorises the Company at any
time during his employment, and in any event upon termination howsoever
arising, to deduct from the Executive's remuneration under this Agreement
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any sums from time to time owed by him to the Company or any Group Company,
including but not limited to any outstanding loans, advances, excess
holiday, the cost of repairing any damage or loss of the Company's property
caused by the Executive (and of recovering it) and any other monies owed by
the Executive to the Company.
8.3 Any benefits provided by the Company or any Group Company to the Executive
which are not expressly referred to in this Agreement shall be regarded as
ex gratia and made at the absolute discretion of the Company and shall not
confer any contractual entitlement upon the Executive.
8.4 The Executive shall be entitled to receive the sum of 140,000(British
Pounds Sterling) subject to all lawful deductions, by way of a sign-on
bonus. This sign-on bonus will be paid to the Executive within 60 days of
the Commencement Date.
8.5 In addition to the bonus at clause 8.4 above, the Executive shall be
entitled to an annual bonus which shall be based on performance targets and
measures to be agreed in writing between the Executive and the Compensation
Committee in advance of the commencement of the year for which such
performance measures and targets shall be in place. For the first year of
this Agreement, the performance measures and targets will be established
within 60 days of the Commencement Date. The bonus shall be a minimum of
75% of the Executive's basic salary and a maximum of 150% of the
Executive's basic salary in any given year.
8.6 Option Grants
--------------
Executive will have been granted as of December 2004 an option entitling
him to purchase 6,000,000 shares of the common stock of PTSI at an exercise
price of US $00.50 (Fifty Cents) per share, the fair market value at the
time Executive was granted the option. The option is to be fully vested
upon issuance and shall have full registration rights, and shall have an
expiration period of seven years. As an additional incentive, PTSI will
issue to Executive an additional option under the Company's Long-Term
Equity Incentive Plan once adopted entitling Executive to purchase an
additional 6,000,000 shares of PTSI common stock pursuant to PTSI's
standard form of option agreement. The sequent option will vest in three
equal installments on an annual basis over a three year period, contingent
only upon Executive's continued employment with PTSI or the Company.
9 EXPENSES
9.1 The Company shall reimburse to the Executive first class travel expenses,
hotel, entertainment and other out-of-pocket expenses, and travel expenses
of his spouse where appropriate, reasonably incurred by him in the proper
performance of his duties (which shall include without limitation attending
approved professional meetings and furthering the Company's interests)
hereunder subject to his compliance with the Company's guidelines as
amended from time to time relating to expenses and to production (if
required) of receipts, vouchers or other evidence of actual payment of the
expenses.
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9.2 Throughout the Executive's employment, the Company shall pay to the
Executive the sum of 5,000(British Pounds Sterling) (US$8,750) per annum in
respect of obtaining tax, legal and other professional advice relating to
his office and employment.
9.3 Throughout the Executive's employment, the Company shall provide suitable
office equipment (to include without limitation computers, a photocopier,
fax, telephone, and such other equipment the Executive requires to carry
out his duties) which the Company will upgrade or replace every three
years. The Company agrees that upon termination of this Agreement howsoever
arising, such equipment shall be transferred to the Executive and so will
not be returned to the Company.
10 BENEFITS
10.1 Private Medical Insurance
---------------------------
Throughout his employment the Executive and his spouse and dependent
children up to the age of 18 shall be entitled to membership of any Company
or Group private medical insurance scheme in place. In the absence of such
a scheme being in place or if the Executive elects to arrange his own
cover, the Company will pay the reasonable cost of the Executive putting
such cover into place.
10.2 Permanent Health Insurance and Critical Illness Cover
-----------------------------------------------------------
Throughout his employment the Executive is entitled to participate in the
Company or Group permanent health insurance and critical illness schemes if
any are in place. The Company shall procure that such cover shall provide
for payments over a minimum period of five years at a daily rate of
285(British Pounds Sterling) (US$500) or more. If there are no such schemes
in place or if the Executive elects to arrange his own cover, the Company
will pay the reasonable cost of the Executive putting such cover into
place. Furthermore, the Company agrees not to terminate the Executive's
employment if such termination prejudices the Executive's right to receipt
of benefits under such a scheme.
10.3 Life Assurance
---------------
Throughout his employment the Executive is eligible to participate in the
Company's or Group's life assurance scheme for the time being in force. The
Company will procure that such life cover shall be for a sum equivalent to
2,000,000(British Pounds Sterling) (US$3,500,000), and be payable to the
beneficiary of the Executive's choice. If no such cover is in place, the
Company will pay the reasonable cost of putting such cover in place.
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10.4 Director's and Officers liability
------------------------------------
10.4.1 The Company will arrange, with effect from the commencement of
the Executive's employment, directors' and officers' liability
insurance for the Executive's benefit and all other appropriate
and relevant insurance to cover all acts done by him in good
faith as an officeholder of the Company and Group.
10.4.2 The Company also hereby agrees to indemnify the Executive and to
keep him indemnified on a full indemnity and continuing basis,
even after the termination of his office, employment and/or this
Agreement, in respect of all matters, costs, claims, expenses and
legal expenses arising out of his appointment as a director of
and/or his employment with the Company and Group. This indemnity
shall all survive any revisions to this Agreement or the
Company's Memorandum and Articles of Association or amendment or
repeal of any of the Bylaws relevant to the Group.
10.5 Professional Membership
------------------------
The Company shall throughout the Executive's employment pay the cost of two
appropriate memberships (which shall include without limitation memberships
of any appropriate professional bodies or associations or clubs) for the
Executive in each year.
10.6 Motor car
----------
10.6.1 During the Executive's employment under this Agreement and
whilst the Executive is legally entitled to drive, the Company
will provide him with a motor car for use in the performance of
his duties under this Agreement and for his personal use. The
type and model of the car will be determined by the Board and
will at all times be commensurate with the Executive's status and
of equivalent grade to the company car driven by the Executive as
at the date of commencement of this Agreement. Subject as follows
the Company will bear the cost petrol and oil whether or not
associated with personal use, insuring, testing, taxing,
repairing and maintaining the motor car and providing suitable
accidental break down cover.
10.6.2 The Executive will alternatively, if he does not wish to be
provided with a company car in accordance with clause 10.6.1, be
entitled to a car allowance of 10,000(British Pounds Sterling)
per annum which shall be paid with salary and be subject to PAYE
deductions and any other statutory deductions. The amount will be
reviewed and may be adjusted annually.
10.6.3 The Executive will be permitted reasonable use of the motor car
for his own private purposes (including use on holidays) but must
pay all fuel expenses directly attributable to such use.
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10.6.4 The Executive will take good care of the motor car and will
observe the terms and conditions of any policy of insurance and
all regulations issued from time to time by the Company regarding
the use of motor cars provided to its officers or employees.
10.6.5 The motor car will be replaced every three years with such make
and model as the Board may reasonably determine.
10.6.6 On the termination of his employment under this Agreement for
any reason the motor car then in the Executive's possession shall
become his personal property free and clear of all liens or
further obligations.
10.7 Travel Accident Insurance
---------------------------
Throughout his employment, the Company shall put in place for the benefit
of the Executive travel accident insurance in the sum of 2,000,000(British
Pounds Sterling) (US$3,500,000) which shall be payable to the beneficiary
of the Executive's choice.
10.8 Other Benefits
---------------
The Executive shall be entitled to all other benefits provided to other
senior executive employees of the Company or the Group, as and when such
benefits become available.
11 PENSION
The Company will pay contributions at the rate of an amount equivalent to
20% per annum of the Executive's basic salary to an Inland Revenue approved
personal pension scheme of his choice subject to relevant Inland Revenue
limits from time to time. There is not a contracting-out certificate in
force in respect of the Executive's employment.
12 ABSENCES
The Executive will be permitted to be absent from the Company during
working days to attend professional meetings and to attend to such outside
professional duties in the Company's field as have been agreed between him
and the Board form time to time. For the avoidance of doubt, attendance at
such approved meetings and the accomplishment of approved professional
duties shall be deemed to be part of his employment duties and part of his
working hours as defined in clause 5.3 above.
13 HOLIDAYS
13.1 The Company's holiday year runs from 1 January to 31 December ("Holiday
Year").
13.2 In addition to normal bank and other public holidays in England, the
Executive shall be entitled in every Holiday Year to 25 working days paid
holiday to be taken at such time or times as may be agreed with the Board.
For the purposes of the Working Time Regulations, the Executive is required
to
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take a minimum of 20 days holiday including normal bank and public holidays
in England in each Holiday Year ("Statutory Holiday").
13.3 The Executive may carry forward all holiday other than the Statutory
Holiday.
13.4 Paid holiday entitlement shall accrue at the rate of 2.08 working days per
month of completed service in each calendar year and on the determination
of his employment hereunder the Executive shall be entitled to pay in lieu
of outstanding holiday entitlement in respect of that calendar year or
shall be required to repay to the Company for holiday taken in excess of
his actual entitlement and for the purposes of this clause the basis of
calculation shall be 1/260 annual salary for each day's holiday
entitlement. The Company reserves the right to require the Executive to
take any accrued unused holiday entitlement during his period of notice.
14 INCAPACITY
14.1 If the Executive is absent from work due to illness or accident he shall
notify a member of the Board as soon as possible and if this incapacity
continues for seven or more consecutive days he shall on the seventh day of
such absence and on each succeeding seventh day submit a doctor's
certificate to the Company.
14.2 If the Executive is absent from work due to incapacity duly notified and
certified in accordance with clause 14.1 the Company will pay the Executive
his full remuneration for up to an aggregate of 12 months in any 24 month
period and thereafter such remuneration as the Board shall in its absolute
discretion determine until he has resumed his duties.
14.3 The remuneration paid under clause 14.2 for absence due to incapacity shall
include any statutory sick pay (SSP) payable and when this is exhausted
shall be reduced by the amount of social security sickness benefit or other
benefits recoverable by the Executive (whether or not recovered). For SSP
purposes the Executive's qualifying days are Monday to Friday.
14.4 For the purposes of clauses 14.2 and 14.3 above, "incapacity" shall mean
any illness, accident or other likely cause but excluding any illness or
accident caused by the Executive's own negligence or self infliction such
as alcoholism and/or drug abuse which prevents the Executive from
performing his duties hereunder.
14.5 If the Executive becomes incapable of performing his duties and
responsibilities hereunder for any reason which entitles him to recover
damages from a third party any sums paid to the Executive by the Company
during the period of such incapacity will constitute a loan which must be
repaid by the Executive to the Company following recovery of such damages
(provided that the Executive will not be required to repay more to the
Company than has been recovered in damages for loss of earnings).
14.6 If the Executive is caused to be incapable of performing his duties and
responsibilities hereunder by a third party and the Company wishes to bring
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an action against such third party the Executive will (at the Company's
expense) provide all such assistance and co-operation as the Company may
reasonable require for the purpose of prosecuting such an action.
15 INVENTIONS AND IMPROVEMENTS
15.1 If the Executive creates or discovers or participates in the creation or
discovery of any inventions or Intellectual Property during the course of
his employment with the Company, the Executive shall promptly give to the
Company full details of such inventions or Intellectual Property and if
such inventions or Intellectual Property in the opinion of the Company
relate to or are capable of being used in the business for the time being
carried on by the Company or any Group Company or if such inventions or
Intellectual Property shall be an invention belonging to the employer as
defined in Section 39 (1) of the Patents Xxx 0000, then without prejudice
to any other right of the Company or any Group Company any such inventions
or Intellectual Property shall be the absolute property of the Company and
the Executive shall forthwith and from time to time both during his
employment and thereafter at the request and expense of the Company:
15.1.1 give and supply all such information, data, drawings and
assistance as may be necessary to enable the Company to exploit
such inventions or Intellectual Property to the best advantage;
15.1.2 execute all documents and do all things which may be necessary
or desirable for obtaining patent or other protection for the
inventions or Intellectual Property in such parts of the world as
may be specified by the Company and for vesting the same in the
Company or as it may direct;
15.1.3 not do any act or fail to do any act which might invalidate or
adversely affect any inventions or Intellectual Property.
15.2 The Executive irrevocably appoints the Company to be his attorney in his
name and on his behalf to sign execute or do any such instrument or thing
and generally to use his name for the purpose of giving to the Company (or
its nominee) the full benefit of the provisions of this clause 16 and in
favour of any third party a certificate in writing signed by any director
or the Secretary of the Company that any instrument or act falls within the
authority conferred by this clause shall be conclusive evidence that such
is the case.
15.3 The Executive waives all of his moral rights as defined in the Copyright
Designs and Patents Xxx 0000 in respect of any acts of the Company or any
acts of third parties done with the Company's authority in relation to the
inventions and Intellectual Property which are the property of the Company
(or are the property of the Company by virtue of clause 15.2 hereof).
15.4 Rights and obligations under this clause shall continue in force after
termination of this Agreement in respect of inventions or Intellectual
Property made or discovered during the Executive's employment under this
Agreement and shall be binding upon his representatives.
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15.5 In this clause 15, "Intellectual Property" includes letters patent, trade
marks, service marks, trade names, designs, utility models, copyrights
(existing and future), 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, improvements to procedures, 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.
16 RESTRICTIONS AFTER EMPLOYMENT
16.1 For the purposes of this clause the following definitions shall apply:
"Customer" shall mean any customer of the Company or any Group Company
within a period of 12 months before the Termination Date with whom or
which, during such period the Executive had significant dealings in the
course of his employment by the Company or any Group Company and/or the
Executive had significant influence over or a relationship of loyalty with
in the course of his employment by the Company or any Group Company.
"Prospective Customer" means any potential customer with whom, to the
knowledge of the Executive the Company or any Group Company has been in
active negotiation or has submitted tenders at any time within a period of
6 months before the Termination Date;
"Services" means the any product or service relating to software in the
turnkey securities exchanges field developed or being developed or marketed
sold or provided by the Company or any Group Company during the 12 months
immediately preceding the Termination Date with which the Executive's
duties were concerned or for which he was responsible during the 12 months
immediately preceding the Termination Date;
"Supplier" shall mean any individual, company or organisation with which
the Company or any Group Company has entered into joint venture agreement,
license agreement, collaboration agreement, or any other commercial
agreement in connection with the Services or which provides technical or
specialist services to the Company and any Group Company in connection with
the Services and with which the Executive has had significant dealings in
the course of his employment within a period of 12 months before the
Termination Date.
"Prospective Supplier" shall mean any prospective Supplier with whom the
Company has been in active negotiation within a period of 6 months before
the Termination Date.
"Termination Date" shall mean the date of termination of the Executive's
employment.
16.2 In order to protect the legitimate business of the Company and any Group
Company with which the Executive shall be significantly involved during the
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course of his employment, the Executive hereby undertakes that (without the
prior written consent of the Board) he shall not:
16.2.1 for a period of 6 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (on his own
behalf or on behalf of any other person, firm or company) solicit
or entice away or seek to solicit or entice away from the Company
or any Group Company whether by means of the supply of names or
expressing views on suitability or otherwise, any person who at
the Termination Date was employed by the Company or any Group
Company:
16.2.1.1 as a Director;
16.2.1.2 in a managerial capacity;
16.2.1.3 who had sales responsibilities with significant
customer contact;
16.2.1.4 in a technical capacity;
16.2.1.5 who had confidential information as defined in clause
17 hereof
and with whom the Executive had dealings, in the course of his
employment, within a period of 6 months before the Termination
Date and who were engaged in supplying Services within a period
of 6 months before the Termination Date.
16.2.2 for a period of 12 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on his
own behalf or on behalf of any other person, firm or company)
solicit or seek in any capacity whatsoever any business, order or
custom for any services which are competitive with the Services
from any Customer or otherwise interfere with the relationship
between the Company or any Group Company and any Customer;
16.2.3 for a period of 6 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on his
own behalf or on behalf of any other person, firm or company)
solicit or seek in any capacity whatsoever any business, order or
custom for any services which are competitive with the Services
from any Prospective Customer or otherwise interfere with the
relationship between the Company or any Group Company and any
Prospective Customer;
16.2.4 for a period of 12 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on his
own behalf or on behalf of any other person, firm or company)
seek to entice away from the Company or otherwise interfere with
the terms of dealing or the relationship between the Company and
any Group Company and any Supplier;
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16.2.5 for a period of 6 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on his
own behalf or on behalf of any other person, firm or company)
seek to entice away from the Company or otherwise interfere with
the terms of dealing or the relationship between the Company and
any Group Company and any Prospective Supplier;
16.3 After the termination of his employment, for any reason whatsoever, the
Executive shall not for any reason represent himself as still connected
with the Company or any Group Company or as still authorised to conduct
business on behalf of the Company or any Group Company.
16.4 The parties hereby agree that in the event of the Executive being dismissed
in circumstances amounting to Unfair Dismissal or in breach of contract,
the above restrictions will cease to apply.
16.5 Each of the restrictions in the sub-clauses of this clause shall be
construed as separate and individual restrictions and shall each be capable
of being severed without prejudice to the other restrictions or the
remaining provisions of this Agreement.
17 CONFIDENTIAL INFORMATION
17.1 In addition and without prejudice to the Executive's common law obligations
to keep information secret the Executive shall not (except for the purpose
of properly performing his duties hereunder or with the prior express
written consent of the Company or unless ordered to do so by a Court)
during his employment or after its termination use, disclose or communicate
and shall use all reasonable endeavours to prevent the improper use,
disclosure or communication of:
17.1.1 any information of a confidential nature (including but not
limited to information regarding the business, accounts,
finances, trading, Customer lists, Customers, Suppliers and
manufacturers details and information, fee rates, ways of
calculating fee rates, quotations and tenders, licences,
contractual arrangements, negotiated prices, contract details,
details of suppliers and contractual arrangements with them,
employee details, software, intellectual property rights,
designs, business plans, results of developments, marketing
strategies, ideas and future plans for the business or otherwise
howsoever) of the Company or any Group Company;
17.1.2 any confidential report or research undertaken by or for the
Company or any Group Company during the course of his employment;
17.1.3 any information designated as confidential by the Company or any
Group Company or which to his knowledge has been supplied to the
Company or any Group Company subject to an obligation of
confidentiality.
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17.2 In this clause "information" and "confidential report or research" refer to
confidential information and confidential reports and research which came
to the knowledge of the Executive during the course of his employment.
17.3 In order to protect the Company's confidential information, the Executive
agrees that he will not at any time make or arrange to have made any copy,
abstract, summary or precis of the whole or any part of any document,
computer programme or record belonging to the Company except when required
to do so for the purpose of properly performing his duties hereunder, and
the Executive acknowledges that any such copy, disk, programme, abstract,
summary or precis shall belong to the Company and shall be delivered up to
the Company on termination of his employment.
18 TERMINATION
18.1 If the Executive commits any fundamental breach of the Agreement, including
without limitation any of the following:
18.1.1 the Executive is adjudged bankrupt or enters into any
composition or arrangement with or for the benefit of his
creditors including a voluntary arrangement under the Insolvency
Xxx 0000;
18.1.2 the Executive is guilty of gross negligence or an act of fraud
against the Company; or
18.1.3 any material and fundamental breach of this Agreement not
remedied by the Executive Xxxxxxx within 30 (thirty) days of
written notice to him from the Company, which notice must include
a detailed and specific description of the alleged material
breach; or
18.1.4 the Executive shall be convicted of any criminal offence (other
than an offence under the road traffic legislation in the United
Kingdom or elsewhere for which a penalty other than imprisonment
(either immediate or suspended) is imposed) or other than one
which in the opinion of the Board does not adversely affect his
position as a director;
18.1.5 being suspended/disqualified by any relevant regulatory
authority which would prevent the Executive from carrying out his
duties;
18.1.6 the Executive shall be or become prohibited by law from being a
director;
18.1.7 the Executive shall resign as a director of the Company or any
Group Company without the consent of the Board;
then the Company shall be entitled by written notification to the Executive
to forthwith determine his employment under this Agreement. In the event of
termination pursuant to this sub-clause 18.1, the Executive shall have no
claim against the Company or any Group Company for pay in lieu of the then
unexpired fixed term or damages or otherwise by reason of such termination.
The Executive will only be entitled to the payment of any accrued salary
due
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at the date of termination. The provisions of this sub-clause 19.1 are
without prejudice to any rights which the Company may have at common law to
terminate the employment of the Executive summarily.
18.2 Subject to clause 10.2 above, the Board may terminate the Executive's
employment in the event of long term disability or death. For the avoidance
of doubt, the Company shall pay the Executive all accrued salary for the
month in which his duties were terminated and any pro-rated bonus for the
year up to the date of termination.
18.3 In the event of the Executive's employment being terminated by the Company
other than for the reasons set out in clause 18.1 above, or by notice set
out in clause 4.1 above, the Executive shall be entitled to the termination
package set out below at clause 18.4.3.
18.4 Change of Control
-------------------
18.4.1 For the purposes of this clause 18.4 the following definitions
shall apply:
18.4.1.1 "Change in Control" means the meaning ascribed to it in
section 840 of the Income and Corporation Taxes Xxx 0000;
and
18.4.1.2 "Good Reason" shall mean the occurrence of any of the
following events without the Executive's express written
consent:
18.4.1.2.1 the assignment to the Executive by the Company or
any Group of duties inconsistent with his position,
responsibilities and status with the Company immediately
prior to a Change in Control, or a change in his job titles
or offices held immediately prior to a Change in Control, or
the removal the Executive from or any failure to re-elect
him to any of such positions other than for the reasons set
out in clause 18.1 above;
18.4.1.2.2 a reduction by the Company of the Executive's
salary and benefits in effect immediately prior to the
Change on Control;
18.4.1.2.3 any material breach by the Company of any
provision of this Agreement; or
18.4.1.2.4 any failure by the Company to obtain the assign
this Agreement to any successor or assign of the Company.
18.4.2 If there is a Change of Control of the Company in contemplation
of or within 12 months after which:
18.4.2.1 the Executive is dismissed by the Company for any reason
other than the reasons set out at clause 18.1 above; or
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18.4.2.2 the Executive terminates his employment or gives notice
to terminate, for Good Reason (as defined above);
the Executive shall be entitled to the termination payment set
out below at 18.4.3 below.
18.4.3 The termination payment payable in the circumstances set out in
clauses 18.4.2 above shall be as follows:
18.4.3.1 A lump sum cash payment, to be payable within ten days of
the date of termination of employment (in accordance with
clause 18.4.2 above) in an a sum equivalent to 2 (two) times
the Executive's basic salary (at the rate applicable at the
date notice is given) and benefits (including within
limitation bonus, car provision or allowances, insurance
cover and pension contributions) specified in this Agreement
or otherwise, or a payment of the monetary value in lieu
thereof. Such payment shall be capped at 2.99 (two point
nine-nine) times his basic annual salary. [For the avoidance
of doubt this payment shall be made in addition to all
accrued salary and benefits ( including bonus) accrued to
the date of termination and any sums payable in lieu of the
unexpired Fixed Term or relevant notice under clause 4.2
above; and
18.4.3.2 The Company shall maintain all the various insurances
covers for a period of 36 months after the date the
termination of the Executive's employment or the date that
the Executive becomes an employee of another company
providing him with coverage substantially similar to that
provided to him by the Company immediately prior to the
termination of his employment. The payment of premiums by
the Company will not be altered in any way and all time
limits, effects of subsequent coverage and all other
relevant provisions of any such plan remain unchanged and
shall control Xxxxxxx'x entitlement to coverage or benefits
under such plan; and
18.4.3.3 Any warrants granted to the Executive which have not
vested will vest immediately upon the date of termination of
the Executive's employment.
18.5 Upon the termination howsoever arising of the Executives employment and/or
this Agreement, the Executive shall immediately tender his resignation from
all offices he holds in the Company and in any Group Company without
prejudice to any other rights accruing to either party hereto and without
claim for compensation. In the event of the Executive failing so to resign
as required herein, the Company is hereby irrevocably authorised to appoint
some person in his name and on his behalf to sign and deliver such
resignations.
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18.6 After the termination of the Executive's employment hereunder he shall not
at any time thereafter represent himself as being in any way connected with
or interested in the business of or employed by the Company or any Group
Company other than as a shareholder; or use for trade or other purposes the
name of the Company or any Group Company or any name capable of confusion
therewith other than as a shareholder.
18.7 The termination of the Executive's employment hereunder for whatever reason
shall not affect those terms of this Agreement which are expressed to have
effect thereafter and shall be without prejudice to any accrued rights or
remedies of the parties.
18.8 The Executive agrees that after termination, howsoever occurring, he will
not make or publish any adverse, derogatory, misleading or untrue comments
on the Company or any member of the Group, and members of their respective
Board of Directors or any of their employees and agrees that he will not
take part in any conduct conducive or potentially conducive to the bringing
of the Company or any member of the Group its directors and/or employees
into disrepute.
19 RETURN OF COMPANY PROPERTY
19.1 Upon the termination howsoever arising of the Executive's employment and/or
this Agreement, the Executive shall subject to clauses 9.3, 10.6.6, and
19.3 upon demand
19.1.1 deliver up to the Company all property in his possession or
under his control belonging to the Company or any Group Company
including but nor limited to all credit cards, keys and passes,
details of client records, Company manuals, records made by the
Executive in the course of his employment, address lists, address
books, diaries, disks, programmes and software, correspondence,
documents, books, papers, files, records, training records and
reports and other property or material belonging to or relating
to the business of the Company and any Group Company or their
suppliers or clients which may have come into his possession,
custody or control in the course of or in consequence of his
employment (and whether or not belonging to the Company or any
Group Company) and the Executive shall not be entitled to and
shall not retain any copies thereof in whatever form. For the
avoidance of doubt, this shall exclude the office equipment
provided and set out at clause 9.3 above.
19.1.2 irrevocably delete any information belonging to the Company or
any Group Company from any computer system in his possession or
under his control which computer system is not directly or
indirectly the property of the Company or any Group Company.
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20 GRIEVANCE AND DISCIPLINARY PROCEDURE
20.1 The Executive is subject to the Company's disciplinary rules and
disciplinary procedures in force from time to time. Such rules and
procedures shall not form part of the Executive's contract of employment.
20.2 The Company reserves the right to suspend the Executive for the purposes of
investigating any allegation of misconduct or breach of this Agreement. The
period of suspension shall not normally exceed one month. Whilst suspended
the Executive shall continue to be entitled to his salary and all other
contractual benefits. During any period of suspension pursuant to this
clause the Executive shall not, except with the prior written consent of
the Chairman of the Board attend any premises of the Company or any Group
Company, conduct any business on behalf of the Company or any Group Company
or contact any employee or customer of the Company or any Group Company.
20.3 If the Executive wishes to seek redress of any grievance relating to his
employment he should refer such grievance to the Board. Appeal against
warnings issued under the disciplinary or performance improvement
procedures should be notified to the Company Secretary, in writing, within
five working days of receipt of the warning setting out in full the grounds
of the Executive's appeal.
21 DATA PROTECTION
The Executive agrees to acquaint himself with and abide by the Company's
Data Protection Policy from time to time in force, breach of which will be
treated as a serious disciplinary matter which may result in his dismissal.
22 SHARE DEALINGS
22.1 The Executive shall comply, where relevant, with every rule of law, every
requirement of the London Stock Exchange, The American Stock Exchange and
every regulation of the Company from time to time in force in relation to
dealings in shares, debentures or other securities of the Company or any
Group Company and unpublished price sensitive information affecting the
shares, debentures or other securities of any other company and, in
relation to overseas dealings, the Executive shall also comply with all
laws of the state and all regulations of the stock exchange, market or
dealing system in which such dealings take place.
22.2 The Executive shall not (and shall procure so far as he is able that his
spouse and children shall not) deal or become or cease to be interested
(within the meaning of Part I of Schedule XIII to the Companies Act 1985)
in any securities of the Company except in accordance with any Company
rules or guidelines from time to time relating to securities transactions
by directors.
23 RECONSTRUCTION OR AMALGAMATION
If the employment of the Executive under this Agreement is terminated by
reason of the liquidation of the Company for the purpose of reconstruction
or
18
amalgamation and the Executive is offered reasonable alternative employment
with any concern or undertaking resulting from the reconstruction or
amalgamation on terms and conditions not less favourable than the terms of
this Agreement then the Executive shall have no claim against the Company
in respect of the termination of his employment under this Agreement.
24 GENERAL
24.1 No failure or delay by the Company in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise by the Company of any right, power or
privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
24.2 There are no collective agreements which directly affect the terms and
conditions of the Executive's employment.
25 NOTICES
25.1 Any notice or other communication given or made under this Agreement shall
be in writing and may be delivered to the relevant party or sent by first
class prepaid letter to the address of that party specified in this
Agreement or to that party's facsimile number thereat or at such other
address or facsimile number as may be notified by that party from time to
time for this purpose. Service at the last notified address or facsimile
number shall be effective for the purposes of this Agreement
notwithstanding the fact that either party may subsequently have changed
its address or facsimile number without having notified the other party
under the provisions of this clause.
25.2 Unless the contrary shall be proved each such notice or communication shall
be deemed to have been given or made and delivered, if by letter, 72 hours
after posting and, if by delivery or facsimile, when respectively delivered
or transmitted.
26 OTHER AGREEMENTS
This Agreement supersedes all other agreements other than those expressly
referred to in this Agreement whether written or oral between the Company
or any Group Company and the Executive relating to the employment of the
Executive and the Executive acknowledges and warrants to the Company that
he is not entering into this Agreement in reliance on any representation
not expressly set out herein.
27 GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with English law and the parties agree to submit to the
non-exclusive jurisdiction of the English courts as regards any claim or
matter arising in respect of this Agreement.
28 POWER OF ATTORNEY
The Executive hereby appoints the Company to act as his attorney with
authority in his name and on his behalf to execute any deed or instrument
and/or any such thing and generally to use his name for the purposes of
resigning as a director of the Company in and taking such steps as are
necessary to implement the Executive's obligation under clause 16.
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In witness whereof this Agreement has been duly executed by the parties as a
deed the day and year first above written.
Executed by as a deed ) /s/ X.X. Xxxxxxx
by the Company ) .......................
Director
.......................
Director/Secretary
Signed and delivered as a deed )
by the said LINDSAY XXXXXXXX XXXXX ) /s/ Lindsay Xxxxxxxx Xxxxx
in the presence of: )
Witness signature:
Witness name:
Witness address:
Witness occupation:
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