THIS AGREEMENT is made the 27th day of November, 2003
BETWEEN:
(1) NARROWSTEP LIMITED (registered number 4412126, whose registered office
is at 0 Xxxxxxxxxx Xxxx Xx, Xxxxxx X0 (xxx "Company");
AND
(2) XXXXXXXX XXXX of 00 Xxxxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxx, XX00 0XX (the
"Employee").
THE PARTIES AGREE as follows:
1 (A) Definitions
In this Agreement unless the context otherwise requires the following
expressions have the following meanings:
WORDS AND EXPRESSIONS MEANING
"the Board" the Board of the Company for the time being, or
any Executive of the Company for the time being;
"Confidential Information" information relating to the business, products,
affairs and finances of the Company or of any,
Group Company for the time being confidential to
it or to them or treated by it or them as such
and trade secrets (including, without
limitation, technical data and know-how)
relating to the business of the Company or of
any Group Company or of any of its or their
suppliers, clients or customers;
the "Employment" the Employee's employment with the Company;
the "ERA" the Employment Rights Xxx 0000 as amended;
the "Group" the Company and the Group Companies;
"Group Company" any company which is for the time being a
subsidiary or holding company of the Company and
any subsidiary of any such holding company and
for the purposes of this Agreement the terms
"subsidiary" and "holding company" shall have
the meanings ascribed to them by sections 736
and 736A Companies Xxx 0000;
"Permitted Activities" those activities in which the Employee is
permitted to be engaged in addition to his
activities as a director and employee of the
Company, as set out in Schedule 2;
the "Salary" the salary referred to in clause 6(A).
(B) References to clauses and schedules are unless otherwise stated to
clauses of and schedules to this Agreement.
(C) The headings to the clauses are for convenience only and shall not
affect the construction or interpretation of this Agreement.
2. APPOINTMENT
(A) With effect from (date) the Company appoints the Employee and the
Employee agrees to act in the capacity set out in Schedule 1 or in such
other capacity as the Company from time to time reasonably directs on
the terms of this Agreement.
(B) The Company may appoint any other person or persons to act jointly with
the Employee in any position to which he may be assigned from time to
time.
3. DURATION OF THE EMPLOYMENT
(A) The Employment under this Agreement shall commence on and, subject to
the provisions of this Agreement, shall continue for a fixed period of
12 months and thereafter unless and until terminated by either party
giving to the other not less than 3 months' notice in writing to expire
on or at any time after the expiry of that fixed period.
(B) Notwithstanding clause-3(A), the Employment shall terminate
automatically without the need for notice when the Employee reaches 60
years of age.
(C) The Company reserves the right to terminate the Employment without any
notice or on notice less than that required by clause 3(A) provided that
if it does so it will pay to the Employee a sum equal to, but no more
than, the Salary in respect of that part of the period of notice in
clause 3(A) which the Company has not given to the Employee less any
appropriate tax and other statutory deductions and any other deduction
considered by the Company to be appropriate and reasonable to take
account of accelerated receipt and the Employee's duty to mitigate his
loss.
(D) At any time during any period of notice (whether given by the Company or
the Employee), the Company shall be under no obligation to assign any
duties to the Employee and shall be entitled to exclude him from its
premises and/or the Company may require the Employee to carry out
specified projects, provided that this shall not affect the Employee's
entitlement to receive the Salary and other contractual benefits.
(E) For the purposes of the ERA the Employee's period of continuous
employment with the Company began on (date) The Employee's employment
with the Company and is not continuous with any previous employment with
any previous employer.
(F) The Employee represents and warrants that he is not bound by or subject
to any court order, agreement, arrangement or undertaking which in any
way restricts or prohibits him from entering into this Agreement or from
performing his duties under it.
4. SCOPE OF THE EMPLOYMENT
(A) During the Employment the Employee shall:
(i) devote the whole of his time, attention and skill to the
business and affairs of the Company both -during normal business
hours (as set out in Schedule 1) and during such additional
hours as are necessary for the proper performance of his duties
or as the Board may reasonably require from time to time subject
to the Employee's ability to carry out Permitted Activities to
the extent set out in Schedule 2;
(ii) faithfully and diligently perform such duties and exercise such
powers consistent with his position as may from time to time be
assigned to or vested in him by the Board to a standard that is
acceptable to the Board;
(iii) obey the reasonable and lawful directions of the Board;
(iv) comply with all the Company's rules, regulations, policies and
procedures from time to time in force; and
(B) The Employee agrees, for the purposes of Regulation 5 of The Working
Time Regulations 1998 (the 'Regulations'), that Regulation 4 of the
Regulations does not apply to him. The Company and the Employee agree
that the Employee's consent, for the purpose of this clause 4 (B), shall
continue indefinitely provided that the Employee may withdraw such
consent at any time by giving the Company three months' notice of his
wish to do so.
(C) The Employee acknowledges the obligations on the Company to maintain up
to date records and accordingly undertakes to provide the Company with
such records as are necessary to enable the Company to comply with the
Regulations.
5. PLACE OF WORK
(A) The Employee's place of work will initially be the Company's offices at
00 Xxx Xxxxxxxxx Xx, Xxxxxx X0, but the Company may require the Employee
to work at any place (whether inside or outside the United Kingdom) for
such periods as the Company may from time to time require, including
home working.
(B) The Company shall have the right to require the Employee to move house
to an appropriate location for the better performance of his duties. The
Employee will be given reasonable notice of any such requirements and
the Company will reimburse to him all expenses incurred by him in such a
move as it may consider reasonable in all the circumstances.
6. REMUNERATION
(A) The Company shall pay to the Employee a salary at the rate set out in
Schedule 1, on the last day of each calendar month by equal monthly
instalments in arrears (or such other sum as may from time to time be
agreed). The rate of salary will be reviewed annually or more regularly
at the Company's discretion.
(B) For the purposes of the Employment Rights Xxx 0000 and otherwise the
Employee consents to the deduction of any sums owing by him to the
Company at any time from his salary or any other payment due from the
Company to him. The Employee also agrees to make any payment to the
Company of any sums owed by him to the Company upon demand by the
Company at any time.
7. EXPENSES
(A) The Company shall reimburse the Employee in respect of all expenses
reasonably incurred by him in the proper performance of his duties,
subject to his providing such receipts or other appropriate evidence as
the Company may require.
8. HOLIDAYS
(A) The Employee shall be entitled, in addition to all Bank and Public
holidays normally observed in England, to the number of working days
paid holiday as set out in Schedule 1 in each holiday year (being the
period from 1 January to 31 December). The Employee may take his holiday
only at such times as are agreed with the Board.
(B) In the respective holiday years in which the Employment commences or
terminates, the Employee's entitlement to holiday shall accrue on a pro
rata basis for each completed calendar month of service during the
relevant year.
(C) If, on the termination of the Employment, the Employee has exceeded his
accrued holiday entitlement, the value of such excess, calculated by
reference to clause 8(B) and the Salary, may be deducted from ally sums
due to him and if there are no such sums due, the Employee shall repay
such excess to the Company on such termination. If the Employee has any
unused holiday entitlement, the Company may either require the Employee
to take such unused holiday during any notice period or make a payment
to him in lieu of it, calculated as above.
(D) Holiday entitlement for one holiday year cannot be taken in subsequent
holiday years unless otherwise agreed by the Board. Failure to take
holiday entitlement in the appropriate holiday year will lead to
forfeiture of any accrued holiday not taken without any right to payment
in lieu of it.
(E) The Employee may take unpaid leave at the Board's discretion.
(F) The Employee will be entitled to compassionate leave at the Board's
discretion.
9. SICKNESS BENEFITS
(A) Subject to clause 14 the Company shall continue to pay the Employee's
salary for up to a maximum of the number of working days' absence as set
out in Schedule 1 on medical grounds in any period of 3 calendar months
provided that the Employee shall from time to time if required:
(i) supply the Company with medical certificates covering any period
of sickness or incapacity exceeding seven days (including
weekends); and
(ii) undergo at the Company's expense, by a doctor appointed by the
Company, any medical examination.
(B) Payment in respect of any other or further period of absence shall be at
the Company's discretion.
(C) Any payment to the Employee pursuant to clause 9(A) shall be subject to
set off by the Company in respect of any Statutory Sick Pay and any
Social Security Sickness Benefit or other benefits to which the Employee
may be entitled.
(D) If the Employee's absence shall be occasioned by the actionable
negligence of a third party in respect of which damages are recoverable,
then the Employee shall:
(i) notify the Company immediately of all the relevant circumstances
and of any claim compromise, settlement or judgement made or
awarded in connection with it;
(ii) give to the Company such information concerning the above
matters as the Company may reasonably require; and
(iii) if the Company so requires, refund to the Company any amount
received by him from any such third party provided that the
refund shall be no more than the amount which he has recovered
in respect of remuneration.
10. PENSION AND DEATH BENEFIT
(A) No provision of retirement or death in service benefits will be made by
the Company for the Employee, There is therefore no contracting-out
certificate in force under the Xxxxxxx Xxxxxxx Xxx 0000 in respect of
the Employment.
11. RESTRICTIONS DURING THE EMPLOYMENT
(A) During the Employment the Employee shall not directly or indirectly:
(i) be employed, engaged, concerned or interested in any other
business or undertaking or
(ii) engage in any activity which the Board reasonably considers may
be, or become, harmful to the interests of the Company or of any
Group Company or which might reasonably be considered to
interfere with the performance of the Employee's duties under
this Agreement,
(B) Clause 11(A) shall not apply to the engagement of the Employee in any
Permitted Activity.
(C) The Employee shall comply with every rule of law and every regulation of
the Company for the time being in force in relation to dealings in
shares or other securities of the Company or any Group Company as shall
be communicated to the Employee from time to time.
12. CONFIDENTIAL INFORMATION AND COMPANY DOCUMENTS
(A) The Employee shall neither during the Employment (except in the proper
performance of his duties) nor at any time (without limit) after the
termination of the Employment except in compliance with an order of a
competent court:
(i) divulge or communicate to any person, company, business entity
or other organisation any Confidential Information;
(ii) use any Confidential Information for his own purposes or for any
purposes other than those of the Company or any Group Company;
or
(iii) through any failure to exercise due care and diligence, permit
or cause any unauthorised disclosure of any Confidential
Information.
These restrictions shall cease to apply to any information which shall
become available to the public generally otherwise than through any
breach by the Employee of the provisions of this Agreement or other
default of the Employee.
(B) The Employee acknowledges that all books, notes, memoranda, records,
lists of customers and suppliers and employees, correspondence,
documents, computer and other discs and tapes, data listings, codes,
designs and drawings and other documents and material whatsoever
(whether made or created by the Employee or otherwise) relating to the
business of the Company or any Group Company (and any copies of the
same):
(i) shall be and remain the property of the Company or the relevant
Group Company; and
(ii) shall be handed over by the Employee to the Company or to the
relevant Group Company on demand and in any event on the
termination of the Employment and the Employee shall certify
that all such property has been handed over on request by the
Board and agrees that he will take all reasonable steps to
prevent the disclosure of the same.
13. INVENTIONS AND OTHER INTELLECTUAL PROPERTY
(A) The parties foresee that the Employee may make inventions or create
other intellectual property in the course of his duties and agree that
in this respect the Employee has a special responsibility to further the
interests of the Company and the Group Companies.
(B) Any invention, improvement, design, process, information, copyright
work, trade xxxx or trade name or get-up made, created or discovered by
the Employee in the course of the Employment (whether capable of being
patented or registered or not and whether or not made or discovered in
the course of the Employment) in conjunction with or in any way
affecting or relating to the business of the Company or of any Group
Company or capable of being used or adapted for use in or in connection
with such business ("Intellectual Property Rights") shall -be disclosed
immediately to the Company and shall (subject to Sections 39 to 43
Patents Act 1977) belong to and be the absolute property of the Company
or such Group Company as the Company may direct.
(C) If and whenever required so to do by the Company the Employee shall at
the expense of the Company or such Group Company as the Company may
direct:
(i) apply or join with the Company or such Group Company in applying
for letters patent or other protection or registration for an
other Intellectual Property Rights in the United Kingdom and in
any other part of the world; and
(ii) execute all instruments and do all things necessary for vesting
all such right, title and interest in such letters patent or
other Intellectual Property Rights in the Company or such Group
Company or such other person as the Company may specify
absolutely as sole beneficial owner.
(D) The Employee irrevocably and unconditionally waives all rights under
Chapter IV of Part 1 of the Copyright , Designs and Patents Xxx 0000 in
connection with his authorship Copyright of any existing or future
copyright work in the course of the Employment, in whatever part of the
world such rights may be enforceable including, without limitation:
(i) the right conferred by section 77 of that Act to be identified
as the author of any such work., and
(ii) the right conferred by section 80 of that Act not to have any
such work subjected to derogatory treatment.
(E) The Employee irrevocably appoints the Company to be his Attorney in his
name and on his behalf to execute any such instrument or do any such
thing and generally to use his name for the purpose of giving to the
Company the full benefits of this clause 13. A certificate in writing in
favour of any third party signed by any director or by the Secretary of
the Company that any, instrument or act falls within the authority
conferred by this Agreement shall be conclusive evidence that such is
the case.
(F) Nothing in this clause 13 shall be construed as restricting the rights
of the Employee or the Company under sections 39 to 43 Patents Xxx 0000.
14. TERMINATION
(A) Notwithstanding any other provisions of this Agreement in any of the
following circumstances the Company may terminate the Employment
immediately by serving written notice on the Employee to that effect, In
such event the Employee shall not be entitled to any further payment
from the Company except such sums as shall have accrued due at that
time. The circumstances are if the Employee:
(i) commits any serious breach of this Agreement or is guilty of any
gross misconduct or any wilful neglect in the discharge of his
duties;
(ii) repeats or continues (after warning) any breach of this
Agreement;
(iii) is guilty of any fraud, dishonesty or any conduct tending, to
bring himself, the Company, or any Group Company into disrepute;
(iv) shall commit any act of bankruptcy or shall take advantage of
any statute for the time being in force offering relief for
insolvent debtors;
(v) is convicted of any criminal offence (other than minor offences
under the Road Traffic Acts or the Road Safety Acts for which a
fine or non-custodial penalty is imposed) which might reasonably
be thought to affect adversely the performance of his duties;
(vi) refuses (without reasonable cause) to accept the novation by the
Company of this Agreement, or an offer of employment on terms no
less favourable to him than the terms of this Agreement, by any
company which, as a result of a reorganisation, amalgamation or
reconstruction of the Company, acquires or agrees to acquire not
less than 90 per cent of the issued equity share capital of the
Company (as defined by section 744 of the Companies Act 1985);
or
(vii) resigns as or otherwise ceases to be or becomes prohibited by
law from being a director of the Company, otherwise than at the
Company's request.
Any delay by the Company in exercising such right of termination shall
not constitute a waiver of it.
(B) If at any time the Employee is unable to perform his duties properly
because of ill health, accident or otherwise for a period or periods
totalling at least 90 working days in any period of 12 calendar months,
or becomes incapable by reason of mental disorder of managing and
administering his property and affairs, then the Company may terminate
the Employment by giving him not less than 1 months' written notice to
that effect provided that if at any time during the currency of such a
notice the Employee shall provide a medical certificate satisfactory to
the Board to the effect that he has fully recovered his physical and/or
mental health and that no recurrence of illness or incapacity can
reasonably be anticipated, the Company shall withdraw the notice unless,
by that date, a replacement for the Employee has been appointed.
(C) If the Company believes that it may be entitled to terminate the
Employment pursuant to clause 14(A) it shall be entitled (but without
prejudice to its right subsequently to terminate the Employment on the
same or any other ground) to suspend the Employee on full pay and other
benefits for so long as it may think fit.
(D) On the termination of the Employment or upon either the Company or the
Employee having served notice of such termination, the Employee shall:
(i) immediately deliver to the Company all materials, keys, credit
cards, motor-cars, and other property of or relating to the
business of the Company or of any Group Company which may be in
his possession or under his power or control;(ii) and the
Employee irrevocably authorises the Company to appoint any
person in his name and on his behalf to sign any documents and
do any things necessary or requisite to give effect to his
obligations under this clause 14(D).
(E) With a view to ensuring that his departure can be arranged with the
minimum of inconvenience or disruption to the business of the Group and
its relationship with third parties and its other employees, the
Employee undertakes not, without the prior approval of the Board as to
the timing and manner of any communication about his departure, to
inform any of his colleagues about the proposed cessation of his
employment hereunder.
(F) The Employee acknowledges the right of the Company to monitor and
control the performance of its employees and acknowledges the fiduciary
obligations attaching to his position including obligations to inform
the Board forthwith upon his becoming aware that any of his colleagues
engaged in the business of any Group Company of which he is a director
is intending or contemplating the termination of his contract of
employment with the Company of any other company in the Group.
15. RESTRICTIVE COVENANTS
(A) The Employee will not without the written consent of the Board for a
period of 12 months (less any period during which the Employee has not
been provided with work pursuant to clause 3(D)) after the termination
of the Employment whether as principal or agent, and whether alone or
jointly with, or as a director, manager, partner, shareholder, employee
or consultant of any other person, directly or indirectly:
(i) interfere with, tender for, canvass, solicit or endeavour to
entice away from the Company or from any Group Company the
business of any person who at the date of termination of the
Employment or during the period of 1 year prior to that date (or
if earlier, prior to the date on which the Employee last carried
out duties assigned to him by the Company) was, to his
knowledge, a customer, client or agent of or supplier to or who
had dealings with the Company or with any Group Company and with
whom he had personal dealings in the normal course of his
employment at that date or during that
period. This restriction will be limited to activities by the
Employee which will involve offering or providing services
similar to those which he will have provided during the
Employment;
(ii) supply any product, carry out or undertake or provide any
service similar to those with which he was concerned to a
material extent during the period of 6 months prior to the
termination of the Employment to or for any person who, at the
date of termination of the Employment or during the period of 1
year prior to that date was a customer, client or agent of or
supplier to or was in the habit of dealing with the Company or
with any Group Company and with whom the Employee had personal
dealings in the normal course of his employment during that
period of 1 year;
(iii) be employed by, or enter into partnership with, employ or
attempt to employ or negotiate or arrange the employment or
engagement by any other person, of any person who to his
knowledge was, at the date of the termination of the Employment,
or within 1 year prior to that date had been, an employee of the
Company or any Group Company and with whom he had personal
dealings during that period;
(iv) solicit, interfere with, tender for or endeavour to entice away
from the Company or from any Group Company any contract, project
or business, or the renewal of any of them, carried on by the
Company or by any Group Company which is currently in progress
at the date of the termination of the Employment or which was in
the process of negotiation at that date and in respect of which
the Employee had contact with any customer, client or agent of
or supplier to the Company or any Group Company at any time
during the period of 1 year prior to the date of termination of
the Employment.
(B) None of the restrictions contained in clause 15(A) shall prohibit any
activities by the Employee which are not in direct or indirect
competition with any business being carried on by the Company or by any
Group Company at the date of the termination of the Employment.
(C) At no time after the termination of the Employment shall the Employee
directly or indirectly represent himself as being interested in or
employed by or in any way connected with the Company or any Group
Company, other than as a former employee of the Company
(D) The Employee agrees that, having regard to all the circumstances, the
restrictions contained in this clause are reasonable and necessary for
the protection of the Company and the Group Companies and that they do
not bear harshly upon him and the parties agree that:
(i) each restriction shall be read and construed independently of
the other restrictions so that if one or more are found to be
void or unenforceable as an unreasonable restraint of trade or
for any other reason the remaining restrictions shall not be
affected; and
(ii) if any restriction is found to be void but would be valid and
enforceable if some part of it were deleted, that restriction
shall apply with such deletion as may be necessary to make it
valid and enforceable.
16. DISCIPLINARY AND GRIEVANCE PROCEDURES
(A) If the Employee wishes to obtain redress of any grievance relating to
the Employment or is dissatisfied with any reprimand, suspension or
other disciplinary step taken by the Company, he may address this to the
Chairman of the Company according to the Company's published
Disciplinary and Grievance Procedures.
17. NOTICES
A notice may be given by any party hereto to any other party hereto either
personally or by sending it by prepaid first class post or airmail to his
address stated in this Agreement or to any other address supplied by him to the
other par-ties hereto for the giving of notice to him. A properly addressed and
prepaid notice sent by post shall be deemed to have been served at an address
within the United Kingdom at the expiry of 72 hours after the notice is posted
and to have been served at an address outside the United Kingdom at the expiry
of 96 hours after the notice is posted.
18. FORMER CONTRACTS OF EMPLOYMENT
This Agreement shall be in substitution for any previous. contracts, whether by
way of letters of appointment, agreements or arrangements, whether written, oral
or implied, relating to the employment of the Employee (including all bonus and
option arrangements), which shall be deemed to have been terminated by mutual
consent as from the date of this Agreement and the Employee acknowledges to the
Company for itself and on behalf of each Group Company that he has no
outstanding claims of any kind against the Company or any Group Company in
respect of any such contract.
19. CHOICE, OF LAW AND SUBMISSION TO JURISDICTION
(A) This Agreement shall be governed by and interpreted in accordance with
English law.
(B) The parties submit to the exclusive jurisdiction of the English courts
but this Agreement may be enforced by the Company in any court of
competent jurisdiction.
20. GENERAL
(A) This Agreement constitutes the written statement of the terms of
employment of the Employee provided in compliance with Part 1 of the
ERA.
(B) Save as otherwise herein provided there are no terms or conditions of
employment relating to hours of work or to normal working hours or to
entitlement to holiday (including public holidays) or holiday pay or to
incapacity for work due to sickness or injury or to pensions or pension
schemes or to requirements to work abroad and no collective agreement
has any effect upon the Employee's Employment under this Agreement.
SCHEDULE1
THE EMPLOYEE
Job title Director of Content & Distribution
Notice period 6 months
Remuneration (pound)75,000
Holidays 20 days, plus 1 day for every year served to a maximum of 28 days
Sickness benefit 90 days
Hours of work 9.00am to 6.00pm, (with an hour break for lunch) Monday to Friday inclusive
Additional
Subject to approval, you will be granted the following share options at 30c:
50,000 upon the company achieving quarterly profitability post-merger
100,000 upon the company achieving audited annual profitability
100,000 upon the company achieving subsequent annual profits growth of at least
10%
SCHEDULE 2
PERMITTED ACTIVITIES
1. The Employee is permitted to be engaged, concerned or interested in or
to hold office in any business or undertaking provided that:
(a) the business or undertaking in question does not compete with the
business of the Company or any Group Company;
(b) the Employee's engagement, concern or interest in the business or
undertaking in question does not require him to devote time and attention to it
such as to prevent the Employee from properly fulfilling his duties to the
Company or any Group Company, and in particular the Employee's duties under
clause 4 (A) of this Agreement; and
(c) the Employee notifies the Company in writing before or as soon as
practicable after his engagement, concern or interest arises begins.
EXECUTED as a DEED for
and on behalf of THE COMPANY by:
Director:
/s/ Xxxxx Xxxxx
Secretary:
Signed by the said Xxxxxxxx Xxxx:
/s/ Xxxxxxxx Xxxx
in the presence of:
