COMPROMISE AGREEMENT WITHOUT PREJUDICE AND SUBJECT TO CONTRACT
EXHIBIT
10.123
WITHOUT
PREJUDICE AND SUBJECT TO CONTRACT
THIS AGREEMENT is made on 25 March
2008
BETWEEN:-
|
(1)
|
Story Telecom, Inc., a
corporation registered in the State of Nevada, United States of America
with corporation no: C4689-2004 and whose registered office is at 0000
Xxxx Xxxxxxx Xxxx, Xxx Xxxxx, 00000-0000, XXX (the “Company”);
|
|
(2)
|
Story Telecom Limited, a
company registered in England and Wales with company no: 4551415 and whose
registered office is at Xxxxxxxxx Xxxxx, 000 Xxxx Xxxx, Xxxxxx X00 0XX, XX
(“Story”);
|
|
(3)
|
Xfone, Inc., a
corporation registered in the State of Nevada, United States of America
with corporation no: C23688-2000 and whose registered office is at 0000
Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 XXX (“Xfone”)
|
|
(4)
|
Trecastle Holdings Limited, a corporation
registered in the British Virgin Islands with company no: 305501 and whose
registered office is at 3152, Road Town, Tortola BV1 (“Trecastle”)
and
|
|
(5)
|
Xxx Xxxxxxx of Garden
Flat, 00 Xxxxx Xxxx Xxxx, Xxxxxx XX0 0XX (“Employee”)
|
WHEREAS:-
|
(A)
|
The
Employee is a legal and registered owner of stock in the Company (the
“Employee Stock
Holding”).
|
|
(B)
|
Trecastle
is a legal and registered owner of stock in the Company (the “Trecastle Stock
Holding”).
|
|
(C)
|
Pursuant
to a Stock Purchase Agreement dated 10 May 2006 (the “2006 SPA”); the
Employee had been employed to act as the Managing Director of Story until
his employment was terminated on 12 July 2007 (the “Termination
Date”). Prior to the Termination Date the Employee
had ceased actively to be engaged in the business with effect from 23 April 2007 (the
“Cessation
Date”).
|
|
(D)
|
The
Employee contends that his dismissal was unfair and in breach of
contract. Neither the Company nor Story accept that the
dismissal was either unfair or in breach of
contract.
|
-1-
|
(E)
|
The
Employee initiated claims against Story in the Employment Tribunal under
case number: 33001715/2007 (the “Tribunal
Claim”).
|
|
(F)
|
The
Employee and Trecastle have alleged that they have claims against Xfone
and others in relation to the Employee Stock Holding and the Trecastle
Stock Holding (collectively, the “Stock
Holding”).
|
|
(G)
|
The
Employee and Trecastle have further alleged that they have other potential
claims against the Company, Story, Xfone and Swiftnet Limited together
with their respective Associated Companies and all other companies in
which Xfone has or will have in the future, directly or
indirectly, a shareholding interest (together all of which are
collectively referred to as the “Xfone
Group”).
|
|
(H)
|
The
Xfone Group and the Employee wish to settle all claims which the Employee
has or may have against the Xfone Group and any of their respective
present or former directors, officers, shareholders, employees or workers
(excluding the Employee and Trecastle) arising out of the Employee’s
employment or its termination, the Employee’s status as a director of
any company in the Xfone Group, the Employee’s rights as a
shareholder, stockholder or option holder of any company in the Xfone
Group, whether arising from the Employee Stock Holding, the 2006 SPA or
otherwise and any other claims of whatsoever nature, howsoever and
wherever arising, which he may have, whether or not any such claims exist
or are known to or contemplated by the parties or are recognised by law at
the date of this Agreement.
|
|
(I)
|
The
Xfone Group acknowledge that it is not aware that it has any outstanding
claims against the Employee as at the date of this
Agreement.
|
|
(J)
|
Trecastle
and the Xfone Group also wish to settle any claims of whatsoever nature
and wherever arising which Trecastle may have against the Xfone Group and
any of their respective present or former directors, officers,
shareholders, employees or workers (excluding the Employee and Trecastle)
whether arising out of Trecastle’s rights as a stockholder of any company
in the Xfone Group (arising from the Trecastle Stock Holding, the 2006 SPA
or otherwise) or arising by reason of the 2006 SPA or otherwise, whether
or not such claims exist or are known to or contemplated by the parties or
are recognised by law at the date of this
Agreement.
|
|
(K)
|
In
addition to entering into this Agreement, the Employee and Trecastle have
agreed to sell the Stock Holding to Xfone. This Agreement is
conditional and shall only become fully effective
on:
|
|
a.
|
the
Employee and Trecastle entering into an agreement with Xfone to sell the
entire Stock Holding in accordance with the terms of an agreement in the
form set out in Schedule 2 to this Agreement (the “2008 SPA”)
and
|
|
b.
|
the
Employee withdrawing the Tribunal Claim against Story and agrees to its
dismissal by the Employment
Tribunal.
|
-2-
IT
IS AGREED AS FOLLOWS:
|
1.
|
2008
SPA
|
|
1.1
|
The
Employee and Trecastle hereby agree to enter into the 2008
SPA.
|
|
1.2
|
This
Agreement is conditional upon and shall not become effective unless and
until the Employee and Trecastle enter into the 2008 SPA. In
the event that the Employee or Trecastle fail to enter into the 2008 SPA
by 25 March 2008 the terms of this Agreement shall be null and void and as
if it had never been entered into.
|
|
2.
|
TERMINATION
PAYMENT
|
|
2.1
|
Provided
that the Employee has complied with the Employee's obligations under this
Agreement, within 5 working days of receipt by the Company/Company's
Solicitors of:
|
|
2.1.1
|
the
2008 SPA duly signed by the Employee and duly executed for and on behalf
of Trecastle;
|
|
2.1.2
|
the
signed Adviser's Certificate;
|
|
2.1.3
|
this
Agreement duly signed by the Employee and duly executed for and on behalf
of Trecastle;
|
|
2.1.4
|
a
letter to the Employment Tribunal sent in accordance with Clause 5
withdrawing his claim and consenting to the dismissal of the Tribunal
Claim; and
|
|
2.1.5
|
a
letter of resignation as a director in the form set out at Schedule 3 to
this Agreement;
|
Story
shall pay to the Employee the sum of £30,000 (the "Termination Payment") as
compensation for loss of employment which is made without admission of
liability. It is acknowledged by the Employee that save for any
entitlement he may have by reason of the 2008 SPA, that no other payments or
benefits of any kind are due from the Company, Story or any other company of the
Xfone Group except as provided for in this Agreement.
|
2.2
|
Subject
to Clause 2.1, the Company and Story understand that s401 and s403 Income
Tax (Earnings and Xxxxxxxx) Xxx 0000 apply to payment of the Termination
Payment, and on this basis no deductions will be made from the Termination
Payment for tax or employee national insurance contributions except to the
extent that the Termination Payment exceeds £30,000, where income tax will
be deducted at basic rate.
|
-3-
|
3.
|
TAX
INDEMNITY – TERMINATION PAYMENT
|
|
3.1
|
The
Company and Story make no warranty or representation as to whether income
tax or employee national insurance contributions are lawfully payable in
relation to the Termination
Payment.
|
|
3.2
|
The
Employee shall be responsible for and shall indemnify the Company and
Story against, and shall on written demand forthwith pay to the Company or
Story (or as they may direct), any further income tax or employee national
insurance contributions and interest, costs, penalties or expenses
relating to any tax assessment that the Company or Story is required to
pay or account for in respect of the payments made by the Company or Story
to the Employee pursuant to this Agreement, subject to the Company or
Story providing the Employee with copies of any such demand within 7 days
of the Company or Story receiving such demand, and subject to the Company
and/or Story providing such assistance as is reasonably required by the
Employee.
|
|
4.
|
TAX
INDEMNITY – EMPLOYMENT
|
|
4.1
|
Under
the terms of the 2006 SPA the Employee was entitled to payment of his
remuneration into such account as he
chose.
|
|
4.2
|
The
Employee hereby warrants that for the period up to the Termination Date
that the tax payable by him and by Trecastle arising from any remuneration
or other monies received from any company in the Xfone Group by him or by
Trecastle has been duly accounted for to the appropriate tax authorities
and that all tax due and payable has been duly paid to the proper tax
authorities entitled to raise a demand on either the Employee or Trecastle
in respect of such remuneration.
|
|
4.3
|
In
this clause 4 the following terms shall have the following
meanings:
|
|
4.3.1
|
Xfone Tax Payment shall
mean any payment made by any company in the Xfone Group which has already
been paid to the proper tax authorities in respect of either the Employee
or Trecastle or in respect of which the Employee has been notified in
writing by any such companies that tax has been deducted from payments
otherwise due to him;
|
|
4.3.2
|
Xfone Tax Payer shall
mean the company or companies in the Xfone Group which receive a demand
from any tax authority in the world, whether HM Revenue and Customs or any
other tax authority in respect of tax that is claimed to be payable
by or in respect of the Employee or Trecastle in excess of the
Xfone Tax Payment;
|
|
4.4
|
Subject
to the Company and/or Story providing such assistance as is reasonably
required by the Employee in respect of any demand, the Employee
shall, indemnify the Xfone Tax Payer(s) and the Xfone Group
against, and shall on written demand forthwith pay to the Xfone Tax
Payer(s) any further income or other tax or employee national insurance
contributions (or any equivalent or other taxes leviable in any
jurisdiction in the world arising from monies received by either the
Employee or Trecastle from any company in the Xfone Group, whether as an
employee or share or stockholder of any stock in any company in the Xfone
Group) together with any interest, costs, penalties or expenses relating
to any such tax assessment that the Xfone Tax Payer is required to pay or
account for in respect of any such payments and which is not an Xfone Tax
Payment.
|
-4-
|
5.
|
DISMISSAL
OF TRIBUNAL CLAIM
|
|
5.1
|
By
no later than 26 March 2008 (subject to signature of this Agreement by all
the parties), the Employee shall cause the Qualified Lawyer to write to
the Employment Tribunal in the form of a letter set out at Schedule 4 to
this Agreement in relation to the Tribunal Claim and notify the Employment
Tribunal that the dispute in relation to the Tribunal Claim has been
settled by way of a compromise agreement and that proceedings should be
treated as withdrawn by the Employee, the trial date for the Tribunal
Claim shall be vacated and all the Claimant’s claims set out in the
Tribunal Claim, shall be dismissed by the Employment Tribunal with
immediate effect.
|
|
5.2
|
The
Employee shall instruct the Qualified Lawyer to send a true copy of the
letter sent to the Employment Tribunal in accordance with clause 5.1
above, to the Company’s solicitor on the same date it is sent to the
Employment Tribunal.
|
|
6.
|
COVENANTS
AND WARRANTY
|
|
6.1
|
The
Employee hereby covenants for the benefit of the Xfone Group that he shall
not for any purpose and in connection with any business use the name
“Story Telecom”, “Story Telecom. Inc.”, “Story Telecom Limited”, “Xfone”,
“Swiftnet”, “Auracall” nor use the title “Managing Director or “Chief
Executive [Officer] of Story Telecom Limited” or any other name which is
similar to these names or which would otherwise suggest that he had a
continuing relationship with any company in the Xfone
Group.
|
|
6.2
|
The
Employee understands that the Xfone Group has agreed to enter into this
agreement on the basis of the warranties set out in this
Agreement. The Employee hereby warrants that he has at all
times acted properly and in accordance with the 2006 SPA, any implied
terms arising by reason of the Employee’s employment or any duties or
obligations on him as a director of any company in the Xfone Group and any
applicable laws to which he or any such relevant company may have been
subject.
|
|
7.
|
RESTRICTIONS
|
|
7.1
|
The
Employee agrees and confirms that he
has:
|
|
7.1.1
|
not
and shall not directly or indirectly disclose to any third party (other
than the Employee’s professional advisers and/or immediate family) the
terms of and the circumstances surrounding the conclusion of either this
Agreement or the 2008 SPA, save where such disclosure is required by any
competent authority or to comply with any statutory requirement or is
otherwise required for the purpose of enforcing any of the provisions of
this Agreement; and
|
|
7.1.2
|
has
not and shall not directly or indirectly make, publish or otherwise
communicate any disparaging or derogatory statements, whether in writing
or otherwise, which are intended to or which might be expected to damage
or lower the business or professional reputation or financial standing of
any company in the Xfone Group or any of their respective present or
former directors, officers, shareholders, agents, workers or employees
(other than the Employee).
|
|
7.2
|
On
behalf of the Xfone Group it is hereby
agreed:
|
|
7.2.1
|
That
the Xfone Group will make all reasonable endeavours to ensure that none of
its directors, officers, employees and/or agents, whether directly or
indirectly, shall disclose the terms of this Agreement except as may be
required by law or a regulatory
body.
|
|
7.2.2
|
That,
subject to any legal or regulatory obligations to which the Xfone Group is
subject (which will override this clause), it shall not directly or
indirectly make, publish or otherwise communicate any disparaging or
derogatory statements, whether in writing or otherwise, which are intended
to or which might be expected to damage or lower the reputation of the
Employee.
|
-5-
|
8.
|
AGREEMENT
|
|
8.1
|
Following
careful consideration of the facts and circumstances relating to the
Employee’s employment by Story in relation to his services as Managing
Director of Story and its termination and having regard to the sale by him
and Trecastle in accordance with the 2008 SPA of the Stock Holding, the
Employee agrees to settle and not to institute or continue any of the
following specific claims or proceedings against the Company, or any
company in the Xfone Group or any of its or their respective present or
former directors, officers, shareholders, employees or workers before an
employment tribunal, court or other judicial forum arising out of or
connected with the Employee's employment with Story and/or its
termination:-
|
|
8.1.1
|
any
claim arising out of a contravention or alleged contravention of
Part X of the Employment Rights Xxx 0000 (unfair
dismissal);
|
|
8.1.2
|
any
claim arising out of a contravention or alleged contravention of
section 135 of the Employment Rights Act 1996 (the right to a
statutory redundancy payment);
|
|
8.1.3
|
any
claim arising out of a contravention or an alleged contravention of a
provision contained in Part II of the Employment Rights Xxx 0000
(protection of wages);
|
|
8.1.4
|
any
claim arising out of a contravention or alleged contravention of
Part V (protection from suffering detriment in employment), of the
Employment Rights Xxx 0000. For the avoidance of doubt the
reference to Part V of the Employment Rights Xxx 0000 includes
any claim under sections 10 to 13 of the Employment Relations
Act 1999 (the right to be accompanied at disciplinary or grievance
hearings and related rights);
|
|
8.1.5
|
any
claim arising out of a contravention or alleged contravention of
section 92 (right to written statement of reasons for dismissal)
or section 8 (right to itemised pay statement) of the
Employment Rights Xxx 0000;
|
|
8.1.6
|
any
claim under Regulation 30 of the Working Time Regulations 1998
(for breach of the Working Time Regulations including, without limitation,
paid annual leave and payment in lieu of untaken leave on termination, the
entitlement to daily and weekly rest, rest breaks and compensatory
rest);
|
|
8.1.7
|
any
complaint under section 63 of the Sex Discrimination Xxx 0000
(discrimination on grounds of sex marital or civil partner status, gender
reassignment, discrimination by way of victimisation and
harassment);
|
|
8.1.8
|
any
complaint under section 2 of the Equal Pay Xxx 0000 (equal
pay);
|
|
8.1.9
|
any
complaint under section 54 of the Race Relations Xxx 0000
(racial discrimination, harassment and discrimination by way of
victimisation);
|
|
8.1.10
|
any
complaint under section 17A (discrimination or harassment on grounds
of disability), for victimisation under section 55 or any complaint under
section 25(8) (disability discrimination in the provision of employment
services such as vocational guidance or training) of the Disability
Discrimination Xxx 0000;
|
-6-
|
8.1.11
|
any
claim arising out of a contravention or alleged contravention of
Regulation 3 (less favourable treatment of fixed-term employees) or
Regulation 6(2) (right not to be subjected to detriment) of the Fixed-term
Employees (Prevention of Less Favourable Treatment) Regulations
2002;
|
|
8.1.12
|
any
application under Regulation 9 (declaration as to status as permanent
employee) of the Fixed-term Employees (Prevention of Less Favourable
Treatment) Regulations 2002;
|
|
8.1.13
|
any
claim under or arising out of a contravention or alleged contravention of
section 80(1) (parental leave) or sections 80G(1) or 80H(1)(b)
(flexible working) of the Employment Rights Xxx
0000;
|
|
8.1.14
|
any
claim arising out of a contravention or alleged contravention of
Regulation 5 (1) (less favourable treatment of part-time worker) or
Regulation 7(2) (right not to be subjected to detriment) of the
Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000;
|
|
8.1.15
|
any
claim under Regulation 28 of the Employment Equality (Sexual Orientation)
Regulations 2003 (discrimination or harassment on grounds of sexual
orientation and discrimination by way of
victimisation);
|
|
8.1.16
|
any
claim under Regulation 28 of the Employment Equality (Religion or Belief)
Regulations 2003 (discrimination or harassment on grounds of religion or
belief and discrimination by way of
victimisation);
|
|
8.1.17
|
any
claim for direct or indirect discrimination, harassment or victimisation
on the grounds of age pursuant to the Employment Equality (Age)
Regulations 2006;
|
|
8.1.18
|
any
claim under or by virtue of sections 11 (failure to allow access to
records), section 18, section 20(1)(a) (complaint following non-compliance
with enforcement notice) or section 24 (right not to be subjected to a
detriment) of the National Minimum Wage
Xxx 0000;
|
|
8.1.19
|
any
claim arising out of a contravention or alleged contravention of
paragraph 156 of Schedule A1 of the Trade Union and Labour
Relations (Consolidation) Xxx 0000 (right not to be subjected to
detriment on grounds connected with union recognition and collective
bargaining);
|
|
8.1.20
|
any
claim arising out of a contravention or alleged contravention of
section 190 of the Trade Union and Labour Relations (Consolidation)
Xxx 0000 (individual claim for payment following a protective award);
and
|
|
8.1.21
|
in
relation to protected disclosures, under the Employment Rights Xxx 0000
and the Public Xxxxxxxx Xxxxxxxxxx Xxx
0000;
|
|
8.1.22
|
for
breach of obligations under the Protection of Harassment Xxx
0000;
|
|
8.1.23
|
for
a failure to comply with obligations under the Occupational and Personal
Pension Schemes (Consultation by Employers and Miscellaneous Amendment)
Regulations 2006;
|
-7-
|
8.1.24
|
in
relation to the obligations to elect appropriate representatives or inform
and consult under the Trade Union and Labour Relations (Consolidation) Xxx
0000;
|
|
8.1.25
|
in
relation to the obligations to elect appropriate representatives or inform
and consult or any entitlement to compensation, under the Transfer of
Undertakings (Protection of Employment) Regulations 2006;
and
|
|
8.1.26
|
any
claim under any provision of directly applicable European
law;
|
|
8.2
|
The
Employee agrees that the terms of this Agreement are in full and final
settlement of:-
|
|
8.2.1
|
the
claims set out in Clause 8.1;
|
|
8.2.2
|
the
following additional claims (whether in the Employee’s capacity as an
employee, stock or shareholder, as an officer or in any other capacity)
against the Xfone Group or any their respective present or former
directors, officers, shareholders, employees or
workers;
|
|
(a)
|
wrongful
dismissal;
|
|
(b)
|
breach
of contract;
|
|
(c)
|
breach
of the 2006 SPA;
|
|
(d)
|
any
claims as a shareholder of the Company or of any other company of the
Xfone Group (save for any claim that the Employee may have in the future
against Xfone as the registered or beneficial owner of its shares of
common stock which are acquired by the Employee following the date of this
Agreement).
|
|
(e)
|
any
claims as a director or an officer of the Company, Story or of any other
company of the Xfone Group;
|
|
(f)
|
any
claims to dividends whether from the Company or any other company of the
Xfone Group (save for any claim that the Employee may have in the future
against Xfone as the registered or beneficial owner of its shares of
common stock which are acquired by the Employee following the date of this
Agreement and which give rise to a right to dividends to its registered or
beneficial owners in the event that Xfone decides, in its sole discretion,
to make a distribution of dividends to its
shareholders).
|
|
(g)
|
pension
claims;
|
|
(h)
|
personal
injury;
|
-8-
|
(i)
|
a
claim for a bonus; or
|
|
(j)
|
a
claim for compensation under section 13 of the Data Protection Xxx 0000;
and
|
|
8.2.3
|
any
other claims of whatsoever nature and howsoever arising, and whether in
the past or in the future in any jurisdiction including, for the avoidance
of doubt, within the United Kingdom, Northern Ireland, Ireland, the United
States of America, the British Virgin Islands, Israel and any other
jurisdiction in the world which the Employee may otherwise have had
against the Company or any of the other companies of the Xfone Group or
any of their respective present or former directors, officers,
shareholders, employees or workers arising out of or connected with the
Employee's employment by Story (or, where appropriate, by the Company)
and/or its termination and any other claims whether as director, or
option, stock or shareholder of any company of the Xfone Group,
and whether such claims arise at common law, under statute, European law,
the laws of the USA or otherwise and whether or not any such claims exist
or are known to or contemplated by the parties or are recognised by law at
the date of this Agreement.
|
|
8.3
|
Trecastle
agrees that the terms of this Agreement are in full and final settlement
of all and any claims which Trecastle might otherwise have had against any
company in the Xfone Group (or any of their respective present or former
directors, officers, shareholders, employees or workers) to the same
extent (save where inapplicable) as any claims the Employee may have had
against the Xfone Group, and that Clauses 8.1 and 8.2 are repeated here
mutatis mutandis save that any reference to the Employee, shall be
substituted by reference to Trecastle and Trecastle shall be treated as
settling all and any claims it might otherwise have
had.
|
|
8.4
|
Provided
there has been no breach of the warranties given in Clause 10below, the
Company and Story each acknowledge that on the basis of the facts and
circumstances of which each is aware immediately prior to entering into
this Agreement, none of the Company, Story or any other member of the
Xfone Group is intending to commence proceedings against the Employee and
in respect of such acts of the Employee of which either the Company or
Story is aware they each waive any right they respectively had to initiate
claims against the Employee in respect of such
acts.
|
|
9.
|
INDEPENDENT
LEGAL ADVICE
|
|
9.1
|
The
Employee warrants that, in accordance with the legislation governing
compromise agreements:
|
|
9.1.1
|
the
Employee has taken independent legal advice from the Qualified Lawyer as
to the terms and effect of this Agreement and in particular its effect on
the Employee's ability to pursue the Employee's rights before an
employment tribunal; and
|
|
9.1.2
|
the
Qualified Lawyer has advised the Employee that she is a Solicitor holding,
both at the date of this Agreement and at the date the said advice was
given, a current practising certificate and that there is currently in
force and was at the time the said advice was given a contract of
insurance covering the risk of a claim by the Employee in respect of loss
arising in consequence of the said
advice.
|
|
9.2
|
The
Employee shall procure that the Qualified Lawyer delivers the Adviser's
Certificate to the Company's
Solicitors.
|
-9-
|
10.
|
WARRANTIES
|
|
10.1
|
The
Employee further warrants that:
|
|
10.1.1
|
before
receiving the advice referred to in Clause 9.1.1,
the Employee disclosed to the Qualified Lawyer all facts or circumstances
relating to the Employee's employment by Story (and/or, where appropriate,
by the Company) and its termination that may give rise to a claim against
the Company, Story, any other company of the Xfone Group or any of its or
their respective present or former directors, officers, shareholders,
employees or workers;
|
|
10.1.2
|
the
Employee is not aware of any claims or circumstances which give rise to or
might give rise to any claims including any claim for personal injury
and/or industrial disease against the Company, Story, any other company of
the Xfone Group or any of its or their respective present or former
directors, officers, shareholders, employees or workers, other than those
specified in this Agreement which are the only claims the Employee may
otherwise have had;
|
|
10.1.3
|
the
Employee has not commenced any proceedings in any court, tribunal or
otherwise in any jurisdiction against any of the Xfone Group or any of
their respective present or former directors, officers, shareholder,
employees or workers in respect of any claim whatsoever (other than the
Tribunal Claim, which is hereby settled and to be withdrawn in accordance
with this Agreement) and undertakes not to commence any such proceedings;
and
|
|
10.1.4
|
the
Employee is not in breach of any duty the Employee may owe to any company
in the Xfone Group nor has the Employee acted in breach of and there are
no matters of which the Employee is aware relating to any acts or
omissions by the Employee or any third party which, if disclosed to any
company in the Xfone Group might affect its decision to enter into either
this Agreement or the 2008 SPA.
|
|
10.2
|
The
Employee acknowledges that the Company, Story and Xfone have entered into
this Agreement in specific reliance on the warranties in this
Agreement. Accordingly the Employee agrees that should the
Employee breach any of those warranties and without prejudice to any other
remedy any company of the Xfone Group might
have:
|
|
10.2.1
|
the
Employee will repay to Story the Termination Payment immediately on
written demand;
|
|
10.2.2
|
the
Company, Story, Xfone and the other companies of the Xfone Group shall
immediately be released from any continuing obligations under this
Agreement; and
|
|
10.2.3
|
Xfone
shall, at its option and under its sole discretion be entitled to rescind
the 2008 SPA and to seek repayment of all sums paid to the Employee and to
Trecastle under the 2008 SPA and the parties will be returned to the
position they would have been in had they not entered into the 2008
SPA.
|
-10-
|
11.
|
COMPLIANCE
WITH LEGISLATION
|
The
conditions regulating compromise agreements under the Employment Rights
Xxx 0000, the Working Time Regulations 1998, the Sex Discrimination
Xxx 0000, the Race Relations Xxx 0000, Schedule 3A of the Disability
Discrimination Xxx 0000, Schedule 4 of the Employment Equality (Sexual
Orientation) Regulations 2003, Schedule 4 of the Employment Equality (Religion
or Belief) Regulations 2003, the National Minimum Wage Xxx 0000, the Trade
Union and Labour Relations (Consolidation) Xxx 0000, the Transnational
Information and Consultation of Employees Regulations 1999 and the
Information and Consultation of Employees Regulations 2004 and Paragraph 13 of
the Schedule to the Occupational and Personal Pension Schemes (Consultation by
Employers and Miscellaneous Amendment) Regulations 2006 and the
Employment Equality (Age) Regulations are satisfied.
|
12.
|
THIRD
PARTY RIGHTS
|
|
12.1
|
Section 1
of the Contracts (Rights of Third Parties) Act 1999 ("CRiTPA") shall apply to
this Agreement but only to the extent that any Associated Company and/or
any present or former officers, shareholders, workers or employees of the
Company or any Associated Company (together the "Third Parties") shall be
entitled to enforce in their own right the terms relevant to them under
this Agreement.
|
|
12.2
|
In
accordance with section 2(3)(a) of CRiTPA, the whole or any part of
this Agreement may be rescinded or varied by agreement between the
Employee, Trecastle, Xfone, the Company and Story without the consent of
any of the Third Parties or of any other person who is not named as a
party to this Agreement.
|
|
13.
|
COUNTERPARTS
|
This
Agreement may be executed in any number of counterparts, each of which, when
executed and delivered, shall be an original, and all counterparts together
shall constitute one and the same instrument. Such counterparts may
be delivered by facsimile transmission or other electronic
transmission.
|
14.
|
LAW
AND JURISDICTION
|
|
14.1
|
This
Agreement shall be governed by and construed in accordance with English
Law.
|
|
14.2
|
The
parties submit to the exclusive jurisdiction of the English Courts and
tribunals with regard to any dispute or claim arising under this
Agreement.
|
|
15.
|
DEFINITIONS
|
"Adviser's Certificate" means a certificate in
the form attached to this Agreement at Schedule 1, signed by the Qualified
Lawyer advising the Employee;
"Agreement" means the agreement
between the parties contained herein;
"Associated Company” means any
undertaking which is a subsidiary, or parent or subsidiary undertaking (as those
expressions are used in Sections 1159 - 1162 of the Companies Xxx 0000 or, the
equivalent jurisdiction) of any company of the Xfone Group;
-11-
"Company's Solicitors" means Xxxxxx Xxxxxxx of
00 Xxxxxxxxx Xxxxxx, Xxxxxx X0X 0XX;
"Qualified Lawyer" means Xxxxxx Xxxxxxx of
Levenes of Ashley House, 000-000 Xxxx Xxxx, Xxxx Xxxxx, Xxxxxx X00
0XX.
|
16.
|
GENERAL
|
|
16.1
|
In
this Agreement:
|
|
16.1.1
|
a
reference to any legislative provision includes any lawful amendment or
re-enactment of it; and
|
|
16.1.2
|
the
headings are for convenience only and shall not affect its
interpretation.
|
|
16.2
|
The
Schedules to this Agreement form part of (and are incorporated into) this
Agreement.
|
|
16.3
|
Subject
to sub-clause 16.4, this Agreement together with the 2008 SPA sets out the
entire agreement between the parties and supersedes all previous
discussions, negotiations, agreements and arrangements (if any) whether
oral or in writing and whether express or implied relating to the
relationship, in any capacity, between the Employee, Trecastle and any
company, director, officer and employee in the Xfone Group. The
Employee and Trecastle acknowledge that they have no other rights against
any member of the Xfone Group other than as set out in this Agreement and
the 2008 SPA.
|
|
16.4
|
Any
section under the 2006 SPA that was not explicitly terminated by Section 5
of the 2008 SPA shall survive sub-clause 16.3
above.
|
|
16.5
|
In
the event of any conflict between this agreement and the 2008 SPA, the
terms of this Agreement shall
prevail.
|
|
16.6
|
This
Agreement, although marked "without prejudice" and "subject to contract"
will when dated and signed by the parties and accompanied by the Adviser's
Certificate become an open document evidencing an agreement binding on the
parties.
|
|
16.7
|
Nothing
in this Agreement shall be taken to prevent the Employee from making a
protected disclosure as defined by the Public Xxxxxxxx Xxxxxxxxxx Xxx
0000.
|
|
16.8
|
The
complete or partial invalidity or unenforceability of any provision of
this Agreement for any purpose shall in no way
affect:-
|
|
16.8.1
|
the
validity or enforceability of such provision for any other
purpose;
|
|
16.8.2
|
the
remainder of such provision; and/or
|
|
16.8.3
|
the
remaining provisions of this
Agreement.
|
-12-
Schedule
1
[To be
written on the Qualified Lawyer’s letterhead]
To: Story
and to the other companies of the Xfone Group
Dear
Sirs
Re: Xxx Xxxxxxx
I refer
to the terms of the Compromise Agreement of today's date between my client Xxx
Xxxxxxx ("my Client") and Story and others (collectively referred to as the
"Xfone Group"). I hereby certify that:
|
|
I
am a Solicitor, holding now and at all relevant times a current practising
certificate.
|
|
1.
|
Before
the said Compromise Agreement was signed I had advised my Client as to its
terms and effect and in particular its effect on my Client's ability to
pursue his rights before an employment
tribunal.
|
|
2.
|
At
the time I gave the advice there was in force a contract of insurance
covering the risk of a claim by my Client in respect of loss arising in
consequence of such advice.
|
|
3.
|
I
am a relevant independent adviser within the meaning of the legislation
governing compromise agreements. In particular, I am not acting
for or employed by Story, any associated employer or any person connected
with Story as those terms are defined by the governing
legislation.
|
Yours
faithfully
Signed…………………………………….
Xxxxxx
Xxxxxxx, Solicitor
Dated…………………………………….
-13-
|
|
Schedule
2
|
|
|
The
2008 SPA [to be annexed to this
agreement]
|
-14-
|
|
Schedule
3
|
|
|
Resignation
as a director
|
The
Directors of
Story
Telecom, Inc.
Story
Telecom Limited
[any
other companies of which Xxx Xxxxxxx is a director]
[Date]
Dear
Sirs
Story
Telecom, Inc. and Story Telecom Limited (together the “Story Telecom
Group”)
Yours
faithfully
Signed
and delivered as a deed by
XXX
XXXXXXX [SIGNATURE]
in the
presence of [NAME OF WITNESS]
-15-
|
|
Schedule
4
|
|
|
Withdrawal
of Claim
|
[On
Levenes letterhead]
Employment
Tribunal (Watford)
London
North West Region
Dear Sirs
Case
No: 3301715/2007
We write
to notify you that following the Claimant entering into an agreement with the
Respondent, the Claimant now applies to the Employment Tribunal for all the
claims against Story Telecom Limited as set out in Case No: 3301715/2007 (the
“Case”) to be withdrawn for all purposes and for the hearing set to commence on
7 July 2008 be vacated for all purposes.
We
understand that the Respondent will shortly be applying to the tribunal for an
order that the Case to be dismissed for all purposes. We also
wish to notify you on behalf of the Claimant that the Claimant hereby consents
to the dismissal of the all claims set out in the Case for all
purposes.
We hereby
confirm that we do not seek and shall not in the future seek to make any
application for costs in relation to the Case.
We have
today sent a copy of this letter to the Respondent’s solicitors.
Yours
faithfully
Levenes
Signed
for and on behalf and
As the
duly authorised representative of
The
Claimant Xxx Xxxxxxx
Signed by
or on behalf of the parties on the date which first appears in this
Agreement
-16-
/s/ Xxxx
Xxxxxx
Signed by
Xxxx Xxxxxx
duly
authorised for and on behalf of STORY TELECOM,
INC.
/s/ Xxxx
Xxxxxx
Signed by
Xxxx Xxxxxx
duly
authorised for and on behalf of the STORY TELECOM
LIMITED
/s/ Xxx
Xxxxxxxxx
Signed by
Xxx Xxxxxxxxx
duly
authorised for and on behalf of the XFONE, INC.
/s/ Xxx
Xxxxxxx
Signed by
Xxx
Xxxxxxx ]
duly
authorised for and on behalf of TRECASTLE HOLDINGS
LIMITED
/s/ Xxx
Xxxxxxx
SIGNED by XXX
XXXXXXX
-17-
