EXHIBIT 4.23
WITHOUT PREJUDICE
STRICTLY PRIVATE AND CONFIDENTIAL
World Gaming Plc Xxxxx Xxxxxx
00 Xxxxxx Xxxxxx 3 Hatch End
Reading Windmill Fields
RG1 7SR Xxxxxxxxxx
Xxxxxxx Xxxxxx, XX00 0XX
Xxxxxxx
2003
Dear Sirs,
COMPROMISE AGREEMENT
1. I refer to my employment with you, World Gaming Plc ("the Company"),
which terminated on 13th January 2003 ("the Termination Date").
2. I agree to accept from you a Settlement Payment in the sum of
(pound)25,000 without deduction of tax or National Insurance ("the
Settlement Payment") which shall be paid in five equal monthly
installments over a five month period commencing on the tenth (10th)
day after you receive a copy of this Agreement signed by me.
3. The Settlement Payment shall be accepted by me:
3.1 in full and final settlement and release of all and any claims which I
may have against the Company or any Associated Company or its or their
directors, officers, agents or employees or any directors, officers,
agents or employees of any Associated Company arising out of my
employment or its termination, whether contractual or statutory,
(including any contractual or other claims arising from an Employment
Agreement between me and the Company dated 20th November 2002 ("the
Employment Agreement")) or any other claim whatsoever I have or may
have against the Company or any Associated Company now or in the future
whether known or unknown in relation to any breach of duty owed to me
at common law or under statute whether under the laws of England and
Wales, those of the European Union, Antigua, Canada or any other law or
in respect of any bonus or share scheme other than:
(a) those complaints set out in paragraphs 3.2 or 4 below or
Schedule 1;
(b) any claim for personal injury of which I do not have knowledge
at the date hereof. I confirm that I am currently unaware of
any such claim;
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(c) any entitlement to pension contributions and share options (as
more particularly referred to in clause 13 of this Agreement)
otherwise due to me under the terms of the Employment
Agreement. It is acknowledged that no part of this Agreement
shall constitute a waiver of the pensions contributions due to
me from the Company under the terms of the Employment
Agreement.
3.2 in full and final settlement of and on the basis that I shall refrain
from instituting (and shall immediately discontinue / withdraw the
proceedings already commenced) the proceedings which I may be entitled
to bring against the Company or any Associated Company (or in respect
of paragraph 3.2(d), 3.2(e) and 3.2(g)) against the Company's
directors, officers, agents or employees or any directors, officers,
agents or employees of any Associated Company (and therefore could
bring proceedings) before an Employment Tribunal in respect of:
(a) any complaint for unfair dismissal under the Employment Rights
Xxx 0000; and/or
(b) any complaint for unpaid wages, and any deductions from wages
under S.13-14 of the Employment Rights Xxx 0000; and/or
(c) any entitlement to a claim for a redundancy payment under the
Employment Rights Xxx 0000; and/or
(d) any complaint concerning discrimination under the Sex
Discrimination Xxx 0000 and/or Equal Treatment Directive;
and/or
(e) any complaint concerning discrimination under the Race
Relations Xxx 0000; and/or
(f) any claim under the Equal Pay Xxx 0000 as amended, the Equal
Pay Directive and/or Article 119 or the Treaty of Rome; and/or
(g) any complaint concerning discrimination under the Disability
Discrimination Xxx 0000; and/or
(h) any complaint under the Working Time Regulations 1998; and/or
(i) any complaint under Part V of the Employment Rights Xxx 0000
including any complaint regarding the protection from
suffering a detriment in employment in relation to health and
safety, Sunday working for shop and betting workers, working
time, trustees of occupational pension schemes, employee
representatives, the right to time off work for study or
training, protected disclosures, or leave for family and
domestic reasons.
4. I agree and warrant to the Company that the claims and prospective
claims listed above and in Schedule 1 are all of the claims and
prospective claims that I believe I have against the Company or any
Associated Company or their directors, officers, agents and employees
arising out of or in connection with my employment or its termination.
I confirm that I am giving this warranty having taken legal advice on
the effect that signing this agreement will have on my ability to
pursue any rights I may have before an Employment Tribunal. The Company
enters into this Agreement in reliance upon the warranties given by me
above. In the event that I bring
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proceedings under the provisions listed in paragraph 3.2 or Schedule 1
relating to my employment or its termination or do not discontinue or
withdraw any such proceedings already commenced against the Company or
any Associated Company or their directors, officers, agents and
employees, I agree that I will repay one half of the Settlement Payment
to the Company on demand and that sum will be recoverable as a debt.
5. In accordance with our understanding of current tax withholding
requirements the Settlement Payment will be paid without deduction of
income tax. Any income tax or National Insurance contributions on the
Settlement Payment will be for my own account. To the extent that the
Company comes under any obligation to make any further payment of
income tax or National Insurance contributions, interest, costs or
penalties in respect of the Settlement Payment I shall reimburse the
Company immediately upon receipt of written confirmation from the
Company that such sum has been paid and was properly due.
6. I confirm that I have returned all material and / or property belonging
to the Company including but not limited to all books, documents,
papers (including copies), materials, credit cards, keys and other
property of, or relating to the business of, the Company in good
condition as are in my possession which are or were last under my power
or control.
7. I and the Company agree that, save and except as required by law and,
in my case, to my legal adviser and / or spouse , I and the Company
shall not use or divulge to any person, firm or company the terms of
this settlement which I and the Company shall treat as confidential,
nor shall I or the Company make, or cause to be made (directly or
indirectly), any derogatory or critical comments or statements (whether
orally or in writing) about, in my case the Company or any Associated
Company or their directors, officers, agents or employees, or in your
case, me PROVIDED THAT I shall use my best endeavours to ensure that
any such legal adviser and / or spouse shall keep the said terms
confidential.
8. The Company agrees to release me from the restrictive covenant at
Clause 13 of the Employment Agreement.
9. I confirm and acknowledge that following the termination of my
employment I remain bound by my duty of confidentiality to the Company
and any other parts of my employment contract that are expressed to
apply or do apply after the Termination Date with the exclusion of the
restrictive covenants contained in Clause 13 of the Employment
Agreement . Accordingly, I undertake that I will not at any time
following the termination of my employment, without the consent in
writing of the Company, directly or indirectly make use of or divulge
to any person, firm or company any secret or confidential information
of or concerning the Company or any Associated Company which shall have
come to my knowledge during the course of my employment. Confidential
information shall include, but not be limited to:
(a) pricing of products and services;
(b) unpublished financial information regarding;
(c) information regarding product development plans;
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(d) acquisition plans;
(e) supplier and / or customer lists; and
(f) confidential information on personnel.
10. I warrant that I have received independent advice from a relevant
independent adviser (whose name and address are set out below) in
relation to the claims and any complaints that I may have against the
Company or any Associated Company or your directors, officers, agents
or employees or any directors, officers, agents or employees of any
Associated Company and as to the terms and effect of this letter and in
particular the fact that I will not be able to pursue any complaint of
the type described in paragraph 3 above which I may have against the
Company or any Associated Company before an Employment Tribunal.
11. I, having been advised by my said relevant independent adviser, and the
Company, agree that this is a Compromise Agreement and that all of the
conditions under Sections 203 Employment Rights Xxx 0000, S.77.(4) Sex
Discrimination Xxx 0000 (as amended), S.72 Race Relations Xxx 0000,
S.9. Disability Discrimination Xxx 0000, Regulation 35 Working Time
Regulations 1998, S.288(2B) of the Trade Union (Consolidation) Xxx
0000, S.49(4) of the National Minimum Wage Act 1998 regulating the
terms of this Compromise Agreement have been satisfied and I will
ensure that the independent advisor provides to the Company a letter in
the agreed form, as set out at Schedule 2, to confirm the same
12. The Company have agreed to pay up to the sum of (pound)250 plus VAT in
respect of the advice from my said relevant independent legal adviser
in connection with this Compromise Agreement upon receipt of an invoice
addressed to myself but marked payable by the Company following
completion of this Agreement.
13. The Company will grant to me the following share options under the
Company's 2001 Share Option Plan ("the Plan"):-
100,000 options at the price of $0.20
250,000 options at the price of $0.27
50,000 at $0.40.
Such options shall vest on the date of signature of this Agreement by
both parties and shall be exercisable for a period of 60 months from
the Termination Date. Save as set out in this paragraph I shall have no
further rights under the Plan.
14. I agree that following the Termination Date I will not hold myself out
as being connected to or employed by the Company or any Associated
Company.
15. In the event that I commit or have committed a serious breach of my
employment contract or this Compromise Agreement which is discovered by
the Company following the completion of this
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Agreement which would have entitled the Company to terminate my
employment without notice on or before the Termination Date then the
Company will have the right to terminate any of its obligations under
clause 13 of this Compromise Agreement with immediate effect. The
Company confirms that as of the date hereof it is not aware of any
breach or alleged breach committed by me which would allow them to
invoke the provisions of the above. In further consideration of my
agreeing to enter into this Compromise Agreement, the Company and any
Associated Company and their directors, officers, agents or employees
agree:
15.1 to waive any claim they may have against me arising from my employment
or its termination including but not limited as a result of any
previously on-going investigations into my conduct during my
employment; and
15.2 not to institute any proceedings against me in respect of any matter
not contained in this Compromise Agreement including but not limited to
the allegations previously made against me by the Company. For the
avoidance of doubt, it is accepted by the parties that the only ongoing
obligations and rights of action each party shall have to the other
shall be those arising under this Compromise Agreement.
16. I agree that I shall indemnify and hold the Company harmless against
all tax, National Insurance, related penalties or interest charges
arising out of or in connection with the making of any of the payments
(or any part thereof) or the provision of any of the benefits (or part
thereof) under this Agreement. In addition, if I bring any claims in
breach of paragraphs 3.1, 3.2 or my warranties under paragraph 4 I
agree to indemnify the Company against all and any legal costs that the
Company incur in defending such claims on an indemnity basis.
17. Notwithstanding the Contracts (Rights of Third Parties) Xxx 0000, the
parties agree that this agreement may be varied by the written consent
of both parties.
18. The parties hereby declare that no term of this agreement is intended
by the parties to confer a benefit on any Third Party (as defined by
the Contracts (Rights of Third Parties) Act 1999), nor is it intended
to be enforceable by any Third Party save, in each case, an Associated
Company. The provisions of the said Act are hereby excluded.
18.1 I confirm and warrant that I shall not without your consent pursue any
claims as a third party against the parties with whom the Company
contracted to provide benefits to me under the terms of this agreement
or any subsequent amendment thereto or otherwise.
18.2 I will use my best endeavours to procure that any third parties
deriving any benefit from any contractual relationship between us will
not bring any claims against the Company as a result of the Contracts
(Rights of Third Parties) Xxx 0000 and I confirm and warrant that I
will fully indemnify the Company to the extent that any such claims are
made including legal costs on an indemnity basis.
19. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and supersedes all and any prior
understandings, undertakings and promises between
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them, whether oral or in writing, which have been given or may be
implied from anything written or said in negotiations between the
parties or their representatives prior to this Agreement.
20. If any paragraph or part of a paragraph of this Agreement and Schedules
shall be, or be found by any authority or court of competent
jurisdiction to be, invalid or unenforceable, such invalidity or
unenforceability shall not affect the other paragraphs or parts of such
paragraphs of this Agreement and Schedules, all of which shall remain
in full force and effect.
21. The terms of 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 thereof.
22. A company is an "Associated Company" if it is a subsidiary of the
Company or a holding company of the Company of which the Company is a
wholly owned subsidiary or a subsidiary of such a holding company. The
words "subsidiary" and "holding company" shall have the meanings
attributed to them in Section 736 of the Companies Xxx 0000.
23. This Compromise Agreement although marked "without prejudice" will
become final and binding only when signed by both parties and when the
relevant independent adviser has signed the certificate.
I should be grateful if the Company would agree to the above terms by signing
and returning the enclosed copy letter which has also been signed by my relevant
independent adviser.
Yours faithfully,
SIGNED (but not delivered
until the date hereof) as a DEED )
by the said Xxxxx Xxxxxx in the )
presence of:- )
WITNESS
_______
NAME:
ADDRESS:
OCCUPATION:
The above terms are agreed.
Signed
For and on behalf of
WORLD GAMING PLC
Who by signing this Agreement confirms that he/she has the express authority of
the Company and its Board of Directors to bind the Company to the terms hereof
Dated this ____ day of ________________ 2003
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SCHEDULE 1
(Claims and Prospective claims which are being waived under the terms of this
Agreement)
(a) any complaint under the National Minimum Wage Xxx 0000; and /or
(b) any complaint under the Part Time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 including any complaint of less
favourable treatment or being subjected to any detriment; and/or
(c) any complaint under the Transnational Information and Consultation of
Employees Regulations 1999 including any complaint regarding the
contravention, or alleged contravention, of Regulation 27 (Right to
time off) or Regulation 32 (Right not to suffer any detriment) of;
and/or
(d) any complaint arising out of the contravention, or alleged
contravention, of S. 68 (Right not to suffer deduction of unauthorised
subscriptions) S. 86 (Right to be exempt from or object to contributing
to a political fund) S.137 (Right not to be refused employment on
grounds relating to Union membership) S.138 (Right not to be refused
the service of an Employment Agency on grounds relating to Union
membership) S.146 (Right not to be subjected to any detriment on
grounds relating to Union membership or activities) S.168 (Right to
time off for carrying out Trade Union duties) S.169 (Right to paid time
off for carrying out Trade Union duties) or S.170 (Right to time off
for trade union activities) S.188 (Right to be consulted in redundancy
situations) of the Trade Union and Labour Relations Consolidation) Xxx
0000; and/or
(e) any complaint under S.8 of the Employment Rights Xxx 0000 including any
complaint regarding the right to an itemised pay statement; and/or
(f) any complaint under S.15 of the Employment Rights Xxx 0000 including
any complaint regarding the right not to have to make payments to the
employer; and/or
(g) any complaint under S18 of the Employment Rights Xxx 0000 including any
complaint regarding the limits on amount and time of deductions made by
the employer of a worker in retail employment; and/or
(h) any complaint under S.20 and S.21 of the Employment Rights Xxx 0000
including any complaint regarding the limit on amount of payments to an
employer of a worker in retail employment ; and/or
(i) any complaint under S.28 of the Employment Rights Xxx 0000 including
any complaint regarding the right to a guarantee payment; and/or
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(j) any complaint under S.92 of the Employment Rights Xxx 0000 including
any complaint regarding the right to a written statement of reasons for
dismissal; and/or
(k) any complaint under Part VI of the Employment Rights Xxx 0000 including
any complaint regarding the right to time off work for public duties,
to look for work or arrange training, for ante-natal care, for
dependants, for pension scheme trustees, for employee representatives,
or for a young person for study or training; and/or
(l) any complaint under Part VII of the Employment Rights Xxx 0000
including any complaint regarding suspension from work on medical or
maternity grounds; and/or
(m) any complaint under Part VIII of the Employment Rights Xxx 0000
including any complaint regarding a redundancy dismissal during
maternity leave; and/or
(n) any complaint under the Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulations 2002, including any complaint of less
favourable treatment or being subjected to any detriment; and/or
(o) any other complaint to an Employment Tribunal referred to under Section
18(1) of the Employment Tribunals Act 1996 (other than a complaint
referred to in paragraph 3.2 of this Agreement or in this Schedule 1)
where but for a valid Compromise Agreement or Compromise Contract any
contracting out would be void.
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SCHEDULE 2
I hereby confirm the following:
1. I have given Xxxxx Xxxxxx legal advice as to the terms and effects of
the Compromise Agreement and in particular its effects on his ability
to pursue his rights before an employment tribunal.
2. All the requirements of Sections 203 Employment Rights Xxx 0000,
S.77.(4) Sex Discrimination Xxx 0000 (as amended), S.72 Race Relations
Xxx 0000, S.9. Disability Discrimination Xxx 0000, Regulation 35
Working Time Regulations 1998, S.288(2B) of the Trade Union and Labour
Relations (Consolidation) Xxx 0000 and S.49(4) of the National Minimum
Wage Act 1998 have fully and properly been complied with.
3. I am, and was at the time I gave the advice referred to above a
solicitor of the Supreme Court holding a current Practising
Certificate.
4. There is, and was at the time I gave the advice referred to above, in
force cover under a contract of insurance or an indemnity provided for
members of a profession or professional bodies covering the risk of
claim by Xxxxx Xxxxxx in respect of loss arising in consequence of the
advice I gave.
5. I am not, and have not, acted for World Gaming Plc or any Associated
Company in this matter and I consider myself to be independent of World
Gaming Plc or any Associated Company.
Signed
Solicitor : Name
: Firm
: Address
Dated this ____ day of ________________ 2003
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