EXHIBIT 10.4
DATED 29TH AUGUST 2001
TNCI UK LIMITED (1)
- AND -
XXXXXX XXXXXXXX (2)
SERVICE AGREEMENT
XXXXXXX GELDARD
SOLICITORS
00 XXX XXXXXXXX
XXXXXXXXXX
XX0 0XX
TEL: (0000) 0000000
FAX: (0000) 0000000
DATE: 16TH AUGUST 2001
PARTIES:
--------
24
(3) "The Company" TNCI UK Limited of Xxx Xxxx, Xxxxx Xxxx, Xxxxx XX0 0XX
(4) "The Executive" Xxxxxx Xxxxxxxx of 0 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx XX00
XXX.
22. EMPLOYMENT AND DURATION
22.1 The Company employs the Executive as Commercial Director.
22.2 The employment of the Executive will commence on 1 March 2000 and
will continue (subject to earlier termination in accordance with
this Agreement) until terminated by either party giving to the other
not less than 6 months' prior notice in writing.
23. HOURS OF WORK
23.1 The Executive's normal hours of work are 8.30 am to 5.00 pm Monday
to Thursday with a 45 minute break for lunch and 8.30 am to 2.00 pm
Friday with a 30 minute break for lunch.
23.2 The Executive will also work such additional hours as may be
reasonably necessary for the proper performance of his duties.
24. PLACE OF WORK AND RESIDENCE
24.1 The Executive will perform his duties at the Company's office in
Derby and/or such other place as the Company reasonably requires
whether inside or outside the United Kingdom but the Company will
not without his prior consent require him to go to or reside
anywhere outside the United Kingdom except for visits in the
ordinary course of his duties.
25. PAY
25.1 During his employment the Company will pay to the Executive a basic
salary at the rate of(pound)90,000 per year.
25.2 The Executive's basic salary will be reviewed by the Company in
April each year and may be increased by the Company with effect from
that date by such amount if any as it thinks fit.
26. PENSION AND INSURANCE BENEFITS
26.1 The Company has no Pension Scheme applicable to the Executive's
employment but the Company will make contributions on a monthly
basis to a Pension Scheme nominated by the Executive at a rate of 5%
of the Executive's monthly basic salary.
26.2 The Company will bear the costs of the Executive being a member of a
reputable permanent health insurance scheme for himself, his spouse
and dependant children and a reputable private medical expenses
insurance scheme subject always to the rules of such scheme.
26.3 The Company will bear the costs of comprehensive business travel
insurance for the Executive in respect of travel undertaken by the
Executive in the performance of his duties under this Agreement.
27. OTHER BENEFITS
27.1 The Executive will be entitled to subscribe for up to 2% of the
equity share capital in the Company at par pursuant to the terms of
the Subscription Agreement to be dated on or about the date of this
Agreement.
25
27.2 The Executive will be entitled to participate in the TNCI UK Limited
Executive Bonus Scheme as adopted on or about the date of this
Agreement and will be entitled to 10 points from the Bonus Fund
generated by such scheme.
27.3 The Executive will be entitled to participate in the GTLL Stock
Option Scheme and will be granted options in respect of 150,000
shares of common stock pursuant to such scheme.
28. CAR
28.1 The Company will provide the Executive with a car of a make, model
and specification selected by the Executive (equivalent to a BMW
530d automatic) for business and private use by him and his family.
28.2 The Company will bear all expenses of the car.
28.3 The Executive will:-
28.3.1 comply with all the Company's regulations with respect to
company cars;
28.3.2 notify the Company of any accidents involving his company
car;
28.3.3 on the termination of his employment return his company car
and keys to the Company;
28.3.4 keep the vehicle in good running order and in a clean and
tidy condition;
28.3.5 keep such records relating to its use as are necessary to
satisfy any Inland Revenue regulations.
29. EXPENSES
29.1 The Company will reimburse to the Executive all travelling, hotel,
entertainment and other expenses reasonably incurred by him in the
proper performance of his duties subject to the production to the
Company of such vouchers or other evidence of actual payment of the
expenses as the Company may reasonably require.
29.2 The Company will pay the cost of the telephone rental in respect of
the Executive's home telephone and the cost of a mobile phone
together with the cost of all calls made in performing his duties
under this Agreement.
30. HOLIDAYS
30.1 In addition to English statutory holidays the Executive is entitled
to 25 working days' paid holiday in each year which runs from the
1st January to 31st December.
30.2 For the holiday year during which his employment commences or
terminates, the Executive is entitled to 2 working days' holiday for
each complete calendar month of his employment during that holiday
year.
30.3 On the termination of his employment the Executive will be entitled
to pay in lieu of outstanding holiday entitlement or will be
required to repay to the Company any salary received for holiday
taken in excess of his actual entitlement.
30.4 For the purpose of calculating any holiday pay one day's pay will be
the Executive's basic annual salary divided by 260.
26
31. CONFLICT OF INTEREST
31.1 During this Agreement the Executive will not (except with the prior
written consent of the Company) be directly or indirectly engaged
concerned or interested in any other business which is wholly or
partly in competition with the business carried on by the Company
provided that the Executive may hold any units of any authorised
unit trust and up to three per cent of the issued shares, debentures
or other securities of any class of any company whose shares are
listed on a Recognised Investment Exchange.
31.2 The Executive will not directly or indirectly receive or obtain any
gift discount rebate commission or other inducement (whether in cash
or kind) in respect of any sale or purchase of any goods or services
effected or other business transacted (whether or not by him) by or
on behalf of the company. The Executive will immediately account to
the Company for any amount or inducement actually received by him.
32. SHARE DEALINGS
32.1 The Executive will comply with every rule of law, and of the Company
in relation to dealings in shares, debentures or other securities
and unpublished price sensitive information affecting the shares,
debentures or other securities of the Company. In relation to
overseas dealings the Executive will 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.
33. CONFIDENTIALITY
33.1 The Executive will not either during his employment or at any time
after its termination:-
33.1.1 disclose any Confidential Business Information to any person
or persons (except in the proper performance of his duties or
as required by law);
33.1.2 use any Confidential Business Information for his own
purposes or for any purposes other than those of the Company;
33.1.3 through any failure to exercise all due care and diligence
cause any unauthorised disclosure of Confidential Business
Information.
34. INCAPACITY
34.1 If the Executive is absent because of illness injury or other
incapacity he will notify the Company forthwith.
34.2 Immediately following his return to work the Executive will complete
a Self-Certification form detailing the reason for his absence.
34.3 If the Executive is so absent for seven or more consecutive days he
will provide a medical practitioner's statement on the eighth day
and weekly thereafter so that the whole period of absence is
certified by such statements.
34.4 If the Executive is absent from his duties hereunder due to illness,
injury or other incapacity duly certified in accordance with the
provisions of sub-clause 13.1 hereof he will be paid:
34.4.1 his full remuneration hereunder for up to 130 working days'
absence in any period of 12 months;
27
34.4.2 one half his remuneration hereunder for up to a further 65
working days' absence in any period of 12 months;
34.4.3 thereafter such remuneration if any as the company may in its
discretion from time to time determine.
Provided such remuneration will not be less than the proceeds received by
the Company in respect of the Executive under the Company's permanent
health insurance scheme (after paying pension contributions) such
remuneration shall be inclusive of any Statutory Sick Pay or other
benefits recoverable by the Executive (whether or not recovered).
34.5 For Statutory Sick Pay purposes the Executive's qualifying days will
be his normal working days.
34.6 If the Executive shall receive any payment(s) from a third party
(including his own Insurance company) in respect of damages for
absence from employment due to incapacity, then any sum(s) paid by
the Company to him in respect of the same period of absence shall be
recoverable by the Company out of such damages as money due to the
Company.
35. OTHER EMPLOYMENT
35.1 The Executive will devote the whole of his time, attention and
abilities during his hours of work for the Company to his duties for
the Company. The Executive will not, whether directly or indirectly,
undertake any other duties, of whatever kind, during his hours of
work for the Company.
35.2 The Executive will not without the prior written consent of the
Company (which will not be unreasonably withheld) engage, whether
directly or indirectly, in any business or employment which is
similar to or in any way connected to or competitive with the
business of the Company in which the Executive works or which could
or might reasonably be considered by others to impair the ability of
the Executive to act at all times in the best interests of the
Company.
36. TERMINATION OF AGREEMENT
36.1 IMMEDIATE DISMISSAL
The Company may terminate this Agreement with immediate effect if the
Executive:
36.1.1 commits any act of gross misconduct or repeats or continues
(after written warning) any other serious breach of his
obligations under this Agreement or
36.1.2 is convicted of any criminal offence punishable with 6 months
or more imprisonment (excluding an offence under road traffic
legislation in the United Kingdom or elsewhere for which he
is not sentenced to any term of imprisonment whether
immediate or suspended); or
36.1.3 becomes bankrupt or makes any arrangement or composition with
\ his creditors generally.
36.2 TERMINATION PAYMENT
On the termination of this Agreement, other than by way of immediate
dismissal under clause 15.1 above, the Company will make a payment to the
Executive of a sum equivalent to 50% of the Executive's then basic annual
salary in addition to any other rights, statutory or otherwise, which the
Executive may have as a result of the termination of this Agreement.
28
37. RETIREMENT
37.1 Upon the Executive reaching the Company's normal retirement age of
65 his employment, if not previously determined under the provisions
of clauses 13, 14, 15 or otherwise, shall automatically terminate
and without compensation, notices, or damages being given to the
Executive and without any payment which would otherwise have been
due to the Executive under clause 15.2 above.
38. NON SOLICITATION
38.1 After the termination of the Executive's employment for any reason
the Executive will not for a period of three months from such
termination either directly or indirectly on his own account or on
behalf of any other person, firm or company solicit custom from any
person, firm or corporation who or which was a customer of the
Company and with whom the Executive had dealings on behalf of the
Company during the final six months of the Executive's employment by
the Company.
38.2 The Executive will not for a period of three months immediately
following the termination of his employment either directly or
indirectly on his own account or on behalf of any other person, firm
or Company solicit any person who is a senior employee of the
Company on the date of the termination of the Executive's employment
to leave their employment with the Company.
39. GENERAL
39.1 STATUTORY PARTICULARS
The further particulars of terms of employment not contained in the
body of this Agreement which must be given to the Executive in
compliance with Part 1 of the Employment Rights Act 1996 are given
in Schedule 1.
39.2 PRIOR AGREEMENTS
This Agreement takes effect in substitution for all previous
agreements and arrangements whether written or oral or implied
between the Company and any Associated Company and the Executive
relating to the service of the Executive all which agreements and
arrangements shall be deemed to have been terminated by mutual
consent as from the date of commencement of the Executive's
employment under this Agreement.
39.3 PROPER LAW
The validity construction and performance of this Agreement will be
governed by English Law.
39.4 ACCEPTANCE OF JURISDICTION
All disputes, claims or proceedings between the parties relating to
the validity, construction of performance of this Agreement will be
subject to the non-exclusive jurisdiction of the High Court of
Justice in England and Wales ("the High Court") to which the parties
irrevocably submit. Each party irrevocably consents to the award or
grant of any relief in any such proceedings before the High Court.
29
40. ACCRUED RIGHTS
The expiration or termination of this Agreement however arising will not
operate to affect such of the provisions of this Agreement as are
expressed to operate or have effect after then and will be without
prejudice to any accrued rights or remedies of the parties.
41. INTERPRETATION AND DEFINITIONS
41.1 In this Agreement:
41.1.1 the headings to the clauses and the index are for convenience
only and have no legal effect;
41.1.2 the singular includes the plural and vice versa;
41.1.3 the masculine includes the feminine and vice versa;
41.1.4 reference to any Act or statutory provision includes any
enactment modifying or replacing it.
41.2 "Confidential Business Information" means all and any Corporate
Information, Marketing Information, Technical Information and other
information (whether or not recorded in documentary form or on
computer disk or tape) to which the Company attaches level of
confidentiality commensurate to those forms of information or in
respect of which it owes an obligation of confidentiality to any
Third Party:
41.2.1 which the Executive will acquire at any time during his
employment by the Company but which does not form part of the
Executive's own stock in trade; and
41.2.2 which is not readily ascertainable to persons not connected
with the Company either at all or without significant
expenditure of labour, skill or money.
41.3 "Marketing Information" means all and any information (whether or
not recorded in documentary form or on computer disk or tape)
relating to the marketing or sales or any past, present or future
product or service of the Company including that limitation sales,
targets and statistics, market share and pricing statistics,
marketing surveys and plans, market research report, sales technics,
price lists, discount structures, advertising and promotional
material, the names, addresses, telephone numbers, contact names and
identities of customers and prospective customers of and suppliers
and potential supplies to the Company, the nature of their business
operations, their requirements for any product or service sold to or
purchases by the Company and all confidential aspects of their
business relationship with the Company.
41.4 "Technical Information" means all and any trade secrets, secret
formulae, processes, inventions, designs, know how discoveries,
technical specifications and other technical information (whether or
not recorded in documentary form or on computer disk or tape)
relating tot he creation, production or supply of any past, present
or future product or service of the Company.
41.5 "Associated Company" means a company which is from time to time a
subsidiary or a holding company (as those expressions are defined by
Section 736 of the Companies Xxx 0000 as amended prior to the date
hereof) of the Company or a subsidiary (other than the Company) of a
holding company of the Company.
42. NOTICES
43. Any notice to be given by a party under this Agreement must be in writing
and must be given by delivery at or sending by first class post or
facsimile transmission or other means of telecommunication in permanent
written form to the last known postal address or relevant
telecommunications number of the other party. Where notice is given by
sending in a prescribed manner it will be deemed to have been received
when in the ordinary course of the means of transmission it would be
received by the addressee. To prove the giving of a notice it will be
sufficient to show it was despatched. A notice will have effect from the
sooner of its actual or deemed receipt by the addressee.
30
SCHEDULE 1
Part 1 Employment Rights Act 1996
---------------------------------
The following information is given to supplement the information given in the
body of the Agreement in order to comply with the requirements of part 1 of the
Act.
1. The Executive's employment by the Company commenced on 1 March 2000.
6. No employment of the Executive with a previous employment counts as part
of the Executive's continuous employment with the Company.
7. No Contracting Out Certificate pursuant to the provisions of the Xxxxxxxx
Xxxxxxx Xxx 0000 is held by the Company in respect of the Executive's
employment.
8. The Executive is subject to the Company's Disciplinary Rules and
Disciplinary Procedures copies of which have been given to the Executive.
9. If the Executive has any grievance relating to his employment (other than
one relating to a disciplinary decision) he should refer such grievance to
the Managing Director of the Company.
SIGNED BY
---------
the said Xxxxxx Xxxxxxxx
In the presence of:-
WITNESS: Signature:
Name (block capitals):
Address:
Occupation:
SIGNED by
TNCI UK LIMITED
acting by a director and its
secretary or by two directors
Director
Director/Secretary
31
