EXHIBIT 4.(a)(xxi)
DATED as of October 10, 2001
▇▇▇▇▇ NETWORKS NV
and
▇▇▇▇▇▇ ▇▇▇▇▇
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CONSULTANCY AGREEMENT
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Summary of Consulting Terms
Consulting Period: For approximately 24 months beginning October 10 2001
and ending on October 9 2003.
Consulting Fee: US$10,000 per month.
Consulting Subjects: Knowledge and advice related to past activities of
the Company, its subsidiaries and associates;
Strategic development of the Company its
subsidiaries, associates and investments;
Representative activities on behalf of the Company.
Contact: All contact with the Company shall be through the
Chief Executive Officer or the Chief Financial
Officer, or their designees.
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THIS AGREEMENT is made as of the 10th day of October, 2001.
BETWEEN:
1. ▇▇▇▇▇ Networks NV whose registered office is situated at Transpolis
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ Hoofddorp The Netherlands
("the Company") and
2. ▇▇▇▇▇▇ ▇▇▇▇▇, care of Mido Trust & Management, Kaya ▇▇▇▇▇ ▇▇▇▇ ▇-▇,
▇▇▇▇▇▇▇▇▇ # ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Antilles ("You")
WHEREAS
(A) The Company and its Affiliates carries on the business of supplying
advanced networking solutions products and services ("the Business").
(B) You have knowledge and expertise in the Business.
(C) You have knowledge and expertise related to the historical activities of
the Company and its Affiliates.
(D) In reliance upon that knowledge and expertise the Company wishes to
engage you to provide services in relation to the past activities of the
Company and its Affiliates, their marketing strategy, and their strategic
development and such other subjects as may, from time to time, be agreed
("the Services") and you have agreed to accept this engagement on the
following terms.
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IT IS HEREBY AGREED as follows:-
1. DEFINITIONS
1.1 For the purposes of this Agreement the following words or phrases shall
unless the context otherwise requires have the meanings respectively
assigned to them:
AFFILIATES Affiliates means the directly and indirectly
held subsidiaries and associated companies of
▇▇▇▇▇ Networks N.V., which for the avoidance of
doubt includes the Red-M group of companies.
"APPOINTMENT DATE" Means the date of this agreement.
"CONFIDENTIAL Means any and all information of a secret or
INFORMATION" confidential nature which relates to the
Business and which has not for the time being
manifestly and demonstrably come into the
public domain including (without limitation):-
(a) know how technical information expertise
designs strategy data formulae processes
and specifications;
(b) drawings writings and other papers
computer programs and other tangible and
non-tangible manifestations of any items
referred to in paragraph (a) of this
definition;
(c) all rights to and copyright patents
registered design trade marks and other
protection for or relating to the
foregoing;
(d) customer, supplier and price lists
marketing plans terms of contracts
agreements or arrangements;
(e) organisational management and personnel
information;
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(f) financial information, whether actual or
projected.
"CONSULTING FEE" US$10,000 per month.
"SETTLEMENT AGREEMENT" Means the agreement effective October 10, 2001
that you entered into with ▇▇▇▇▇ Technology NV
relating to you leaving the employment of the
▇▇▇▇▇ group.
"TERM OF AGREEMENT" Means the period defined in clause 2 below.
"TERMINATION DATE" Means October 9 2003.
1.2 The headings used in this Agreement are included for convenience only and
are not to be used in construing or interpreting this Agreement.
1.3 Any reference to a person shall include natural persons and partnerships
firms and other such unincorporated bodies, companies, corporate bodies
and all other legal persons of whatever kind and howsoever constituted.
1.4 This Agreement shall be governed in all respects by English law and shall
be subject to the non-exclusive jurisdiction of the English courts.
2. TERM OF AGREEMENT
This Agreement shall have effect from the Appointment Date and shall continue
until the Termination Date unless terminated sooner in accordance with Clause 10
below (the "Term of Agreement").
3. YOUR OBLIGATIONS
3.1 Throughout the Term of Agreement you shall make yourself available to
provide consultancy services to the Company and its Affiliates at such
times as the Company and/or its Affiliates and you shall agree from time
to time for a minimum of 16
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hours per calendar month. These consultancy services may take place in
various countries, and in various locations, as the Company and/or its
Affiliates and you shall agree from time to time (and may include
services you provide remotely, with communications taking place by
telephone or electronic means). In addition you shall provide such ad-hoc
assistance on the telephone or by email as may be required.
Notwithstanding anything to the contrary contained herein, your contacts
with the Company during the Term of Agreement shall be limited to the
Chief Executive Officer and the Chief Financial Officer of ▇▇▇▇▇ Networks
N.V. unless otherwise directed by such individuals.
3.2 Throughout the Term of Agreement you shall offer positive support towards
the Business of Company and its Affiliates, including but not limited to
providing positive support in the transition of your CEO duties to ▇▇▇▇▇▇
▇▇▇▇▇▇. As part of this support you shall provide, upon request, any
names, addresses, telephone numbers, e-mail addresses and other contact
information for those individuals and organisations with which you had
contact in the performance of your duties with the Company. You shall
also provide support to the Company's business efforts externally when
reasonably requested by the Company.
3.3 Throughout the Term of Agreement you shall not be concerned with, solicit
or canvass any business which is competitive or which plans to be
competitive with any business carried on by the Company or its Affiliates
or any business for which the Company or its Affiliates has definite
business plans and where you have prior knowledge of such plans. In the
event you wish to be relieved of this provision, you may request in
writing that the Company waive this provision with respect to a specific
business activity. The Company, in its sole discretion, may choose to
waive this provision in writing within thirty days of receipt of any such
request, but shall not be obligated to do so.
3.4 Throughout the Term of Agreement you shall not, in competition with the
Company, deal with or canvass or solicit any business from any person who
has been at any time during six months of such date a customer of the
Company.
3.5 Throughout the Term of Agreement induce or attempt to induce from the
Company or its Affiliates any manager level employee, any director level
employee, any Vice President, or any salesperson or development engineer
of the Company or its
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Affiliates who is engaged in any business or activity to leave the
employment of the Company or its Affiliates (whether or not this would be
a breach of contract by the employee).
3.6 You acknowledge that the provisions of 3.3, 3.4 and 3.5 are no more
extensive than are reasonable to protect the Company and its Affiliates.
Each of the restrictions in each paragraph or sub-clause above shall be
enforceable independently of each of the others and its validity shall
not be affected if any of the others is invalid. If any of those
restrictions is void but would be valid if some part of the restriction
were deleted the restriction in question shall apply with such
modification as may be necessary to make it valid.
3.7 You agree to continue to comply with any continuing obligations under the
terms of your employment with the Company which survive your termination,
which without limitation, include the following provisions if included in
your employment agreement: PROTECTIVE COVENANTS, CONFIDENTIAL INFORMATION
and NON COMPETITION and the terms of your Settlement Agreement.
3.8 For the avoidance of doubt, this Agreement is separate to any obligations
you may have due to your roles as Supervisory Director or Designated
Supervisory Director of the Company, or in your planned role as
Non-Executive Director of Red-M (Communications) Ltd (and for which there
are, or will be, separate remuneration arrangements).
4. THE COMPANY'S OBLIGATIONS
4.1 The Company will allow you to continue to use, free of charge, the Dell
laptop computer that you have and associated software, and to use the
Company's email server based at Wexham Springs, UK to send and receive
your e-mail during the Term of the Agreement. The Company will maintain
your existing email account to allow you such access, and will provide
you with the IS support necessary to support this e-mail usage and usage
of the Company's network. (For the avoidance of doubt, you may use these
facilities for non-Company activities.) The Company reserves the right to
take away these rights at any time if you do not follow any e-mail or
other IS policy regarding such things as virus control and use of e-mail
that the Company has
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in force from time to time, or if to continue to provide this service to
you becomes uneconomical for the Company.
4.2 The Company will allow you to use, free of charge, such office space at
Wexham Springs, UK as you reasonably require and secretarial support to
enable you to provide the Services and for incidental secretarial
services which you may require. You may also use the Company's address as
a forwarding address for personal mail addressed to you. The Company has
the right to withdraw this support for incidental secretarial services
should this become uneconomical for the Company.
4.3 The Company will not take any action against you for any acts or
omissions by you resulting from your activities under this Agreement. The
Company will give you all reasonable assistance regarding any claims
brought by third parties against you for any acts or omissions by you
resulting from your activities under this Agreement.
5. CONSULTANCY FEES
5.1 In consideration of the provision of the Services the Company shall pay
or shall procure that one of its Affiliates pay you the Consulting Fee
exclusive of value added tax, payable monthly in equal instalments to be
paid on or around the 28th day of each calendar month starting on October
28th, 2001 (backdated if applicable).
5.2 You shall be reimbursed for such reasonable and necessary expenses,
provided major expenses (i.e. anything over US$500 per month) are agreed
in advance.
5.3 All payments to you shall be made against invoices which you supply.
6. CONFIDENTIALITY
You hereby covenant that you will not during the Term of Agreement or at any
time thereafter (save insofar as you may be required to do so in order to fulfil
your duties to the Company or its Affiliates) directly or indirectly use or
disclose or communicate to any person any Confidential Information, except upon
the written request of the Chief Executive Officer or the Chief Financial
Officer of ▇▇▇▇▇ Networks N.V. and with a valid Non-Disclosure Agreement in
place except as required by law or by any regulatory body. In the event that
such disclosure is required by law or regulatory body you shall provide the
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Company with written notice of the proposed disclosure at least two working days
before it makes such disclosure. For the avoidance of doubt Confidential
Information shall not include any information in the public domain save as a
result of a breach by you.
7. TAX LIABILITY
7.1 It is hereby declared that it is the intention of the parties that you
shall have the status of a self employed person and you shall be
responsible for all income tax liabilities and social/payroll tax or
similar contributions in respect of your fees. Subject to clause 7.4 you
hereby indemnify the Company in respect of any claims or demands which
may be made by any relevant authorities against the Company in respect of
income tax costs, penalties, interest and gross up which may be found due
from the Company in respect of the provision of the Services by you.
7.2 Subject to clause 7.4 you covenant to pay to the Company an amount equal
to the amount of any social taxes or similar contributions relating to
the provision of the Services by you for which any claim may be made by
the relevant authorities against the Company.
7.3 Subject to clause 7.4 in the event that a relevant authority determines
that any amount of value added sales tax is or has been incorrectly
charged by you under or in connection with this Agreement you will
immediately on receipt of a written request from the Company repay to the
Company such amounts of sales tax and provide the Company with a valid
and appropriate sales tax credit note.
7.4 In the event of a claim or demand from a relevant tax authority relating
to a payment made by the Company to you under this Agreement the Company
agrees to notify you of such claim or demand and to give you a reasonable
amount of time to respond to the relevant authority about the claim. The
Company will also involve you in all stages of any defence of such a
claim or demand. You have the right to challenge the indemnity you have
given under clause 7.1, 7.2 and/or 7.3 in the event that the Company
makes a payment to settle a claim or demand from a tax authority pursuant
to this clause 7, without your prior approval.
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8. LEGAL RELATIONSHIP
Your relationship with the Company is that of an independent contractor
and not as an employee or agent of the Company. You understand that you
are not authorized to bind the Company or its Affiliates or make any
representations on its behalf in any matter, except as set forth in this
Agreement and in your capacity as Supervisory Board director of the
Company or as director of Red-M (Communications) Limited.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Any discovery or invention or secret process or improvement in procedure
or any trade ▇▇▇▇ or design or copyright made discovered or produced by
you in the course of providing Services hereunder shall immediately be
disclosed to the Company and shall be the property of the Company.
9.2 You shall if and whenever required so to do (whether during or after the
termination of this agreement) at the expense of the Company, apply or
join in applying for letters patent or trade ▇▇▇▇ or other equivalent
protection in the United Kingdom or any other part of the world, for any
such discovery invention process improvement trade ▇▇▇▇ design or
copyright and execute and do all instruments and things necessary for
vesting the said letters patent or trade ▇▇▇▇ or other equivalent
protection when obtained and all right title and interest to the same in
the Company absolutely, as sole beneficial owner or in such other person
as may be required by the Company.
9.3 You irrevocably appoint the Company to be your attorney in your name and
on your behalf to sign execute do and deliver any such instrument or
thing and generally to use your name for the purpose of giving to the
Company the full benefit of the provisions of this clause and in favour
of any third party. A certificate in writing signed by any director or
the secretary of the Company that any instrument or act falls within the
authority hereby conferred shall be conclusive evidence that such is the
case.
9.4 The provisions of this clause 9 shall be without prejudice to the
provisions of the UK Copyright Designs and Patents ▇▇▇ ▇▇▇▇ or similar
legislation that exists in other countries.
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9.5 At the end of the Term you shall return all notes, emails and materials
that you produce, receive or send during the Term of the Agreement
pursuant to providing the Services to the Company.
10. TERMINATION
10.1 The Company may immediately terminate this Agreement in the event of
material misconduct on your part.
10.2 The Company may also terminate this Agreement in the event of a material
breach of this agreement by you. A breach of the agreement shall also
include any failure to perform any of your obligations set forth in
clause 3 above. Any termination by the Company shall be subject to
written notice by the Company, giving you 30 days to correct the breach
raised by the Company.
10.3 For the avoidance of doubt, the Company may only terminate this Agreement
in accordance with clause 10.1 and 10.2, and otherwise the Agreement is
irrevocable on the part of the Company, including but not limited to the
Company's obligation to pay the Consulting Fee.
10.4 You may terminate the Consultancy Agreement at any time in giving one
month's written notice, in which case the Company will have no further
obligation to pay you the Consulting Fee following termination.
11. ASSIGNMENT
Neither party may assign or otherwise transfer any rights or obligations under
this Agreement without the prior consent of the other.
12. RETURN OF DOCUMENTS
You shall promptly whenever requested by the Company and in any event upon the
termination of this Agreement deliver to the Company all correspondence and
other documents papers and records which have been prepared by you or come into
your
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possession in the course of your duties and which is the property of the Company
or its Affiliates and you shall not be entitled to and shall not retain any
copies.
13. MISCELLANEOUS
The proposals contained in this Agreement are made without any admission of
liability.
Signed
For and on behalf of the Company
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Date: 27 December 2001
Signed by
▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Date: 27 December 2001
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